No. 6242 IN THB ®0ttrt 0f f lli«0k 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, AppeUet. STATEMENT OF THE CASE, BRIEF OF POINTS AND AUTHORITIES, ARGUMENT FOR APPELLANT. APPENDIX. I. Opinion of Trial Court, n. Monographs of Dr. W. F. Poole and Governor Edward Coles. III. Early Documents. WILLIAM H. STEAD, Attorney General^ WALTER REEVES, MERRITT STARR. Special Counsel. For Appellant. PECK, MILLER & STARR, REEVES, OSBORN & GRIGGS. Of Counsel for Appellant. CHANCERY. Appeal from Circuit Court, Grimdy County. Honorable Julian W. Mack, (temporarily sitting as Judge of said Court at the request of Honorable Samuel C. Stouqh, Judge of said Court), Judge, Presiding. OVXTHOftP > WAKXKN rUMTIira 00.. CHICAGO Return this book on or before the Latest Date stamped below. University of Illinois Library OU 2^ IjC L161— H41 Digitized by the Internet Archive in 2017 with funding from University of Illinois Urbana-Champaign Aiternates https ://arch i ve . o rg/detai Is/peopieof stateof iOO i i i i_0 IN THE x-e g 3 s of §Uinais. 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. STATEMENT OF THE CASE. May it Please thei Court : This is an Information in chancery brought by The People at the relation of the Governor and Attorney General, averring the invalidity of certain contracts made by the Canal Commissioners of the State with the defendant appellee, and the wrongf illness of the acts of the defendant as holder thereof in erecting a dam and power house on lands of the State in the bed of the Des Plaines Eiver, which was and is a navigable stream, and attaching the same to the tow-path bank of tlie Illinois and Michigan Canal and in using the tow-path bank as a retaining wall for its water-power pool and flooding the tow-path bank, the riparian canal lands and several miles of the 90-foot strip of canal bank, which was nec- essary to the canal, and was reserved from sale or grant by law. By the contracts, the Canal Commissioners assume to authorize 0110 (iriswold iuid liis assigns (arid dofondarit, afrpellee, claims as siK'li assi^Ti) as follows: I>y Kxliilrit A (^^Tirr: Perpetuat. Plowage Contract”) (Abst. )))). 2S-:P)) : (1) To build and maintain in iierpetnity a water-power dam and other works across tlie Des Plaines liiver at and near its montli (Ex. A, Cl. 1) ; (2) To attach (and maintain in ])er])etuity) the water-power dam to tlie tow-jiatli and canal embankment, which was built by the canal authorities and is needed to retain the canal waters in place, and divert said canal embankment from its necessary and lawful use (Ex. A, Cl. 4 and Cl. 9) ; (3) To flood in perpetuity the canal embankment next the river at the site of such proposed dam and above the same and use the canal embankment in perpetuity as a retaining wall for the water-power pool (Ex. A, Cl. 2) ; (4) To flood in perpetuity the reserved 90-foot strip of land bordering the canal and between the canal. and river at the site of such proposed dam and for several miles up-stream above said proposed dam (Ex. A, Cl. 2) ; (5) To flow in perpetuity the canal riparian lands between the Des Plaines Piver and the canal (Ex. A, Cl. 2) ; (6) To raise the tow-path, attach and enclose a levee thereto, use the gravel and other material (building stone, piers, etc.) of the canal and its aqueduct in constructing such works and per- petually maintain the same (Ex. A, Clauses 3, 4, 6, 7 and 8) ; (7) To enter upon or fill in portions of the canal in perpetuity for the puiq^ose of maintaining such works (Ex. A, Cl. 9) ; (8) To divert and turn back from the Des Plaines River the tributary stream known as the Kankakee Cut-off and make it run backward and into the Kankakee River, as an outlet or si^illway for high waters from the water-power pool (Ex. A, Cl. 5) ; (9) To convert the I. & M. Canal, commonly called the Kan- kakee Feeder, into a feeder of the water-power pool and in so doing excavate and remove (i. e., destroy) so much of the Caual Feeder, acquired and constructed by the State at great expense as part of the canal (and which formerly fed the waters of the •> ft l\ankak(H> ivivor into llio (‘anal), as (‘xlcnids noi-l li vvanlly arnJ Ix*- yoiul tlio l)(‘s riaines l\iv(n- (Kx. A, CL o) ; By klxliibit C Ixankakek CnnDKJt LnAsn and Bivnit CJon- tkact”) (Al)st., F)()-4()) : (10) To use the reinainder of tlie Kankakee Feeder as a tribu- tary of the defcMidant’s ])ro|)osed water-power })larit (by lease, Fx. C, for 20 years with provision for renewal subject to right of cancellation by the Canal Commissioners) (Ex. A, CL 5) ; (11) To appropriate the waters of the Kankakee River and empty them therel)y into defendant’s water-power pool above the dam, instead of letting them flow naturally into the Illinois below (Ex.C); By Exhibit B (^‘The 40 Year Lease”) (Abst., pp. 34-35) : (12) To lease for 20 years, with a first right of renewal for 20 years more (in violation of the statute which limited leases of canal property to 20 years) both the 90-foot strip, the riparian tract of canal lands in Section 31 and part of the Kankakee Feeder and its 90-foot strip, subject to the prior right of flowage thereof (Ex. B) ; By Exhibit J. (The Deed) (Abst., pp. 46-47) : (13) To sell by the act of a clerk and convey the flooded and leased riparian tract of canal lands between the canal and the river in fee (Ex. J) ; By Exhibit K (“The Pole Line Contract”) (Abst., xip. 47-49) : (14) To maintain a line of xiower xioles and wires 25 miles long upon the tow-path of the canal (Ex. K). DIVISION ONE. The State avers that in making these grants the Canal Com- missioners went outside their x:)rovince and authority and acted in violation of the statutes and xiolicy of the State; and that these contracts are void. DIVISION TWO. The State further avers that by virtue of sundry canal statutes the title to the bed of the Des Plaines River in Section 25, Town- ship 34, Range VIII east of the 3d P. M., in Grundy County where 4 apix'lloo i)r()i)()sos to eonstniet this dam, never left tlie State; that th(‘ State owns the !)ed of the river at this })laee; and tlie dam will he an intiaision and pnrprestnre upon its pro))erty. DIVISION THKEK. The State further avers that the Des Plaines River at the place in (piestion and above is a navigable stream, and that the erection of this dam will interfere witli the ])ublic right in the stream, ob- striK't the nse of the river and constitute a nuisance. The State therefore on each of these grounds prays an injunc- tion against the erection of the dam and works, and for general relief. For convenience we present the statement as to each of these three divisions separately. Other Pleadings — Decree. The defendant tiled an answer admitting the making of the con- tracts and claiming as assignee thereof, insisting on their validity and questioning the right of the State at the relation of the Gov- ernor and Attorney General to attack the contracts. The answer denied the title of the State to the bed of the stream and denied, that the rivei' was a navigable stream. The defendant alleges that prior to beginning work on the dam one Charles A. Munroe submitted plans thereof to the AVar De- })artment of the United States; that the Chief of Engineers of the United States Army referred the matter to one Lieut. Col. Bixby of the Corps of Engineers of the United States Army to examine and report recommendations thereon; said Bixby negotiated with H. M. Snapp ^^and the water-power representatives,” and talked it over with Mr. AVoermann, and recommended that the AVar Depart- ment waive objections provided Alunroe would agree to certain ])rovisions in the supposed interest of the Eederal Government; that thereupon Robert Shavv^ Oliver, Assistant Secretary of AVar, sent a letter to Munroe, stating that if the conditions were com- ]died with in the opinion of the Chief of Engineers and witli the (*()iu*urr('ii('(‘ of lli(' I )(‘i);irliin‘iit, llinl, Hu* work as |)r()))()S(3(l was in i»’(MUM‘aI harmony with th(‘ work of iinpi'ovcmKMil r(*('omm(‘n(l(Hl hy llio l)Oar(l of khii»iiu‘(‘rs in IIons(‘ Dooimuml and slating: “Inasnnudi, liowovco', as (‘on^ross has not as y(‘l anthoi-iz(;d the im])rovonKmt of this riv(‘r, this (l(^))arlm(‘nl (lo(‘s not it ex})e(iient to take further and detinit(‘ aidion in the inatt(*r of approving- the plans.” Tlie defendant admitted that thereipion it liad proceeded with tlie work of erecting tlie dam and |)ower house. Tile defendant set np divers deeds, liy which it claimed title to the riparian lands in the Canal Sections, in which the site of the dam is located, — denied that the Canal Acts had the effect of reserving the bed of the river from sale; and averred that it owned the bed of the river; and denied that the 90-foot strip was ]iart of the canal, or necessary to its use, or reserved from sale by law. The State hied a general replication and the cause was heard upon the merits, resulting in a decree dismissing the Information for want of equity. The Facts As to Canal Land Grant — Survey of and Title to 90-Foot Strip. By Act of Congress March 2, 1827 (Stead’s Canal Laws, p. 2),^^ the United States — granted to the State of Illinois, for the purpose of aiding the said State in opening a canal to unite the waters of the Illinois Kiver with those of Lake Michigan, a quantity of land equal to one-half of hve sections in width, on each side of said canal, and reserving each alternate section to the United States, * * * from one end of the said canal to the other ; * * * ? j In selecting the canal lands, the odd-numbered sections w^ere so selected and the even-numbered sections were reserved by the United States. By Section Id (Stead’s Canal Laws, p. 32) the Act of January ' ,*The following abbreviations, viz. : “Stead’s Canal Laws,” “Canal Laws,” “Canal Comp.,” “Comp. Canal Laws,” are used to refer to the compilation entitled, “Laws of the United States and Laws and Resolutions of the State of Illinois in relation to The Illinois and Michigan Canal, compiled by W. H. Stead, Attorney General, Springfield, 111., Phillips Brothers', State Printers.” 0, 18r)(), lor tlio coiustriietioTi of the canal, desci'ibed the dimensions of the canal — reserving' ninety feet on eacli side of said canal, to enlarge its ca]aaci’ty.” In lcS4()-7, wlien tlie canal was being laid out and constructed, the Canal Trustees caused a strip of land 90 feet wide on each side of the canal to l)e laid out, surveyed and marked off as a reserve strip from one end of the canal to the other; and platted the meander line of the l)es Plaines Eiver from the point marked by the Government Land Survey of 1821 as ^^Head of Navigation” to its mouth. In 1872, by the Act of March 7, Section 5, the Legislature en- acted — ^Ghat no part of the ninety feet strip along the canal * * * shall be sold.” (Canal Comp., p. 153.) By the Act of March 27, 1874, Section 8, Clause 8, the Legisla- ture authorized the Canal Commissioners — ‘‘‘■Eighth — To sell and convey * * * any canal lands * * * other than those connected with water-poiver upon the said canal, and the ninety feet strip * * *” (Stead’s Canal Laws, p. 159.) By the Act of April 21, 1899, the Legislature repeated this pro- vision. (Stead’s Canal Laws, p. 175.) This was in force in 1904, at the time when the contracts were made. The Canal Commissioners owned a strip of land 90 feet wide along the canal in the section here involved, as a part of the canal ; and they also owned, as unsold canal lands, the riparian tract half a mile long constituting the fraction of Section 31, Township 34 North, Range 9 East, which bordered the Des Plaines River and lay between it and the canal for a distance of from half a mile to a mile upstream from its mouth. KVKN1\S 11)04-5. 45 IK (5)ntjiaci’s. Ex 1 11 r> IT A TO I N FORMATION 45 I F PFRPFTUAL EfOWA(;F (5)ntraot. (Abstract ])}). Se])teinber 2, ]904, a contract between Canal Commissioners and Harold E. Griswold, by wliicli it was recited and agreed: 4'hat said Griswold claims to be riparian owner along Des Plaines and Illinois Elvers in Grundy and Will Counties ; that he is about to im- prove Des Plaines Eiver by a dam and other works across its mouth in Grundy County, with crest of such height that pool formed thereby will he on a level with Lake Joliet (a portion of said Des Plaines Eiver in Will County), and is about to improve said Illinois Eiver by deepening its channel below the dam in Sec- tion 25, 34 N., E. 8 East; that the State is a riparian owner at different points on Des Plaines and Illinois Eivers within terri- tory covered by said contract, as well as owner of lands under control of Canal Commissioners, not connected with water-power upon Illinois & Michigan Canal ; that said riparian rights and said land have never produced a revenue; that said lands are unproduc- tive of revenue, swamj^y, unfit for cultivation and partially cov- ered with water; that said lands are so situated that its riparian rights cannot be made available to the State to create water power ; that Griswold is desirous of obtaining right to use, and overflow by said dam (in such manner as will not interfere with naviga- tion on the Illinois & Michigan Canal) so much of said property as may be necessary in constructing dam and other works and in deepening the channel of the Illinois Eiver. Therefore, and in consideration of premises and of $2,000 paid to Canal Commissioners, it is agreed: 1st. Canal Commissioners consent that Griswold shall have right and authority in so improving the Des Plaines Eiver, to construct a dam and other works across the Des Plaines or Illi- nois Eiver at a point near confluence of Des Plaines and Kankakee Eivers in Grundy County, Illinois, with crest at elevation not ex- ceeding minus 73.2 Chicago datum, but in no event shall back s water eauscul thereby extend })ey()nd iiortherty limits of ^^Lake Joliet” (a wide poi'tion of Des Plaines River about six miles long, south of Joliet, Will County) ; tliaf Griswold ma}^ exeavate in and deejxm ehannel of Illinois River in Section 20. 2d. (jriswold sliall liave right to flow: (a) The ninety-foot reserve strip of Illinois & Michigan Canal in Sections 25 and 3t), Townshij) ?A North, Range 8, Grundy County, etc., and in Sections 51, 30, 29 and 20, T. 3-t N., Range 9, in 5Vill County, up to the canal hank; (h) Also so much of the north fraction of said Section 31, as lies south of the ninety-foot reserve strij) along the tow-])ath side of 'the Illinois & Michigan Canal, where same may he overflowed hy construction of said dam and other works with said crest; (c) Together with right to flow water u]) against the tow-path hank of the Illinois & Michigan Canal in said sections, provided the tow-path shall he ])rot9cted and preserved as hereafter pro- vided. 3d. . Gi'iswold shall have right to excavate in and remove so much of the Kankakee Feeder (an abandoned feeder of Illinois (fc Michigan Canal) lying north the Des Plaines River, and soiitli of the ninety-foot strip, in Section 21, T. 34, R. 9, in AVill County, as may he necessary to discharge the waters of the Des Plaines River through said Section 31 in a proper manner, and have j)rivi- lege of removing the old aqueduct piers in said section. 4th. Griswold shall have right to erect, attach, repair and maintain said dam and other works up against the tow-path hank of the Illinois & Michigan Canal in said Section 25, hut not so as to interfere in any manner with the use of said tow-path in con- nection with said canal. 5th. Griswold shall have right to turn and divert from Des Plaines River into Kankakee River a stream of water called ‘Dvan- kakee Cut-off,” through, over and across said Kankakee Feeder and ninety-foot strip on each side of said Feeder in Section 5, 33 N., R. 9, etc., and Griswold is granted right to construct on hanks of said Feeder controlling gates as a flood protection from said Kankakee River. fith. Griswold is charged with duty, subject to direction of ('niiiil romniissioiK'rs or ()lli(*r oHioxo'S or lo i-jiiso lli(‘ lovv- or hank of ilio Illinois & Mic'lii^ari (kuial from its f)r(;S(;rit not loss than two root and to any additional li(n in pood condilion. Raising of tow-i)atli shall (ix- tond from point in Grundy County where dam or otlier strnetnre intersects said tow-})ath hank, to L()(‘k No. 7 in S(‘etion 17, T. ‘U X., R. 9 East, et(‘., and when raised the width of top of tow-path })ank shall ('oiiform to present width of tow-path. 7th. Permission and authority is given Griswold to attach and close a levee to the tow-path hank of the Illinois & Michigan Canal at ])oint in said tow-path hank where the east and west half-sec- tion line of Section 20, T. 34 N., B. 9 East, intersects said tow-])ath hank ; and also to construct levees on east and west hanks of Du Page Biver from the dam across said river to north line of Sec- tion 20, T. 34 N., B. 9 East, and attach and close said levees to west and east sides respectively of said dam across the DuPage Biver in said Section 17, as indicated hy a blue print attached. 8th. Permission is given Griswold to use gravel or material lying along said Illinois & Michigan Canal, property of the State, as may he necessary to raise said tow-path hank of said Illinois Michigan Canal. Such material to he taken from places indicated or approved hy superintendent or other agent designated hy Canal Commissioners or other officers in charge. 9th. Griswold is authorized to enter upon lands of the State, part and parcel of the Illinois & Michigan Canal and upon said Canal itself in manner and to the extent that shall he necessary to raise and maintain tow-])ath as above ])rovided, and attach and huild said dam or works onto said tow-path hank as herein pro- vided, and repair, maintain or renew same as shall become neces- sary to preservation thereof. 10th. Griswold shall raise certain buildings owned hy the State and used in connection with the Illinois & Michigan Canal, level with tow-path when same is raised, and furnish two acres to he used by the Canal Commissioners in connection with said huildings as garden. Said work shall he done to satisfaction of superintend- ent or agent in charge of said canal. 10 1 Itli. The work sliall l)e done under supervision and to the sat- istacdion of Canal C^oinmissioners or tlieir agent and not otherwise; and when (‘oinpleted shall at all times l)e ke]:)t and maintained hy said second party under like supervision and to ap]:)roval of Canal (k)mniissioners 07 their agent. T2th. Cost of inspecting the work shall be paid by Griswold. KUh. Griswold shall be responsible for and pay damages that may be sustained l)y State, or Canal Commissioners, or canal prop- erty, or persons or property using said Illinois & Michigan Canal, or occasioned by construction of the works or made by second ])arty, or in repair or maintenance thereof, or occasioned by use of dam, or works. This agreement shall be binding upon and inure to the benefit of the respeotive successors and assigns of the parties hereto. Exhibit B — Lease. (Abstract, pp. 34-35.) September 2, 1904, the Canal Commissioners made a lease to Griswold, purporting to lease: The ninety-foot strip along the tow-path side and outside the tow-path of Illinois & Michigan Canal in said Sections 25 and 36; And said ninety-foot strip in said sections 31, 30, 29 and 20, in Township 34 North, Range 9 East; Also that part of north half of said Section 31 lying south of the ninety-foot reserve strip along the tow-path side of said canal. Also that i3art of Kankakee Feeder and ninety-foot strip on each side of said Feeder in said Section -31, Township 34 North, Range 9 East, and in Section 5, T. 33 N., R. 9 East, etc. Term : From September 2, 1904, to September 2, 1924, and is made subject to contract. Exhibit A. Consideration for said lease is $500 for the full term. Said lease charges Griswold with knowledge of all the provisions contained in Exhibit A. This lease also provides that Griswold shall have first right to release said premises at expira- tion of said lease by paying therefor as much as shall be offered by any other person or party therefor. Provided, however, such rent- 1 1 III may, at option of (Janal ( ^mimissiomn-s, Ixi (iximI hy np- pi'aisors, hiii, in no ovoni for loss than anionnt tixcul in lliis l(;as(?. (triswold oovoivanis am] a^roos tliat lio will, and lior(;l)y offors to pay the saino roiital as Iioroinliororo a^r(‘od to ho [laid for anotlior tonn of twonty yoars, to he^'in at the exipiration of the term liorxdiy granted. hi ease Griswold shall desire to re-rent said proyierty for a further term of twenty years, he shall notify the said Canal Com- missioners in writing at least one year before the expiration of the 20 years. The covenants herein shall extend to and he binding upon the heirs, executors, administrators, successors and assigns of the parties to the lease. Exhibit C — Kankakee Feeder Lease and River Contract. (Abstract, pp. 36-40.) August 8, 1905, Canal Commissioners again contracted in writing with said Griswold, reciting that Griswmld has applied to Canal Commissioners to lease : Right of State to divert waters of Kankakee River into Kan- kakee Feeder and discharge same into the Des Plaines River in Section 31, T. 34 N., R. 9 East, etc. Also right of State to reconstruct State dam across Kankakee River in Section 9, T. 33 N., R. 9 Fast. And right of State to repair banks of Kankakee Feeder and con- struct at each end of feeder suitable gates for controlling discharge of waters through said feeder. Recites that the A., T. & S. F. R’y Co., and the C. & A. R’y Co., have made sejiarate fills or embankments across said feeder in Section 9, witli permission of Canal Commissioners, and are using same as ])art of road-beds across said feeder. Wherefore, in consideration of premises, covenants and agree- ments of Griswold hereinafter following. His aplication is granted; and Canal Commissioners lease to Griswold the rights of the State now within control of Canal Com- missioners, to wit: SiK'li rig-lit as is now imder control of Canal Commissioners to divert waters of Kankakee River into Kankakee Feeder and discharge same into l)es Plaines River in Section 31; together witli riglit of State now under control of Canal Com- missioners to restore and reconstruct dam across Kankakee River in Section 9, but not liigher than heretofore. Also right of State within control of Canal Commissioners to construct at each end of Kankakee Feeder suitable gates for con- trolling discharge of waters of Kankakee River through such feeder; And such right as Canal Commissioners have to enter upon Kankakee Feeder and dam in connection therewith, for repairing banks of feeder, or the dam across Kankakee River, or gates at each end of Feeder. Term: Twenty years from date (August 8, 1905), subject to rights of said railways and to provisions of certain leases heretofore made to Harold F. Griswold and Charles A. Munroe. Consideration — $150 per year. Griswold shall have the right to cancel lease at any time at his option after five years from date; and at expiration of or termination otherwise, Griswold shall restore said dam and feeder to present condition and restore flowage of all water to present channel unless directed not to do so. Griswold shall save and keep harmless the Canal Commissioners from all damages growing out of the work which said Griswold shall or may do, and before any work is done under this contract Griswold shall give a bond of indemnity to protect Canal Com- missioners and State. Provides for the extension of the lease for the additional twenty years. The right is reserved to the Canal Commissioners to cancel this lease whenever they shall deem it to be the best interests of the State to do so. I^]\lllinT J Df.KI) of Ivll’AltlAN ^rilAd’. ( Abst ra('i, |)|). 4(5-47.) January (5, 1^)05, ("Jarial ('^oinini.ssioiun\s for tlio consideration of $500, oxecnted to said Harold T. (irisVold a deed to the riparian tract in Section 31, T. 34 N., 11. 9, in Will County, between tlie Canal and the Des Plaines; being tlie same premises mentioned in the previous leases and contracts, reserving, however, from said deed the ninety-foot strip of land on the south side of the canal and bordering thereon. The deed adds that it is ^hsubject, how- ever, to the terms, conditions and provisions of the flowage con- tract and lease made with said Harold T. Griswold and bearing- date September second (2nd), A. D., 1904, ivliicJi terms ^ conditions and provisions still remain in fidl force and shall he fidlyJcept and performed.’’ Exhibit K — ^‘Pole Line Contract.'’^ (Abstract, pp. 47-49.) September 2, 1904, the Canal Commissioners made another written contract with Griswold and his successors and assigns purporting for the consideration of $750, to authorize the said Griswmld to place and thereafter maintain a line of poles and wires along and upon the berm baidv, tow-})ath and land lielonging to the State of Illinois, part and parcel of the Illinois & Michigan Canal lands, for a distance of some twenty-five miles or more, viz., from the west line of Section 25, T. 34 N., R. 8, Grundy County to Robey street, Joliet, Will County. The Making of the Contracts. In the spring of 1904 Mr. Charles A. Munroe began negotiations with the Canal Commissioners to obtain a series of contracts, con- cessions, privileges, leases and deeds. The evidence shows that these negotiations began in the spring of 1904 and continued, sub- stantially without interruption, until the several contracts, leases and deeds were obtained. 14 As to tlie ordei* of these events, Coniinissioner Sackett testi- fied : “It was ill Feliriiary or March, 1904, that Mr. Munroe sap- jieared witli a i)ro])osition to aciiuire a lease or a right from tlie Commissioners of their jiroperty next the Des Plaines. It was merely a discussion whether we felt that proper con- sideration of canal operation would permit the consideration of the matter at all. Mr. Munroe was present at the next meeting. The matter was under discussion at numerous meet- ings covering several months. * * * ^ proposition to lease lands and a right of fiowage along the tow-path; at- taching the dam to the tow-])ath had been discussed. He wanted to flow from the month of the river back to Channahon. * * * It was proposed to flow npon and up against the tow-])ath. * * * The matters considered by the Canal Commissioners were (1) the right to flow water along the canal bank and over the so-called 16 acre tract, and (2) to at- tach the dam to the tov/-path hank. The bank is all there is between the river and the canal there. It is an artificial bank there. ^ * There was discussion whether the Canal Commissioners had any right in the river to give authority to put in a dam. * * * The Commissioners expressed the opinion to Mr. Munroe that they did not have any control of the Des Plaines Kiver at that point or any point, except through Joliet where it had been part of the canal. It was discussed with Mr. Munroe, this doubt of our having any right to give or having any control over the river. Mr. Walker’s position to us was that if we didn’t have any we were not doing any one any harm by relinquishing anything that we did not have. Mr. "Walker’s contention was that we had nothing to give and if Mr. Munroe wanted to pay for something when we had nothing to give thei'e was no harm done. (Abst., pp. 217, 232-3.) “ * * * The fiowage contract had been under discus- sion and practically agreed upon up to the time of the intro- duction of this lease. The lease was second or practically at the same meeting, but it came in after the fiowage contract had been debated, considered and practically decided on. It came as a result of discussion relative to the rights recited in the river — either the President of the board or attorney for the board saying to Mr. Munroe that we did not consider we had any right or jurisdiction to give in the river. 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 hann for us to allow them to be set forth, and perhaps might do them some good. (Abst., p]). 238-9.) “The pole lease or contract I thiuk was executed at the same time. I do not think it came up for discussion until the day of the ihial meeting’ wlien all the instruments were exe- (mted. (Ahst., p. 240.) “ * * * Jt was 411 the nature of a continuous transac- tion. The lease covers exactl}^ the permission covered in the llowage contract, except it eliminates all reference to the con- struction of the dam and work in the river. The pole line lease did not'Come up for discussion prior to the day when the instrimients were all executed. (Abst., p. 240.) “That clause in the lease giving* an option of renewal to Griswold and assigns was suggested by Mr. Walker. Most of these canal leases provide for a cancellation upon notice ; that feature was discussed, that if in a work of this sort if there was any cancellation provided upon 30 or 60 days’ notice it would hamper this proposition. (Abst., p. 241.) “The negotiations for the flowage contract were begun be- fore June 11, 1904, the date of the recommendations by the Commissioners to the Governor for sale. (Abst., p. 242.) “ * * * tPg time we recommended the sale to the Gov- ernor the question of a sale as well as the question of a flowage contract and a lease were being talked over and considered. Mr. Munroe suggested the desirability of a sale of this tract in preference to a lease if the same could be made.” (Abst., p. 242.) Originally, Munroe set out to purchase this riparian tract in the name of one Griswold, a young man about twenty-five years of age^ who testified that he had no interest in the subject; that he never saw the property, or met any of the Canal Commissioners, or had any intention of erecting any dam. (Abst., p. 851.) The statute in force then and for many years before, and after, in respect to the sale of canal lands, contained the following: “But before making any such sale they shall obtain the ap- proval of the Governor thereto and to the time, place and manner of making the sale : Provided^ that before any such sale shall be made thirty days’ previous notice thereof shall be given in some newspaper published in the county where such land is situated. And said land shall be sold at public auction to the highest and best bidder. ’ ’ Act of April 21, 1899, Sec. 8, Clause Eighth ; Stead’s Canal Laws, p. 175. Mr. Munroe, by depositing with them $350 as guaranty hid in- duced the Canal Commissioners to take the necessary steps under 1 () til is statute, secuire tlie Governor’s approval and advertise this ri- liarian tract for sale. Wlien tlie time for sale arrived (Aug. 2, 1904) none of the Com- missioners was there, and it was announced that the sale ivas post- poned. On September 2, 1904, the Commissioners by resolution voted ‘Ghat the pro])erty he recalled from sale for the reason that it appears that the proxierty can be more advantageously leased at a greater revenue than can at present be realized from the sale. It was therefore moved and nnanimously carried that lease lie entered into with Harold F. Griswold of Evanston, 11!., of the above described projierty for a period of twenty years, and for fioicage and pole rights, at a total rental for the sum of $8,700.00 cash in hand, previous deposit or $350.00 as a guarantee hid on said property to be returned to said Gris- wold.” (Abst., pp. 254-5.) (In the Ivecord of Proceedings of the Canal Commissioners the lease, the flowage contract and the power pole line contract here follow.) October 81, 1904, at the next meeting of the Commissioners, occurred the following, according to the minutes : ‘‘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 con- sent and approval of the Governor, for sale, the fol- lowing described land” (the riparian tract, describing the same) “excepting and reserving the ninety-foot strip of the Illinois and Michigan Canal subject to the right of floivage and lease of Harold F. Griswold.” (Abst., p. 256.) The next day, November 1, 1904, the Commissioners sent to the Governor the written recommendation of sale, subject to the right of, flowage and lease; that the Governor approved the same in the ordinary form, November 2, 1904; that the same was advertised for sale subject to the right of floivage and lease, November 3rd and November 17th, 1904; that the supposed sale occurred December 6, 1904, by the act of a clerk in the absence of all the Commissioners, and that deed was made January 6, 1905. (Abst., p. 257.) Meanwhile, on January 5, 1905, at the regular meeting for that date, the minutes show the following: “Resolved, That the proposed lease of that portion of the Kankakee Feeder in Section 9 to Charles A. Munroe for 17 iwHMiiy years ai $75 pea- y(*ar apj)r()V('(] und Uk; Prc^slchail and S(M‘reiary insirueted to oxeeaiic^ siieli l(;a.s(‘.” (yVIso resolution approving- sale and dircH'tin^ (ixeention of deed.) (Abst., ])p. 2()()-7.) Deeeniber CJ, 1904, 10 a. in., none of tlie Commissioners was pres- ent to conduct any sale. Tlie Clerk of t'lie Board testified as fol- lows : Snyder: conducted the sale at the time named in the notice, December 6, 1904, 10 a. m. There was also pres- ent Mr. Munroe, a gentleman that I did not recognize, Mr. Ke- hoe (a canal employe, who died January, 1908), and the em- ployes of the office; none of the canal commissioners were present, nor was Mr. Walker, the attorney for the Board. I offered the property for sale. There was no one bid except Mr. Munroe. I struck it off and declared it sold. I was in- structed, I think, in the absence of the Commissioners or the attorney, by the superintendent , to conduct the sale, and did so, in pursnance of those instructions. ‘^My recollection is that it was the general understanding that Mr. Walker ivoidd come down and conduct the sale, but at the last moment he could not be present. I think Supt. Mc- Donald was compelled to be in Chicago on that day. My in- structions were received, from Mr. McDonald. I was instructed to conduct the sale.” (Abst., p. 256.) At the Canal Commissioners’ meetings of April 5 and 12 and Au- gust, 8, 1905, the minutes show that the following occurred : ^‘Leland Hotel, Springfield 111., April 5, 1905. ^‘Mr. Charles A. Munroe wms present and submitted propo- sition for additional lease of 'water-power on the Des Plaines River. After discussion the matter Was referred to Gen. Supt. McDonald and Attorney Walker for investigation and legal opinion.” (Abst., p. 262.) Majestic Hotel, Chicago, April 12, 1905. ^^Mr. Charles Munroe was present and offered a proposition for Harold P. Griswold for an additional lease in connection with the Kankakee Feeder. After discussion the whole subject was again referred to Supt. McDonald and Atty. 5¥alker for investigation and report.” (Abst., p. 263.) ‘^Lockport, 111., August 8, 1905. ‘‘The following resolution was offered by Comr. Sackett, seconded by Comr. Newton, and adopted: “Resolved, That the lease to Harold F. Griswold of this 18 (late to certain ri^lits relating to the water in the Kankakee Kiver and to tlie Kankakee Feeder, the reconstruction of the dam across tlie Kankakee river in Sec. 9, K. 33, * * * the repair of tlie hank of said Feeder and the jilacing of gates thereon at a consideration of $150 per annum, for the term of 20 years, be approved and the President and Secretary authorizd to execute the same.” (Abst., p. 203.) This series of contracts was the subject of substantially con- tinuous negotiations until the wbole were acquired, and they em- brace grants of all the rights and franchises heretofore enumer- ated. The State maintains that it is the policy of the State: 1. To maintain the Canal in its integrity and allow no part of it to be alienated; 2. To allow none of the Canal Lands, the bounty of the Nation, to be sold, except after published advertisement, at public auc- tion, to the highest bidder; 3. To secure free, open and equal bidding at such sale ; 4. To have that sale conducted by the sworn officer of the State appointed for the purpose; 5. To allow no water-power, the property of the Canal, to be permanently alienated ; or leased for more than 20 years ; (). To allow no such water-power to be leased even for 20 years, except after public advertisement, at public auction, to the highest bidder ; 7. To secure free, open and equal bidding at such letting of water-power; 8. To allow none of the canal lands to be leased for more than 20 years. 9. To allow no private grants in perpetuity of rights in the canal property. 10. To allow no private interests to encroach upon or imperil the canal. 10 P^liKOHS T\ElilEI) On. nssii>’ii]iioiii of errors, eondensed, maintains iliai ilio (V)nrt erred : 1. In admitting improper evidence in belialf of defendant against objection of complainant. 2. In rejecting proper evidence offered by complainant. 3. In dissolving the temporary injunction. 4. In not making tlie temporary injunction permanent. 5. In not bolding eacli, every and all of tlie contracts and leases made between the Canal Commissioners of tlie Illinois and Michi- gan Canal and Harold T. Griswold, and wliicli contracts and leases were assigned by said Griswold to the defendant, respect- ively, void. 6. In dismissing the complainanCs information or bill of com- plaint. 7. In not finding and decreeing the equities in said cause to be with the complainant. 8. In not finding and decreeing that by the instrument Exhibit A (for convenience called ^Ghe Perpetual Flowage Contract”) the Canal Commissioners assumed to grant a perpetual right of flowage in and over the ninety-foot strip of land adjacent to the Illinois and Michigan Canal. 9. In not finding and decreeing that by Exhibit A the Canal Commissioners assumed to grant a ])erpetual right of flowage in and over the certain other real estate described in said instrument. 10. In not finding and decreeing that the contract Exhibit A was void. 11. In not finding and decreeing that by the contract Exhibit A, the Canal Commissioners without riglit, without power, and without warrant of law assumed to authorize the party of the sec- ond part thereto and his assigns to do the following acts, among others, and each of them, respectively, to wit: 11. (1) To build and maintain in perpetuity a water- ])ower dam and other works in, upon and across the I)es Plaines Elver at and near its mouth and upon the real estate described in said instrument. 20 ]1. (2) To attach and maintain in ])erpetuity tlie water- power dam to tlie tow-patli and canal embankment of tlie Illi- nois and Micliigan Canal, the property of tlie State of Illinois, at the site of such jirojiosed dam, and divert said canal em- bankment from its necessary and lawful use in retaining the canal waters in place. 11. (3) To flood in perpetuity the canal embankment at the site of such dam and above the same and used the canal embankment in perpetuity as a retaining wall for the water- power pool. 11. (4) To flood in perpetuity the reserve ninety-foot strip 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. 11. (5) To flood in perpetuity the canal riparian lands between the Des Plaines Kiver and the canal. 11. (6) To raise the tow-path 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 aqueduct in constructing such works and perpetually maintain the same. 11. (7) To enter upon and fill in portions of the Illinois and Michigan Canal in perpetuity. 11. (8) To divert and turn back from the Des Plaines Elver the tributary stream known as the ‘^Kankakee Cut-off ’’ and deplete the river thereby and make the Kankakee Cut-off run backward into the Kankakee Eiver as an outlet or spill- way for the waters of the water-power pool to be created by said proposed dam. 11. (9) To convert the feeder of the Illinois and Michi- gan Canal, commonly called the Kankakee Feeder, into a feeder of the water-power pool, and in so doing to excavate and remove and destroy large portions of the canal feeder ac- quired and constructed by the State as part of the canal. And the Court erred in not finding and decreeing as to each of said- proposed acts and works respectively, that the same was inherently dangerous to the Illinois and Michigan Canal; and beyond the power of the Canal Commissioners to author- ize, grant or permit; and in not finding and decreeing that said proposed acts and works collectively were inherently danger- ous to the said canal. 12. In not finding and decreeing that said flowage contract. Exhibit A, was ineffectual and without right in so far as it as- sumed to grant a right to do the acts and maintain the works therein mentioned in perpetuity. 13. In not finding and decreeing that by the contract Exhibit B of said Information (for convenience called ‘‘the Forty-Year 21 lioa'so”) i'lio (^aiial Oominlssioiu^rs assuiiKMl io l(ii and Uiascj ilie ('anal projanly of llu' Slal(‘, Io wit: tli(‘ nln(‘l y-l'ooi siiap a(lja('(inl tlior('to, (l('S('ril)(Ml in said l^^xliibit !>, for llui i(n-ni of ivvcnily y(N‘irs, with ilie tirsl right of ronowal for twenty y(^ai’S nioj-e. 14. In not finding and decreeing that hy said instnirnent, Kx- hihit I), tlio C^anal (V)nnnissioners assinned to let and lease the ('anal proi)erty of the State, to wit: That part of th(‘ north half of Section o1, lying south of the ninety-foot reserve strip along the tow-path side of said canal, described in said Exhibit J>, for the term of twenty years, witli the first rigid of renoAval for twenty years more. 15. In not finding and decreeing that said forty-year lease, Ex- hibit B, was ineffectual and void in so farms it purported to grant, let and confer to and upon the defendant any rights in excess of the original term of twenty years. 16. In not finding and decreeing that said forty-year lease. Exhibit B, conferred no right to overflow or flood or maintain a standing pool of water upon any of the lands of the State de- scribed in said instrument. 17. In not finding and decreeing that in and by the instrument set up as Exhibit C to the Information (and for convenience called ‘‘the Kankakee Feeder Lease and Kiver Contract”), the Canal Commissioners without right and without warrant or au- thority of law assumed 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, and to appropriate the waters of the Kankakee River and empty them into the defendant’s water-power pool above its dam in the Des Plaines River instead of letting them flow naturally into the Illi- nois river below. 18. In not finding and decreeing that in and by the instrument set up as Exhibit K to said Information (for convenience called “the Pole Line Contract”), the Canal Commissioners without war- rant 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 22 power twoiity-fwo miles long ii])oii the tow-path of tlie Illinois and Mic'liigan Canal. H). In not finding and decreeing tliat tlie Canal Commissioners had without warrant of law and without right wrongfully assumed to sell by the act of an employe, and by the instrument set up as Mxhihit d to said Information or bill, wrongfully assumed to con- vey the real estate canal lands therein described. 20. In not finding and decreeing that the title to the bed of the Des Plaines Piver in Section 25, etc., where defendant 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 tJiis place and that the proposed dam will be a trespass and a ‘purpresture upon its property and sover- eign rights. 21. In not finding and decreeing that the Des Plaines River at the said 2 :>lace in question, in Grundy County, and from its connec- tion with the Drainage Canal of the Sanitary District of Chicago to its confluence with the Kankakee River, is a navigable stream, and that the erection of the proposed dam will prevent the use of the river and constitute a permanent nuisance. 22. Ill not finding and decreeing that the Illinois River, from the confluence of the Desplaines and Kankakee Rivers downwards, is a navigable stream — the use of which will be obstructed by the dam. 23. In not decreeing a perpetual injunction against the erection of the proposed dam. 21. In not recjuiring of the defendant the abatement of the con- struction already placed in the Des Plaines River by the defend- ant ; and in this, 25. That the decree and finding of the Court are against the evidence ; and, 26. That the decree and finding of the Court are against the law. IN THB fort 0t f Uinvk ORIGINAL RECORD RETURNED TO October Term, A. D. 1908, AND CAUSE CONTINUED TO February Term, A. D. 1909. PEOPLE OF THE STATE OF ILLINOIS, 1 CHANCERY. ex rel. CHARLES S. DENEEN, Gover- ^ nori and WILLIAM H. STEAD, 1 1 Appeal from Circuit Court, C76ii6T&1> Appellant f \ Grundy County. vs. Honorable Julian W. Mack, ECONOMY LIGHT & POWER 1 (temporarily sitting as Judge of i said Court at the request of COMPANY, Appellee. j 1 Honorable Samuel C. Stouoh, 1 Judge of said Court), Judge, f Presiding. BRIEF OF POINTS AND AUTHORITIES HKMKF OF POINTS AND A FTI lOH IT! FS. Preliminary. THE GOVERNOR AND ATTORNEY GENERAL HAVE THE RIGHT^ POWER ANI7 , DUTY TO MAINTAIN THIS PROCEEDING. I. The Acts of the Legislature are complete authority for THIS PROCEEDING, VIZ : 1. The joint resolution of the Legislature, November 27, 1907. (Laws of Illinois, 1907-8, Adjourned Session, pp. 101-2.) 2. The Act of December 6, 1907, entitled ^L\n Act recogniz- ing the Des Plaines and Plinois Elvers as navigable streams, and to prevent obstructions being placed therein, and remove obstructions therein now existing.” (Laws of Illinois, 1907-8, Adjourned session, pp. 32-3.) II. The Common Law as to the Attorney General A office AUTHORIZES THIS PROCEEDING. Canal Coinrs. v. Village of E. Peofia, 179 111., 214, affirm- ing 75 111. Ap])., 450. III. The Constitutions and IjEgislation of this State pre- serve THIS Common Ijaw authority. Constitution of 1818, Art. II, Sec. 25. Constitution of 1870, Art. V, Sec. 1. ‘L\n Act in regard to Attorneys General and State’s At- torneys.” (Act of March 20, 1874), Eev. St., Ch. 14; see especially Sec. 4. Hunt, Attorneg General, v. Horse and Dummy Railroad, 20 111. App., 282. Affirmed on this point, 121 111., 038-042. Attorney General v. Woods, 108 Mass., 430. Attorney General v. Jamaica Pond Aqueduct Corporatvon, 133 Mass., 301. People V. Tibbetts, 19 N. 23. People V. Vanderbilt, 2() N. Y., 287. People V. Canal Appraisers, 33 N. Y., 461-467. People V. Gutcliess, 48 Barb., 656. The original prerogative powers of the Attorney General include the power to invoke the protection of tlie Court against tdtra vires contracts by commissioners. Attorney General v. Forbes {Cottenham, Lord Chancel- lor), 2 Mylne & Craig, 123, and Notes to American edi- tion. Freivein v. Leivis, 4 Mylne & Craig, 249. IV. The Canal Act provides that the Canal Commissioners SHALL NOT BE SUED. Therefore it was not necessary or practicable to make the Canal Commissioners parties. The Court erred on this. (Abst., p. 788.) Canal Act, Sec. 3: ^^An Act to revise the law in relation to the Illinois and Michigan Canal and for the improve- ment of the Illinois and Little Wabash Eivers.’’ (Eev. St., Ch. 19, Sec. 3.) DIVISION ONO. The Canae Commissioners^ Contracts Are Void. I. THE FLOWAGE CONTRACT GRANTING THE RIGHT TO FLOOD THE NINETY- FOOT STRIP^ TFIE TOW-PATH BANK AND THE RIPARIAN TRACT IN PER- PETUITY is a sale of real estate. 1. As such sale it violates the statute forbidding a sale of Canal real estate, except upon advertisement and to the highest bidder, and is void. Canal Act, Eev. St., Ch. 19, Sec. 8, Cl. 8, as amended by Act of April 21, 1899, Laws of 1899, p. 82, 4 Starr & Curtis, 90-1. 2. As such sale of real estate it is an attempted sale of the nine- ty-foot strip, and violates the istatiite reserving the ninety-foot strip from sale. See statute last cited. That such contract conferring the right of permanent flowage of land is a Sale and Grant of an Estate in Land, see the following authorities : Woodivard v. Seeley, 11 111., 157. Wilmington Water Poiver Company v. Evans, 166 111., 548. Beyo V. Ferris, 22 111. App., 154. Mnmford v. Whitney, 15 Wend., 381-393. Cook V. Stearns, 11 Mass., 533, 536-8. Nellis V. Munson, 108 N. Y., 453. Fitch V. Constantine Hydraidic Company, 44 Mich., 76; S. C. and 6 N. W. Kep., 91. Even a license to erect a permanent dam on another’s land, or to overflow another’s land, must be by deed, for it is the Sale of an Estate in Land. Broivn v. Woodivorth, 5 Barb., 550. H oughtaling v. Houghtaling, 5 Barb., 379. Davis V. Toivnsend, 10 Barb., 338; id., 496. It, it* valid, ('oiivoys an estate, wliieli precludes tlie grantor from any use inconsistent with tlie beneficial exercise of the flow- age right. Woodtvard v. Seeley^ 11 111., 164. Pliillips V. Watnppa lieservoiy Company, 108 Mass., 404; 68 Northwestern, 848. Tlie interest purported to be conveyed by the fiowage contract is perpetual. No words of inheritance are necessary to the creation of a per- petual right of fiowage. Cole V. Lake Co., 54 N. H., 242. Clark V. Strong, 105 N. Y. App. Div., 179. Su'cetland v. Grant’s Press Power Company, 46 Ore., 85. Phillips V. Watuppa Reservoir Co., 184 Mass., 404; 68 N. E. Eep., 848. Tuttle V. Harry, 56 Conn., 194; 14 Atl., 209. Chappell V. Hew York, etc., R. Co., 62 Conn., 195; 24 Atl., 997. Hall V. Turner, 110 N. Car., 292; 14 S. E., 791. The Elooded Aeea. The area to be flooded in perpetuity thereunder is: (a) The ninety-foot strip through three canal sections (25, 31 and 29) expressly named; (b) The ninety-foot strip up-stream from these (so far as it bordered the river), by back water caused by the darn ^‘with crest at XX — 73.2, Chicago datum, but in no event shall back water caused thereby extend beyond the northerly limits of Lake Joliet,” fifteen miles up stream ; (c) The Eiparian Tract in Section 31 between the canal and the river. (d) The Tow-])ath bank. The area of the Eiparian Tract (which is nowhere specifically testified to, but is vaguely referred to as the ^A6 2-3 Acre Tract”) is proven by *‘Hillebrand Exhibit 3.” The tract is correctly de- lineatod tliercou and as delineated occupies tlie irr’egular curved triangular space about a mile long and one-eightli of a mile wide. Triangulation of tlie delineated territory gives the following areas : Riparian Tract to Meander line 3:2.59 acres North half of river-hed 2().33 acres Feeder right-of-way 3.51 acres Feeder ninety-foot strip 17.71 acres 80.14 acres The Flooded Area of the Ninety-Foot Strip. Length — Of the ninety-foot strip, the whole was to he flooded throughout (a) the three sections expressly named, and (h) the up-stream portion therefrom (so far as it bordered the river) to the north end of Lake Joliet. Width . — The flooding was to occupy the total width of the ninety-foot istrip, less ‘Mhe present width” of the tow-path (proven to be 12 feet.) The flooded area was fo he 78 feet wide. In Section 31, ‘Mlillebrand Exhibit 3” shows the flooded length of the ninety-foot strip to be 6,670 feet, which multiplied by 78 feet gives 11.94 acres. The flooded area in the other two sections, expressly named, and in (h) the up-stream portions of the ninety- foot strip, where it borders the river elsewhere to Lake Joliet, will considerably increase this amount. The easement of perpetual flowage of over 100 acres of land was granted. Courts take judicial notice of the principles of mathematics and the science of mensuration and will measure for themselves by judicial notice the areas of which the dimensions are proved. Scanlan v. San Francisco, etc., By. Co., (Cal.), 55 Pac. Rep., 694. (And see cases cited on ‘Mudidnl No* ice,” herein.) THE FLOWAGE CONTRACT IS BEYOND THE POWERS OF THE CANAL COM- MISSIONERS^ AND IS VOID. The Canal Commissioners are statutory officers. They derive their powers from the statute. They have only enumerated spe- cial powers. These are set forth in ^^An Act to revise the law in relation to the Illinois and Michigan Canal and for the improve-' ment of the Illinois and Little Wabash Eivers/’ as amended hy Act of April 21, 1899, Laws of 1899, p. 82; 4 Starr & Curtis, Ch. 19, pp. 89-91. Powers to make this contract will not be found there. The Commissioners have no powers by implication. Statutes delegating powers to public officers are strictly con- strued and all parties interested must look to the statute for the grant of power. Acts of the Commissioners not Avithin the terms of the statutes are void. (1837) 111. S Mich. Canal v. Calhoun, 1 Scam., 521. (1907) Dieclrich v. Rose, 228 111., 610, affirming S. C., 133 111. App., 384. State of Illinois v. Delafield, 8 Paige’S' Chy., 528. And their grants, in derogation of public rights, are , strictly construed, and not extended by implication. (See authorities cited for this under Division Two, Point VI.) The flowage contract (clause 9) in express terms authorizes the invasion of the canal. This is illegal and void. It reads : (9) Said party of the second part is hereby authorized Jo enter upon the lands and premises of the State of Illinois, part and parcel of the Illinois and Michigan Canal, and to enter upon the canal itself in the manner and to the extent it shall be necessar^^ — (1) To raise and maintain the tow path as above provided ; (2) To attach and build said dam or other works on the said tow-path bank, as herein provided ; (3) To repair, maintain or renew the same, as shall become necessary to the preseiwation thereof. 7 Tills subordinates the ])iibli(^ property to tlie jirivate purposes and is illegal and beyond the power of the (/anal Oornniissioners. Snyder v. Ciiy of Mt. Pidashi, 176 111., 897. City of Morrison v. Tlinkson, 87 TIL, 587. Attorney General v. Forbes^ 2 Mylne & Craig, 128. Fretven v. Lewis, 4 Mylne & Craig, 249. III. THE CANAL LEASES AKE ILLEGAL AND VOID. These leases are : Exhibit B” (The lease of Eiparian Tract, Tow-path Bank and Ninety-foot Strip), Exhibit C” (ICankakee Feeder Lease, the River Con- tract), ^‘Exhibit IC” (25-inile Pole Line, Lease of Tow-path and Canal Bank) — • 1. They contain kenewal clauses for a second teem of twenty^ YEARS. Canal leases are by statute limited to twenty years. Canal Act, 4 Starr S: Curtis, Ch. 19, Sec. 8, cl. 5. The attempted grant of the lease for a longer time renders them void. 7. (& M. Canal v. Calhoun, 1 Scam., 521. Diederich v. Bose, 228 111., 610. Affirmed, id. 188, 111. App., 891. State of Illinois v. Dela field, 8 Paige’s Chy., 528. This renewal clause amounts in itself to making the lease for the extended term. (So held in the case of the Mhiter Power Lease.) (Per Dixon, C. J., Noonan v. Orton, 27 AVest., 800; S. C., 21 AVest., 265. 2. The lease for purposes of flooding the ninety-foot strip •AND TOW-PATH BANK FOR SEVERAL MILES ENDANGERS THE CANAL, AND IS AN INVASION OF PART OF THE CANAL. The ninety-foot strip, the tow-])nth and the berm bank are inte'- gral parts of the canal, and cannot be leased or put to any use or subjected to any burden other than for canal purposes. (See authorities next cited). Snell leasing of several miles of the ninety-foot strip and tow- path hank for jirivate ]uu-})oses— which is inherently dangerous to the canal — is beyond the power of the Canal Commissioners. ^^The Board of Public Works possess no power to grant rights, easements or privileges for private advantage unless expressly authorized by law.” Ohio ex rel. Attorney General v. Cin. Central R. Co., 37 Ohio St., 157. ^‘The berm bank of the canal is part thereof, and equally pro- tected by law from all occupancy or intrusion as any other part.” Ibid. The foot-path or tow-path and strip of land occupied by it along a canal is part of the canal. Alexander v. Tolleston Club, 110 111., 65. Morgan v. Bass, 14 Fed., 454. Hatch V. C. S I. R. Co., 18 Ohio St., 92. Edwards v. Schlund, 21 Ohio St., 193. Penn. Canal Co. v. Harris, 101 Pa., 80. Schuylkill Navigation Co. v. Berks Co., Comrs., 11 Pa. (1 Jones), 202. Western Pa. R. Co. v. Childs, 3 Pittsburg E., 168. Midlen v. Lake Drummond Canal & W ater Co., 63 L. E. A., 883. The location and topography of the canal, with bluffs on one side and swamp on the other at this point, make these constructions inherently dangerous, and the work as planned increases that dan- ger. See ^‘History of Canal” in Canal Commissioners’ Ee- port of 1900,” pp. 124, 148, 156, 169, 170. (Abst., pp. 1876, 1888, 1891-2, 1895.) And see testimony of Lyman E. Cooley on this subject, Al)st., pp. 848-9. Testimony of Cramer, Abst., pp. 354-371. Testimony of Benezette Williams, Abst., pp. 336-354. Tesliinoiiy of Uiidolpli, i\l)sl., \)\). Testimony of J>remer, i\l)st., pp. 779-794. 9. Tlie Canal Commissioners liold the (-anal with all its in- cidents in trust for public uses and can grant no easement therein for the benefit of private parties and to the exclusion of the public. Snyder v. The City of Mt. Pnlashi, 176 111., 397. Field V. Barling, 149 111., 556 Hihhard v. City of Chicago, 173 111., 91. Briggs v. Phillips, 103 N. Y., 77. Smith V. The State, 23 N. J. L., 712. Attorney General v. Heishon, 18 Y. J. Eq., 410. State V. Woodivard, 24 Vt., 92. The power conferred on these officers is limited to public pur- poses, and must be expressed, and cannot be exceeded. Any fair, reasonable doubt concerning the existence of the power of public officers to devote public property to questionable uses is resolved by the Courts against the corporation, and the power is denied. 1 Dillon on Mimic. Chirp., Secs. 55, 251. Raivlms v. Cerro Gordo, 32 111. App., 215. Trustees v. Jacksonville, 61 111., 199. Emmons v. Leivistoivn, 132 III, 380. Chicago v. McCoy, 136 111., 344. Cairo v. Bross., 101 111., 475. Huesing v. Bock Island, 128 111., 465, and cases in these authorities cited. (These are to a considerable extent highway cases, but the rule is plainly the same for canal commissioners as for other highivay commissioners.) Licenses to erect structures in or upon highways are authorized only for the promotion of the public uses for which the highways were established, and the accomplishment of public utilities. Street railways, gas pipes and electric light wires are permitted in the streets upon this ground. They serve municipal purposes and pub- lic uses. K) Tlie private wires and pole lines and dams of the private power company promote no such purpose. They are devoted to private purposes, which are foreign to and adverse to the public uses for whicli the canal was built. The degree of such encroachment is immaterial. See cases last cited. 4. The flowage contract and leases are in terms assignable to irresponsible parties without the Canal Commissioners’ consent, and this will release the defendant and leave the State no remedy for the protection of the Canal. This was inexcusable negligence by the Commissioners. Consolidated Coal Co. v. Peers, 166 111., 361-3-6-7-8. Taylor on ‘‘Landlord and Tenant,” Sec. 452. Wood on “Landlord and Tenant,” Secs. 307, 339-340, 349. 5. The Kankakee Feeder Lease, “Exhibit C,” is void. The other lease, “Exhibit B,” and the flowage contract also pur- port to dispose of the Feeder in part, and are consequently void. a. By the Kankakee Feeder Lease, “Exhibit C,” the Canal Commissioners — “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 propertv for State purposes.” (Abst. 'p. 39.) This power to cancel was exercised by the Legislature itself by the Act of December 6, 1907 (L. 1907-8, pp. 32-33). The Legislature can exercise this power. Laramie County v. Albany Co., 92 IT. S., 307-312, and other cases there cited. - Bussell V. Beed, 27 Pa. St., 170. h. This Feeder Lease, “Exhibit C,” contains the twenty-year renewal clause, and is therefore void. See clauses from the statute heretofore cited under Part III, Sec. 1. 11 The Kiuikakoo Foedei- Loas(‘, ‘‘Fxliibit (V’ wat(a*-})()\v(*r lease and violates the statute thereon, requiring public letting to the highest bidder. 4 Starr & Curtis, Annotated Statutes, Ch. 19, Sec. 8, Cls. 6 and 7, pp. 90-91. <7. No })ower is conferred on the Commissioners to let out the canal feeders in the absence of express authority. In such officers no implied authority exists. See authorities cited under Part II above. 1 Scam., 521; 228 Ilk, fild; 8 Paige’s Chy., 528. e. The title to the Feeder lands does not revert or leave the State by non-user. The fact that the feeder was out of use and out of repair does not confer authority to sell it, lease it or give it away. v Rexford v. Knight, 11 N. Y., 308. Frank v. Evansville Co., Ill Ind., 132. Mason v. Lake Erie & S. IF. Ry. Co., 1 Fed. Pep., 712. Craig v. Allegheny, 53 Pa. St., 477. White V. State, 14 Ohio, 408. f. No length of non-user will extinguish the rights of the State in the Canal property. Curran v. Louisville, 83 Ky., G28. Donahue v. State of N. Y., 112 N. Y., 142. S. c. 2 L. R. A., 576. State V. Doig, 2 Rich. (S. Car.), 179. Canal Commissioners’ Report, 1900, ]). 220, reciting — “There are, however, over 125 acres of good land used for this feeder that now belong to the State of Illinois.” THE FLOWAGE CONTRACT (EXHIBIT a) AND THE LEASE OF THE RIPARIAN TRACT^ TOW-PATH BANK AND NINETY-FOOT STRIP (EXHIBIT b) ARE SEPARATE CONTRACTS. GRISWOLD AND ASSIGNS” IN THE ONE IS NOT THE SAME PARTY” AS GRISWOLD AND ASSIGNS” IN THE OTHER. THEY MAY PASS TO SEPARATE ASSIGNEES, AND SHOULD BE CONSTRUED AS DISTINCT AND SEPARATE CONTRACTS. BUT IF CONSTRUED TOGETHER AS ONE CONTRACT, THE RESULTING CON- TRACT IS A WATER-POWER LEASE MADE IN VIOLATION OF THE STAT- UTE THEREON, AND THEREFORE VOID. 1. Exhibits A, B and K (Pole Line Lease) were all made Sep- tember 2, 1904. It has been contended that they should be construed as one con- tract. We deny this contention. The lease (Exhibit B) to Griswold and assigns is expressly made — • ‘‘subject to the contract dated the 2nd day of September, A. D. 1904, to said Harold F. Griswold, affecting said prem- ises.” Further, the lease (Exhibit B) provides-^ “It is further covenanted and agreed between the parties aforesaid that said party of the second part is hereby charged ivith knoivledge of all of the provisions contained in said con- tract with Harold F. Griswold, in so far as they affect the premises hereby leased.” Each contract is made with Grisv/old and assigns. Each contract may be separately assigned — one to A B and the other to X Y, without any consent or permission. Griswold and his assigns, A B, are not the same party as Griswold and his as- signs X Y. 2. If construed together they constitute a water-power lease. They purport to lease property for the purpose of maintaining •> • > a ^\^ater-po'wer dam and ovxvrflowitig tho canal property, and trans- mitting elc(di'i(‘al energy by a p()l(‘ line on lli(‘ tow-patli, for tw(nity- bve miles. These are all the distinct features of a water-power- lease. The canal records of April 5, 1905, refer to another proposition : ^‘h\)r additional lease of water-])ower on the l)es Plaines liiver.” (Abst., p. 2()2.) The (Anal Act re(]iiires leases of water-power to l)e let to the highest bidder after thirty days’ public notice. This transaction violates this statute. E. S. Ch. 19, Sec. 8, Cl. 6, as amended by Act of April 21, 1899. V. THE SALE OF THE CANAL LANDS WAS AIADE BY AN EMPLOYE OF THE CANAL COMMISSIONERS, IN THE ABSENCE OF ALL THE COMMISSIONERS AND WITHOUT ANY AUTHORITY CONFERRED UPON HIM, AND WAS VOID. The property had been advertised for sale. It had been arranged that their attorney should be present and conduct the sale, and no commissioner was present. Their attorney telephoned the super- intendent to conduct the sale, and he in turn instructed an employe, John M. Snyder, tb conduct the sale. At that time the Canal (Ammissioners had a living secretary. Later the secretary died and Mr. Snyder was then appointed acting secretary. But at the time of this sale he held no position exce])t that of employe. The sale of public property by public officers is a special trust, requiring the official discretion and judgment of the public trustees. They cannot delegate this judgment and discretion to an attor- ney. A fortiori the attorney can not delegate it to the sujieriiitendent. With yet stronger reason the superintendent cannot delegate it to an employe. (1842) Mason v. Wait, 4 Scam., 127 (Guardian’s sale un- der special legislative authority, made by Guardian’s at- torney in fact, invalid.) (1874) Sehastian v. Johnson, 72 III., 282 (Administratrix’ 14 sale, made by an agent or auctioneer whom she engaged, for tlie purpose, but in her absence — sale held void and relief denied to purchaser.) (181b) lleyer v. Deaves, 2 Johnson’s Ch., 154 (Master’s sale by deputy master, invalid.) (1850) Foivell v. Tuttle^ 3 N. Y., 396 (Two Loan Com- missioners authorized to sell; sale by one invalid.) (1857) Moss V. Peary, 2 Pat. & Heath (Va.), 483 (Sale by one of two, the other being absent, invalid.) (1876) Noland v. Noland’s Admr., 75 Ky., 426 (Court Commissioner; sale by auctioneer in absence of, in- valid.) (1861) Cheatham v. Phillips, 23 Ark., 80 (Swamp land commissioners; sale by sub-commis'sioner invalid.) (1894) Bickerton v. Grimes, 8 Wash., 451 (County Com- missioners; sale auctioneer’s services unauthorized.) (1864) White v. Lester, 40 N. Y. (1 Keyes), 316 (Loan . commissioners; sale both being present; book entries by one, valid.) (1875) Jackson Co. v. Brush, 77 111., 59, 65 (County Commissioners intrusted with bonds in escrow for de- livery on fulfilment of conditions. Power to decide on conditions and deliver bonds cannot be delegated by them.) VI. THE DEED OF THE RIPAEIAl^ TRACT IS VOID. 1. The Deed professedly simply 'carries into effect the void sale, and is therefore also void. 2. The Deed expressly renews the void covenants of the Canal Commissioners in the void flowage contract, and is therefore void. The language of the Deed thereon is this : ^‘Subject, however, to the terms, conditions and provisions of the flowage contract and lease made to said Harold F. Griswold, and bearing date of September 2, 1904, which terms, conditions and provisions still remain in full force, and shall be fidly kept and performed.” This provision in the Deed, signed by the Commissioners, is a new covenant by them, renewing the void undertaking of the flow- age contract. A, and the void lease, B. 3. It is subject to the reserve of the flowage right, which (be- 15 cause the flowage coiilract is void) never left tlie (janal (jornrnis- sioners. Tlie Deed bein^ subject to the reserved right which never left the Canal Commissioners, therefore fails to take effect. VIT. THE ENTIRE SERIES OF CONTRACTS IS AGAINST PUBLIC POLICY AND VOID. PUBLIC POLICY OF THE STATE AS TO THE CANAL AND CANAL LANDS. It is the policy of the State^ — (1) To maintain the canal in its integrity and allow no part of it to be alienated; (2) To allow none of the canal lands, the bounty of the nation, to be sold except after public advertisement, at public auction, to the highest bidder; (3) To secure free, open and equal bidding at such sale ; (4) To have that sale conducted by the sworn officer of the State appointed for the purpose; (5) To allow no water-power, the ])ro})erty of the canal, to be permanently alienated or leased for more than 20 years ; (6.) To allow no such water-power to be leased even for 20 years except after public advertisement at public auction to the highest bidder; (7) To secure free, open and equal bidding at such letting of water-power. (8) To allow none of the canal lands to be leased for more than 20 years ; (9) To allow no private grants in perpetuity of rights in the canal property. (10) To allow no private interests to encroach upon and im- peril the canal. Each of these principles of public policy was violated by the contracts held by appellee. 1. Contracts violating the ])olicy of the State are void. Greenhood on Public Policy, Pule 2, pp. 1, 2, 5, 8, 113. k; In construing contracts, tlie first purpose of tlie courts is to look to the welfare of the public. — Ibid. When the tendency of a contract is to injure the public no right can be founded thereon.^ — Ibid. Craivford v. Wick, 18 Ohio St., 190, 204., llolloday v. Patterson^ 5 Ore., 177, 180. Picliardson v. Crandall, 48 N. Y., 343. ' Any contract made for the purpose of giving effect to an agree- ment which is hostile to the welfare of the public, or having its origin therein, or growing immediately therefrom, is void. (Jreenhood on Ihiblic Policy, p. 8. A contract, which in its execution will contravene the policy and spirit of a statute is equally void as if made against its positive provisions. (Uinfher v. Deirine, 11 Ta., 133. Statutes delegating iiowers to jmblic officers must be strictly construed, and all parties interested must look to the statute for the grant of power. Diederlch v. Rose, 228 Til., 610. If authority for the contract of a public office cannot be found delegated by the statute, then the contract must fall. Dement v. Rokker, 126 111., 174. This applies with peculiar force to grants of corporate priv- ileges or franchises in public property, Jones V. Kline, 41 N. H., 238. State V. Garland, 7 Ired., 49. Ohio ex rel. v. Board of Public Works, 36 Ohio St., 409. Ohio ex rel. v. Cincinnati Central R. Co., 37 Ohio St., 157. 2. The Courts- will restrain the performance of contracts hos- tile to the policy of the State. State of Illinois v. Delafield, 8 Paige’s Chy., N. Y., 527. (A contract by State agents for the canal bonds of this very canal.) k - 17 Inter Ocean Fnhlisliing Co. v. Associated Press, 184 III., 438. Cooh County Briclc Co. v. Labahn Erich Co., 92 111. App., 7)26. Cone V. Russell, 48 N. J. Eq., 208; 21 At]., 847. McGuire v. Ashby, 1 Eand. (Va.) 76. Bashett v. Moss, 115 N. Car., 448. Greenwood on Public Policy, p. 131. 3. Where the leading part of a contract or a series of contracts for a common purpose is contrary to public policy, no part of such contracts will be upheld. Penn v. Bornman, 102 PL, 523, 9. Broom’s Legal Maxims, 723. Norton v. Simmes, Hobart, 12 c. So of a lease for the purpose of maintaining an illegal dam. Dyer v. Curtis, 72 Me., 181. 4. The Court wall not prune and pare off from this series of vicious contracts their leading vicious features,, and save the bal- ance, and then giv^ effect to the vicious purpose by indirection. N orrington v. Wright, 114 IT. S., 188. Clark V. Baker, 5 Mete., 452. Coos Bay Wagon Co. v. Crocker, 4 Fed., 577. Tobey v. Robinson, 99 111., 222. Estate of Ramsey v. Whitbeck, 183 111., 550. Douthart v. Congdon, 197 111., 349. There are some salient features of this agreement, which stamp it as being against public policy. * * * makes no difference whether the parties were actually guilty of bribery and corruption or not. ’ ’ By the Court in — Critchfielcl v. Bermudez Asphalt Paving Co., 174 111., 466. Marshall v. B. S 0. R. Co., 16 Hjow., 314. Doane v. Chicago City Ry. Co., 160 111., 22. Brieske v. N. Chicago St. Ry. Co., 82 111. App., 256. 5. A contract, bond, or deed, wdiich provides, among other things, to do something forbidden by statute, is void in toto. Norton v. Simmes, Hobart, 12 c. IS Mdleverer v. Redshdic^ \ Aid., do. Stdte V. Wilson, 7d Kas., dd4. McMullon V. IloffmdH, 174 U. S., (idl), the court saying: ‘‘Where parties have woven a net of fraud and wrong, it is no part of the duties of Courts of Justice to unravel the threads and separate the sound from the unsound.” Widoe V. Wehh, 20 Ohio St., 435. Armstrong v. Toler, 11 AVheaton, 258, 278, hy Marshall, C. J., cited and followed in Nash v. Monheimer , 20, 111., 215. (1868) Commissioners of Del. County v. Andreivs, 18 Ohio St., 49. G. A new contract connected with or growing out of an illegal transaction is itself also illegal. Cough V. Pratt, 9 Aid., 526. Bell V. Quinn, 2 Sanford’s Sub., 146. 7. The perpetual flowage contract and illegal renewfal lease were devices and instruments adapted to defeat, and were successful in defeating free, open and competitive bidding at the sale. Contracts operating to defeat the State in this way are void. Dement v. Rokher, 126 111., 176, and cases there cited. Greenhood on Public Policy, Buie 175, p. 183. Littler V. Jayne, 124 111., 123. Lloyd V. Malone, 23 111., 43. 8. The contracts were attempted evasions of the statutory prohi- bitions against the sale of the 90-foot strip, and against the making of a lease of either land or water-power for more than 20 years. These contracts grew out of the evasion of these restrictions. All such contracts are void. Mansell v. Temple, 3 Gilm., 93. MaKaly v. IMayor, 3 Hun., 66. Greenwood, Buie 470, p. 545. 9. The contracts were upon grossly inadequate consideration. This is expressly charged in the Information. (Abst., p. 26.) H) The (‘oiisidei’atioii was foi* $2,-!0f) The (‘oiisideralioii was for ‘‘IV’ 500 OOie eoiisideration Avas foT “J” 50f) The eoiisideration Avas for “I\” 1,000 $4,200 For C — $150 per annum. Tlie eAudence shows that the purported franchise, if A^alid, lias a A^aliie of OA^er $2,000,000. In suspicious contracts “the bona fides should shine clear as the sun.” Sharsavood, J., Bastion v. DougKerty, 3 Phila., 30. The failure of the defendant to produce evidence removing this difficulty raises the presumption that the evidence would have been unfavorable to it. Stock Exchange v. Board of Trade, 196 111., 396, 407. (The court takes judicial notice of the measurement of water in power. i ■ V • Sanborn v. People’s Ice Co. (Minn.), 84 N. W., 641-3. Kent’s “Mechanical Engineer’s Pocket-Book,” p. 588.) Such gross inadecjuacy of consideration is ground for declaring the contracts void. Macoupin Co. v. People, 58 111., 191. Beall y. Bingmau, 227 111., 295. Especially, when there is any element of illegality in the con- tracts. Henderson v. Palmer, 71 111., 579. VII r. THE DECREE ERRS IN THAT IT IS NOT CONSISTENT AVriHI ITSEEF OR THE PRIOR RULINGS AND HOLDINGS OF THE COURT UPON THE CONTRACTS. 1. The decree is made Avithoiit ])rejiidice to future ])roceedings against the lease, “Exhibit B.” (Abst., pj). 34-35.) The same infirmities which made the lease, “Exhibit B,” illegal and sul)ject to future attack, viz., the clause extending its life be- yond twenty years, the illegal use of canal property, the absence of authority in the Commissioners, and the evasion of the restric- tions in the statutes — all these are found in the Flowage Contract, ‘‘Exhibit A,’’ the Feeder Lease, “Exhibit C,” and most of them in the Pole Line Lease, “Exhibit K.’’ It is an error to single out this lease. and save it out for some future attack, but protect all the others against such attack. 2. It is an error in the application of the theory of chancery proceedings, for the Court to find the necessity for saving out the lease for future attack and not itself go on and administer complete relief. 3. The Court during the trial and argument expressly held the Flowage Contract itself void as a perpetuity. (Abst., p. 1718.) It is inconsistent with such holding to dismiss the bill. The information contains the prayer for general relief, and by ■ paragraphs VII, IX and X charges in apt terms that these con- tracts were void. Under the prayer for general relief the Court should have decreed them to be void. Stanley v. Valentine, 79 111., 544. Gibbs V. Davies, 168 111., 205-211. Penn v. Vogler, 182 III., 76-107-8. Hopkins v. Snedaker, 71 111., 499. Walker v. Converse, 148 111., 622. Cook V. Martyn, 2 Atkins, p. 2, (id., ).■ “Praying general relief is sufficient, though the complain- ant should not be more specific in the prayer of the bill; and Vr. Robins, a very eminent counsel, used to say: ^General relief teas the best prayer, next to the Lord^s prayer.’ ” — Per Lord Hardwicke. 4. The decree dismissing the bill on the merits is an adjudica- tion against the State on all points, and unless reversed is liable to be pleaded as if it were a bar to any future proceeding. Union Pacific By. Co. v. C. B. I. & P. By. Co., 164 111., 88. 5. The decree presents the same inconsistencies as to the Kan- kakee Feeder Lease. 21 . DIVISION TWO. THE STATE OF ILLINOIS OWNS THE BED OF THE DES PLAINES RIVEK, AND SOME ADJOINING LAND ON EACH SIDE THEREOF IN SECTION 25, TOWN 34, RANGE 8, AT THE SITE OF THE PROPOSED DAM AND POWER HOUSE OF THE DEFENDANT, THE ECONOMY LIGHT AND POWER COM- PANY, TOGETHER AVITH THE WATERS OF THE RIVER. I. THE ACT OF 1839 (FEBRUARY 26) MAKES THE MEANDER LINE THE BOUN- DARY OF THE LANDS AT THE SITE OF THE DAM, AND RESERA'ES THE BED OF THE RIVER TO THE STATE. THAT ACT HAS NEVER BEEN REPEALED. That section is a canal section and was not sold by the State until after February 28, 1839, after the enactment of the statute of February 28, 1839, declaring the Des Plaines navigable; and the act of February 26, 1839, making the meander the boundary. RIPARIAN LAN I)S BOUNDARY- — GENERAL RULE. The general rule of law in Illinois is that a conveyance of lands bounded on a river (whether navigable or not, and whether mean- dered or not) includes the land to the center of the stream, unless there are Avords to shoAv a contrary intent; and in the case of a meandered stream, unless the amount of land outside the meander is large and so far in excess of the amount described as conveyed as (1) to indicate in itself that there was no intent to conAmy the bed, or (2) to indicate mistake, or (3) to indicate fraud. In tliis case the area of the S. E. Quarter Section 25 (in wliich the dam is located) indicated on the S. E. fractional quarter, 114.72 acres out of 160, a shortage of 45.28 acres, which is large enough to justify the statement that it was not intended to be con- veyed. Hoiiclc V. Yates, 82 Ilk, 179. F idler v. Dauphin, 124 111., 542. Canal Trustees v. Haven, 5 Gil., 548. 11 ad road Co. v. Scliurmeyer, 7 Wall., 272. CANA 1 . LA N 1 )S ) IT N I )A H Y STATU TORY RUT.E. The Canal Act of 1839 was passed to reverse this rule as to ('anal lands, and exclude the bed. ^C\n Ac'.t to amend the several laws in relation to the Illinois and .Michigan Canal” (ai)i)roved and in force February 26, 1839) : Sec. 2, Cl. 11: Lands situated upon streams which have been meandered l)y the surveys of public lands l)y the United States shall he considered as hounded by the lines of those surveys, and not by the stream.” Laws of 1839, p. 177. Same statute in Stead’s Canal Comp, p. 59. No re])ealing act has ever been passed abrogating this provision. It has not been repealed by implication. ‘UVn Act to provide for the completion of the Illinois and Mich- igan Canal and for the payment of the canal debt,” approved and in force February 21, 1843 (L. 1843, p. 54, Stead’s Canal Comp., p. 76), does not, either expressly or' by implication, repeal the Act of 1839. The Acts are for different purposes, the Act of 1839 being per- manent, the Act of 1843 being temporary ; and there is no necessary conflict between them. ‘‘The repeal of an existing law, by implication, is not favored and * * * the repugnance between statutes must be so clear and plain that they cannot be reconciled, to resort to this doctrine.” Citi) of East St. Louis v. Maxicell, 99 111., 439, 443. Repeals by implication are not favored. Harding v. B. B. I. S St. L. B. B. Co., et al., 65 111., 93. Hume V. Gossett, 43 111., 299. Board of Supervisors v. Campbell et al., 42 111., 492. The People v. Barr, 44 111., 201. Fowler v. Pirhins, 77 111., 274. Town of Ottawa v. Countg of La Salle, 12 111., 339. 2:5 VUliUje of llifdc Parlv v. Cemetery Ass^ii, 1 H) 111., 14). Tyson et nx. v. Posileivoite eJ oL, 1:5 III., 727. Hunt V. Chlcayo Horse S Dummy Ry. Co.,^2] III., (138. Trausch v. County of Cook, 147 III., 5:54. Bruce v. Schuyler, 4 Gil.', 221. Culver V. The People, 161 111., 89. Village of Ridgway v. County of Gallatin, 181 111., 521. Covington v. City of East St. Louis, 78 111., 548. The People v. Murp/hy, 202 111., 493. Rouse V. Thompson, 228 111., 522. Covington v. City of East St. Louis, 78 111., 548. 23 Am. & Eng. Ency. Law, p. 489. 11 . THE CANAL LEGISLATION SHOWS SEVERAL RENEWALS OF THE ACT OF 1839 AND A LEGISLATIVE INTENT AND FOLICY TO KEEP IT IN FORCE. Eederal legislation donating canal lands: — See Acts of Congress, 1822, 1827, 1833, 1842, 1854. Canal Comp., p]). 1-4. Canal Lands — Legislation on Sales of An examination of the Canal Acts shows that the policy of the State on canal lands as settled hy the Act of 1839 has never been changed. The Canal Act of 1829 gave the Canal Commissioners unre- stricted power of sale. Canal Comp., p. 14. The early acts of canal legislation reserved from sale to the State the right to take and use the uniters and streams free of all claims for damages. For State legislation fixing policy of State on canal lands, see Acts of 1829, 1831, 1836, 1837. (Canal Comp., pp. 14, 17, 30, 38.) Act of 1833 abolished the office of Commissioners. (Id., p. 21.) Act of 18:56, creating new board, provided for sales of certain specified lands, on instalment plan, with forfeitures for' non-pay- ment. (Id., p. 30.) Act of July 21, 1837, authoilzed sale of certain canal lands. (Id., p. 48.) 24 Act of 1839, February 22, autliorizes sale of certain water lots and lands. (Id., 52.) Act of February 2b, 1839, amends ‘^tlie several laws in relation to the Illinois and Michigan CanaF’ and enacts the meander line into a true boundary, and forbids sale of bed of stream in canal lands. (Id., 59.) As to any sale made or action had after the amendment took ef- fect, this amendment became a ]nn‘t of the preceding statute, as if originally part of it. Holbrook v. Nichol, 36 111., 161. Turney v. Wilton, 36 111., 385, at 393. Endlich on Statutes, Sec. 294. Blair v. Chicago, 201 U. S., 400, at 475. Richland Co. v. People, 3 111. App., 210, at 216. • Reg. y'. Overseers, 3. El. & El. (107 E. C. L.), 224. U. 8. V. Sapinkow, 90 F. E., 654 Farrell v. State, 54 N. J. L., 421. People V. Circuit Judge, 37 Mich., 287. The object of reserving the river bed, like that of reserving the water, was to insure the power and opportunity for obtaining an ample supply of water (and accessibility thereto) for the canal. It became in substance a part of the canal. Acts of February 1, 1840 (Id. p. 70) required the sale of sufficient land to pay interest, subject to all forfeitures and restrictions re- quired by previous legislation. The Mortgage Act of 1843, by its Sec. 13, and other subsequent Acts, re-adopted the Act of 1839. Act of February 21, 1843, entitled An Act to provide for the completion of the Illinois and Michigan Canal and for the pay- ment of the canal debt” (Id. 76; L. 1843, p. 54), conveyed by way of mortgage, the canal with all its appurtenances (plainly includ- ing among such appurtenances the right to take the water from the riYer— and the reserved river bed) as security for a loan for payment of the State canal debt of $1,600,000. No power of sale of the canal or its appurtenances was incorporated in the Act. Sec. 10 reserved lands previously sold, and in case of forfeiture 25 or relinqiiislnnont, provided for re-sale in accordance wifh Ihc laws of this State regulating the sale of Canal Lands. See. L‘) prohibited sales of lands by the Trustees until 5 rnontiis after completion of the canal hy the Trustees (which was provided for by Sec. 13), and for the gradual sale during 4 years thereafter “in the manner prescribed in the act of 9th January, 1836,” and then for sale of residue. Sec. 18 made the Act go into effect when and as soon as the full amount of the loan was subscribed, and the Trustees selected ; and when the Act goes into effect, so much of the former acts “as com flicts with the provisions of this Act are hereby repealed.” — (There was no conflict with the meander line Act of 1839.) Sec. 19 provided that whenever the trust provided by this Act shall have been fidly performed, the said canal and the canal prop- erty that may then remain shall revert to the State. (No re-convey- ance was necessary. Under the Acts of 1836, 1837 and 1839 large areas of canal lands were sold by the Commissioners on the installment plan. (The third installment on sales of 1836 was $344,278.) (Clmal Plistory, Canal Rep. of 1900, ]). 118; Tr., p. 6398a.) Sales since 1836 to December, 1842, are re|)orted by Gov. P'ord to be 40,295 acres, with balance then due the State on account of sales of $207,682.53. (Abst., p. 1901; Tr., ]). 6438.) After the financial ])anic of 1837, in which the State and its people became bankrupt, a great depression followed which con- tinued until after 1843. These sold lands were forfeited back to the State and had to be resold by the (kinal Trustees. In the re-sale, it was provided by the Act of 1843 should be according to the Act of 1836 (which was already amended by the Act of 1839.)' The Act of 1836 had already been amended by that of 1839, which was part of it (36 111. 161 &c supra). In adopting the Act of 1836, as a regidation of sales by the Trustees the Legislature adopted it in its amended form, including the meander line restriction. Two different rules as to sales, were not intended. This restric- lion, wliioli expressly applied io rc-saU^s of forfeited Icnids, also a])plie(l to i'l’esli sales of unsold lands. Again, the A(‘t 1843, March 4, (]j. 1843, j). 63, (hmal Comp. 86-7) regnlating acts of Trustees in leasing water-power and selling lands on which it conld he used, T‘e-ado})ted the terms of the act of Fehrnary 22, 1831), whicli already stood as amended by tlie act of Fehrnary 26, 1839, with the meander line restriction. This laud at the site of this dam ivas disposed of for ivater- pou'er, and is sahjeet to this restrietiou. Act of 1845, February 27, (R. S., 45, p. 602, Canal Comp., p. 90) expressly provided that the sales of the lands to which it applied shonid he in accordance with the Act of 1839. Act of 1847, March 1, amendatory of Act of 1845 (L. 1847, p. 24, Canal Comp., p. 107) expressly snbstituted the State Trustee for the Canal Commissioner, and by implication, subjected the Trustee to the same restrictions as the Canal Commissioners. These re-enactments of the Act of 1839 plainly shoiv there was no repeal. in. THE STATE OWNS THE WATER IN THE STREAM. Pluudeigh v. Damson, 6 111. (1 Gihn.), 544, at 550. The several Canal Acts heretofore cited, reserving to the State all the waters and streams, reserve title to the waters of the Des Plaines. (See Acts cited above. Division Two, Part II.) The State owning the water, owns it in trust for the whole people for the paramount right of navigation ; and mbject thereto the flow thereof in trust for the riparian owners. West Chi. St. R. E. Co. v. People, 214 111., 9, 20; affirmed 201 U. S., 506, at 520, 524. Druley v. Adam, 102 111., at 193. People V. Canal Appraisers, 33 N. Y., 461. 27 IV. THE SURVEYS OF THE RIVER SHOW THAT IT WAS MEANDERFI). The evidence on tliis is found — (.1) In the Government Field Notes (Transcript pt). 5717-5720, 57()o-5782). (Abst., p. 1724.) (2) In the Government Township Maps of this survey, McCul- lough Exhibits 1 and 1-A, and McCiillongh Exhibits 2 and 2-A (Transcript, pp. 3713-3916; Abst., p. 1914-15). (3) In the Government Township Map of the township at the head of navigation (Township 39 N., E. 12 E.) (Transcript, j). 4932; Abst., p. 1922). (4) In the Canal Surveys of 1846-7, by which the Canal Trus- tees themselves drew and platted the line. Orr Exhibit ‘‘3” (Atlas, p. 3924; Abst., 1918). Orr Exhibit ‘M” (x\tlas, p. 3925; Abst., p. 1919). Orr Exhibit ‘‘7” (Atlas, p. 3927; Abst., p. 1920). These three Orr Exhibits are co])ies of the survey by the canal surveyor, A. 3. Mathewson, in 1846-47, made under the direction of the canal trustees. (5) In the ma]) called ‘‘Endolpli Exhibit 1.” This last is a survey made at the time of the trial by Surveyor Emil Eiidolph, assisted by Surveyor II. II. Bremer. It delineates the meander line of the Des Plaines Eiver along the right bank at the site of the dam and shows the coffer-dam and the progress of the work as it existed Aiiril 13, including the location of the ])ower- lionse on the coffer-dam, which is shown to be upon the ])roject- ing triangle of land outside the meander line. (Ahst., p. 1922.) (6) The testimony of Engineers 1 j. E. Cooley (Al)st., ]). 845) and Orr (Abst., p. 381) and Surveyors Rudolph (Abst., ])p. 776- 772), Bremer (Abst., ]). 786) and the canal ])lats of the Mathew,- son survey of 1846 (Abst., p. 1918) (summarized in this division of the argument), show that the river was meandered in 1821, according to the ])ractice of engineers, omitting nothing,— and again in 1846, and that the ])lat of the meanders of 1908 conforms to the plats of lioth those surveys. SUMMARY OF FIFLI) NOTES OF THE MEANDERS. ( 1 ) Tlio field notes show tliat tliey. were made in October, 1821. P. OF - TRANS. 5720 On ])age 1 of the exliihit Field Notes, volume 250, page 259, the surveyor records as follows : ‘Meandered nj) the N. hank of the Illinois River in Sect. No. 21 T. No. 31 N., K. 8 E.” Then follow the directions of the courses and distances thus : ‘‘S. 76 E. 13 00.” There are in all 9 of these specifications of ^meanders’ with courses and distances, and marginal notes. In the middle of the list of courses and distances, the surveyor notes bluff leaves the river.” (This is at the 'site of the proposed dam.) “Meandered up the N. bank of the Illinois River in Sect. No. 36 T. No. 31, R. 8 E.” 5763 On joage 11 of the exhibit of field notes, appears the follow- ing: — (Vol. 217, page 158.) “Meanders down the N. Side of La Plain through Sect. No. 1, T, 38 N. R., 12 E, from the head of navigation. ‘S. 31 E. 4.06 s. 18 E. 6.00 s. 2-1: E. 2.65 s. 13 E. 6.93 s. 151 W. 5.00 s. 301 W. 7.50 s. 31 W. 13.00 s. 13 E. 3.50 s. 51 W. 13.00 s. 7 W. 7.00 s. 16 W. 8.76 s. Ill W. 1.21 s. 6'E. 7.23 Oct. 17th, 1821, Jno. Walls to the cor. of F Sects. 1 and 12.” p. 207. ‘^Commenced meanderimg on the west bank of an island in Illinois River at the corner of fract’l Sect. 11 and 11 T., 31 N. of R. 9 E., thence down the River with the meanders thereof.” (This and the succeeding pages referring to “the isl- and refer to Treat’s Island. And (*()]Hiiioii(*(‘ lo (lesi^'iinle the as IIk; ‘Illinois lliver’ from the moutli, up what we call the l)(;s IMniries, and uses tlie term ‘Illinois River’ seveTiteeri tinnjs in these field notes, and the term “LaPlain” three times. It was suggested eontva that the language of the Act of (huigress of 1822 a])out connecting the waters of Lake Michigan and tlie Illinois River, showed that the name ‘^Bes Plaines’’ was disregarded, but here the Government Surveyor, in surveying this very river, under direction of Congress and reporting it to the Government, de- scribes it as the ‘Illinois River,’ only the year before that Act was passed, plainly the term ‘Illinois River,’ as used in that Act included as part of it, the Des Plaines River.) 5762 In Volume 247, page 156 (Field notes, pages 42-3), the sur- veyor says, “continued through Sect. 12, * * * carried up across the Portage Creek or swamp Oct. 16, 1821, John Walls.” (2) and (3). The Government Township Maps set out in Items (2) and (3) above, made by Surveyor John Walls in 1821, confirm this. V. The cases on the meandering of rivers examined : 1848 Canal Trustees v. Havens, 5 Gilni., 548. 1850 Canal Trustees v. Havens, 11 111., 554. 1868 Railroad Co. v. Scliurmeier, 7 Wall., 272, 286. 1889 Jeffris V. East Omaha Land Co., 134 IT. S., 178, 196. 1890 Hardin v. Jordan, 140 IT. S., 371, 381. 1902 Kean v. Calumet Canal Co., 190 U. S., 459. 1896 Fidler v. Shedd, 161 III., 462, 464. 1902 Albany B rid ye Co. v. People, 197 111., 199, 205. VI. Grants in DEROGxiTiON of public rights are. sthictly construed AND NOT EXTENDED BY IMPLICATION. Charles River Bridge v. Warren Bridge, 11 Peters, 426-50. Hnell V. City of Chicago, 133 111., 439. So grants of lands under or around a navigable stream imply no intent to discontinue the public right therein. Shively v. Boivlhy, 152 IT. S., 10, 58. ‘M) Coiin.^ dc., Lumber Co. v. Oleoif, (ifj N. TI., 380; 13 L. ll. A., 832. ThompHoii V. JCirer Co., 58 N. 11., 1. ‘‘Only tliat wliic'li is f^raiited in (-lear and explicit terms passes by a ^‘rant ot* property, franchises or privileges, in wlii(‘li llie government or the public lias an interest.” All doubts are resolved in favor of the State. Coosair Mining Co. v. South Carolina, 144 U. S., 550, 561. Ildiinihal, dc., U. Co. v. Missouri River Paeket Co., 125 U. S., 260-271. Sfe/ui V. Bienville Water Supply Co., 141 U. S., 67-80. “Grants of that character are to he construed strictly in favor of the iiublic, and whatever is not unequivocally granted is withheld. Nothing ]uisses by mere implication.” Ibid. Holyoke Co. v. Lyman, 15 Wall., 500. So even a charter right to construct a dam across the stream does not exempt the grantee from the obligation of a subsequent statute requiring the construction of a fishway. Parker v. People, 111 111., 581. Holyoke Co. v. Lyman, 15 Wall., 512, affirming 104 Mass., 449. Clement v. Metrop. West Side “L” B. R. Co., 123 Fed. Kep., 271. So a grantee of public land, on which is a dam causing the overflow of adjoining land, has no right to maintain the dam after such adjoining lands are taken by other settlers. Wilcoxon V. McGhee, 12 111., 386. The State was reasonably more particular to guard its title to the land grant conveyed to it for public uses and its own grants of portions thereof, than it was in construing grants of the general government to individuals for private uses from the general body of the i3ublic domain. Hence, the limitations in the Act of 1839. So the grant by the State of the right to maintain a dam in a navigable stream, while valid so long as Congress has not acted, is subject to the right of Congress to interfere in the matter when- ever it may deem necessary so to do. Pound V. Turek, 95 U. S., 459. V 1 1 . :n Tllb: I’HOCKKDING BY INFORMATION IS ANALOGOUS TN SOMR RESPFCTS TO F.JFA’TMRNT AND IN SOME RESPECTS TO QUO WARRANTO. It is analogous to ejectment in tliat it involves a trial of the title to land: ] . In the bed of tlie stream, 2. In the public easement, d In the claim of the defendant to the right of perpetual ease- ment of overdowage. If treated as an ejectment bill, then, under the doctrine that equity follows the law, the complainant is entitled to a new trial as of right. Rev. St., Ch. 45, sec. 35. And the court will make its order of reversal in time to enable the complainant to take its new trial. Strecni v. Lloyd, 128 Ilk, 493. The rule as to new trials in ejectment is more liberal than in other proceedings. mies V. Caldwell, 2 Walk, 35-41. Equator Co. v. Hall, lOb U. S., 8f). Sedgwick on Trial of Title to Land, 2 Kd., secs. 57(5-579. The state cannot maintain an action of trespass or ejectment to try title to its lands. Its remedy is by information for intru- sion. (The present information embraces this feature as auxiliary to the more freipient information in chancery.) State V. Arledye, 1 Bailey, 551. Jaeksou v. Winslow, 2 Johnson, 80. 2 Washburn Real Property, 539. 3 Bl. Comm., 2(51-2. The special reasons for liberality in granting new trials in ejectment were the ])ernianence of the estate involved, and its ef- fects on governmental grants, heirship and inheritance. All of these reasons apply with greater force to the title of the stiite ill tlie bod of this river, the existeiiee and preservation of this pnblie easement for future generations, and tlie protection of tlie riglits of the iieojde against the assertion of perpetual grants for jirivate uses. THE imOCEEDlNG IS IN SOME RESPECTS ANALOGOUS TO QUO WARRANTO. Tlie Information for intrusion is tlie state hs only remedy to pro- tect its titles. State V. Arledfje, 1 Bailey, 551. Jackson v. Winsloiv, 2 Johnson, 80. 2 Washburn R.eal Property, 539. The Information for intrusion protects the title of the state to its corporeal hereditaments, and its incorporeal hereditaments in land. The Information in the nature of quo warranto protects the title of the state to its franchises and incorporeal hereditaments inci- dental to sovereignty. Bev. St., Ch. 112, Sec. 1. • High on Extraordinary Remedies, sec. 602 et seq. Chicago Mutual Life, etc., Association v. Attorney Gen- eral, 127 111., 257. The right of the state in its lands, and its incorporeal heredita- ments in rivers, which it protects by Information against intru- sion, is of equal dignity with its right to incorporeal heredita- ments in franchises, which it tests and protects by Information in the nature of quo warranto. Upon an Information in the nature of quo warranto, the burden of proof is on the defense to show non-user of franchises, or to justify by showing legal right. Glint erman v. People, 138 111., 518. Catlett V. People, 151 111., 16. 111. Midland, By. Co. v. People, 84 111., 426. The same rule is recognized in cases of Information for intru- sion upon the rights of the State. People V. City of St. Louis, 10 111., (5 Gilm.), 351. Revell V. People, 177 111., 468. People V. V(Ui(lerl)Uf , 120 N. 287. ]]^esf Chieoffo Si. Uy. Po. \. P(‘(}ple, 214 III., 0; 201 IJ. S., ooi;. It is ex})i‘essly a])|)lie(l to an a])])li('ati()ii ])y the (o-owii to ])rovrait tlie erection of works in waters,— the crown claiming ownersiiip. Afiorney Gen. v. llieliavds, 2 Anstrntlier’s Cliy., 003-014. And in sncli case it is no answer to say that there was a remedy at law. Ally. Gen. v. Gaheay, 1 Aloll., 95. And it is not necessary to prove that injury will result to the ])nblic. Tiiat conclusively follows the infringement of the public right. , The court will not balance injuries and benefit. People V. St. Louis, 5 Gfihn., 350. Revell V. People, 177 Ilk, 468. Atty. Gen. v. Ely, de., R. Co., L. Ih, 4 Ch., 184. Atty. Gen. v. CoekennoufJt , L. ll., 18 Eq., 172. So in an action between private parties based n])on the alleged interruption of navigation by the construction of a l)ridge across the ])nblic navigable waters of the Arthur Kill, a portion of Stateii Island Sound, the defendants insisted that the court must presume that the conditions im])Osed by the Act of Congress in reference to such structures had been ('omplied with. The court, AV allace, J., said : ‘‘I have no hesitation in deciding that those who obstruct the use of a public' highway, whether on land or water, must justify the ac‘t by ])roducing their authority and proving that they have exercised it in essential conformity to its terms.” Pennsylvunid Ry. Co. v. Rolf i more, de., Ry. Co., 37 Eed. H., 129. To the same effect : Texareana, ete., Ry. Co. v. Parsons, 74 Fed., 408. Doxsey v. Jjong I. R. Co., 35 linn, 362. Cantrell v. Knoxville, ete., R. Co., 90 Teim., 638; 18 S. AV.. 271. :u Some analogy may be foimd in actions of trespass to lands; and tlie rides of evidence in refereiu'e to })roof of titles therein, as in the following (*ases: If a party justify a trespass by claiming title to premises un- der a jiatent wbic'li is good in ])art and bad in part, the burden of proof is on him to show himself within the efficient call of the in- strument under which he justifies. Rond ell v. Fay, 32 Cal., 354. Where the defendant sets up a defense of private right of way by prescri})tion and the issue is on that plea, the liurden of proof as to the alleged right of way is on the defendant. Black V. O’Hara, 54 Conn., 17 ; s. c., 5 At\., 598. Where the defendant admits his act of spoliation it devolves upon him to show that it was not committed on plaintiff’s prop- erty, and his failure to do so justifies the direction of a verdict for plaintiff. Campbell v. King, 32 Mo. App., 38. In trespass for removing property from plaintiff’s land, where defendant claims a license to enter and remove it the burden is on him to show it. Collier v. Jenks, 19 E. I., 493; s. c., 34 Ath, 998. DIVISION THREE. The Des Peaines River is a Navigable Stream. I. HISTORICAL MATTER. (Since 1848 the river was substantially superseded by the I. and M. Canal, just as later that canal Was substantially super- seded by the railroad on each side of it, as the avenue of com- merce chiefly used; therefore the historical evidence acquires special importance.) 1. CLASSIFICATION OF HISTORICAL MATTER. The historical sources concerning the navigability of the Des Plaines River fall naturally into three broad classes : A. Original narratives of the passage of the des plaines river by DISCOVERERS AND TRADERS. Among these are the following: a. Marquette and Joliet, having learned of another waterway to Mackinac than the one by the Fox and Wisconsin Rivers, by which they had reached the Mississippi, went up the Illinois River and the Des Plaines River. 59 Thwaites’ desuit Relations,” Ril. (Abst., pp. 685- 699). h. The second recorded use of the Des Plaines River was made by Father Marquette on his second voyage to the Illinois Indians. 59 Thwaites’ '‘Jesuit Relations,” 187. (Abst., p. 688.) 6*. A very full account of the passage from Chicago down the Des Plaines in 1699 is given by Father St. Cosme, a priest of the Seminary of Foreign Missions. (Abst., pp. 700-701.) Shea, “Early Voyages Up and Down the Mississippi,” 54-56. (Abst., 700-701.) d. In Jean -Ba])liste Pein-anlt, a trader from Montreal to Caliokia, spent a year in tlie latter village, where he eolleeted a load of furs and other goods and returned to the lakes hy the Des Plaines River and the Chicago x)ortage. J S(*hoolcraft, ‘‘ Indian Anticjuities,” .351. (Ahst., pp. 703- 704.) e. In 1700, Hugh Howard, a trader from Detroit, after making the (‘ircuit of the lakes trading at different points, ])assed down the Des Plaines and Illinois to Cahokia. /'. 1823, Narrative of Provisions for Ft. Dearborn brought from St. Lonis 11 ]) the Des Plaines. ( In account of Major Long’s Expedi- tion to sources of St. Peters River.) ( Ahst., j)}). 704-712.) (). From 1825, onwards, John Hamlin of Peoria made trading journeys np the Des Plaines River in a Durham boat. Drown, “Record and Historical Review of Peoria,” 83, 84. (Ahst., ]). 959.) li. In 1847, a boat with sixteen men and a yoke of oxen was sunk in the lies Plaines River. “Joliet Signal,” June 8, 1847. (Ahst., 403-4.) i. A case which is testified to by George W. Reed' is that of the carriage of farm products in 1834 down the Kankakee River and np the Des Plaines en route to Chicago. This is described in Wood- ruff’s “History of AVill County.” ethers ap])ear in the evidence. (Ahst., p. 157.) B. CONTEMPORARY STATEMENTS THAT THE DES PLAINES RIVER WAS NAVIGABLE. This class of istatements may be further divided into two sub- classes. (1) Contemporary directions to travelers as to the best way of getting into Illinois. This would include contemporary maps and guide books. As historical testimony these are as valuable as class I. Among these are : a. i\[axo made by Marciuette and xmblished by Thevenot in Paris 37 ill 1081; reproduced in Tliwaites’ ^Mesuit ’Relations,” Vol. 59, p. ir)4,*sliows tlie portage. (Abst., p. 713.) b. jNIap by Joliet in 1074, })n])lislied by Tliwaites in liis ‘Mc^siiit Relations,” Vol. 59, ]>. 80, shows the ])ortage. (Abst., 080.) c. Dana’s ‘Mlescription of the Bounty Lands,” p. 57, Route Xo. 2, printed in 1819. (Abst., pp. 714-718.) d. ‘‘The X'avigator, ” printed in 1824, p. 113. (Abst., pp. 718- 719.) e. Gazetteer of the States of Illinois and Missouri by L. C. Beck in 1823, p. 151. (Abst., pp. 723-720.) f. “Illinois in 1837,” pp. 34-30 (excluded by court). (Abst., p. 722.) Others appear in the evidence. (2) The second sub-class is made up of statements by contem- poraries that the Des Plaines Eiver was used as a regular water- way. Their statements show contemporary knowledge and are based either upon a personal investigation or personal knowledge. a. Marquette’s statement that he and doliet learned from the Indians a shorter waterway to the Great Lakes than the Fox and Wisconsin route by which they had come. The shorter route was the Illinois and Des Plaines Rivers, as is sliowti l)y the maps which have been left by both explorers. Statement in Tliwaites’ “Jesuit Relations,” Vol. 59, p. Ibl. (Abst., p. 685.) 5. Dablon’s suggestion of the feasibility of making a canal. This is based upon Joliet’s observation printed in Margry, Decou- verte et Efabllsse/meyifes des Fraticais, etc., Vol. 1, 267. (Abst., ]). 732.) r. Statement in a letter by Governor St. (1air written in 1790, ])rinted in Smith’s St. Glair Papei-s, Vol. 1, p. 174. (Abst., pp. 728-729.) d. Major Long’s Report in 1817, printed in the United States Government publication as Executive Document No. 17, I6th Gon- gress. First Session, published in House Documents 12 to 13, Serial No. 32. (Ahst., p. 732.) dames Flint, “Letters from America,” 1818-1820, in e. 38 Tliwaitos’ “l^]arly Western 3^ravels,” Vol. 9, p. 18(). (Abst., p. 73i).) /’. George Ogden, “Letters from tlie West,” 1821-1823, in Tliwaites’ “Karly W'estern Ti*avels,” Vol. 19, p. 54. (Abst., p. 730.) (j. “Keport of (knmnittee on Roads and Canals,” March 30, 1826. Report No. 53 in Report of Committees, Second Session, Eighteenth Congress. (Abst., pp. 731-732.) INEanv others appear in the evidence. C. CONCLUSIONS BEACHED BY HISTOEIANS OF RECOGNIZED STANDING AFTER MAKING A STUDY OF THE SOURCES OF MATERIAL IN REGARD TO THE NAVIGABILITY OF THE DES PLAINES RIVER. a. Parkman, “LaSalle and the Discovery of the Great West,” p. 69. (Abst., pp. 733-739.) \). Justin W^insor, “Mississippi Basin,” p. 24. (Abst., pp. 741- 742.) c. L. Perrand in Hart’s “x\merican Nation,” Vol. 2, p. 26. (Abst., pp. 747-8.) Others appear in the evidence. 2. HISTORICAL MATTER CHRONOLOGICALLY ARRANGED. 1673 — Marquette and Joliet: Thwaites’ “Jesuit Relations,” Vol. 59, pp. 161-7. (Abst., pp. 686-688.) Whnsor’s “Narrative and Critical History of America,” Vol. 4, pp. 178-9. (Abst., pp. 1659-60.) Breese’s “Earlv Historv of Illinois,” pp. 235-270. (Abst., p. 737.) 1674 — Joliet’s Report to Governor Frontenac; and his to the French Government, ibid. (Abst., p. 1661.) (Dablon’s “Narrative of Joliet’s Discoveries,” Vol. 58, Jes. Rel.; Atlas, p. 3921; Abst., p. 713.) 1674— Joliet ’sAtap (Atlas, p. 3919; Abst., pp. 686, 688). Thwaites’ “Jesuit Relations,” Vol. 59, p. 86; 4 Winsor 209. 1674-5 — “Marquette’s Second Voyage,” 59 Jes. Rel., 185, 211. (Abst., p. 688.) ' :]9 Parkinaii’s “LaSalle and tlie Discovery of the (ii-eat West,” ])]). ()S-9. (Abst., p. 7d().) ]()77 — Enlarged map from Joliet: Parkmari’is “LaSalle and the Discovery of the (Jreat West.” (Al)st., j). 7d8.) ]()99 — St. Cosine; Shea’s “Karly Voyages Up and Down the Mis- sissippi,” p]). 7)4, h'O. (Abst., ]). 700.) 1787 — Ordinance of July 13. 1789, Aiig. 7 — Act continuing the Ordinance in force; 1 U. S. St. at L. 50. 1790 — Hugh Heward’s Journal: “A Trip from Detroit to Kas- kaskia. ’ ’ (Burton manuscript of Detroit and Chicago Historical So- ciety, in copy.) (Abst., pp. 745-6.) 1790 — Governor St. Clair’s Eeport to President AYashington. 2 St. Clair Papers, 174. (Abst., p. 728.) 1793-1797 — Imlay’s “Topographical Description of North Amer- ica.” (Abst., p. 726-7.) 1795 — Treaty of Greenville, granting right of passage up and down the Eiver. TV Am. St. Papers, Class 2, Indian Affairs, Vol. 1. (Abst., ])p. 760-2.) 1801-1811 — “The Navigator,” approximately one edition each year; 12th edition, p. 113. (xAbst., ])p. 718-739.) 1816— Pottawmtomie Treaty (By Chief Black Partridge), ceding tract ten miles wide on each side of the river. (Abst., pp. 762-3.) 1816-1817 — Survey and Eeport by Major S. H. Long, Ex. Doc. No. 17, St. Papers, 1st Session, 16th Congress. (Atlas, ]). 3921; Abst., pp. 706-712.) 1819 — Dana’s “Description of the Principal Eoads and Eoutes by Land and AVater Through the Territory of the United States.” (Abst., ])]). 714-716.) 1819 — ^Eield’s “Letters from Americ'a,” published Edinborough, 1822, ]). 186. (Abst., ])p. 729-30.) 1821 — Ogden’s “Letters from the AVest,” published New Bed- ford’s, 1823. (Abst., p. 730.) 1821 — IT. S. Survey “Meanders Down the North Side of the Le Plein, from Section 1, T. 38, N. E. 12, E., from the Head of Navigation, Oct. 17, 1821, John Walls.” 1823— Major Long’s Expedition, Narrative of B. Keating (Al)st., pp. 705-6) : “Lieut. Hopson, wdio accompanied us to the Des Plaines Eiver, told us that he had traveled it with ease in a boat loaded with lead and flour.” 1823 — Beck’s Gazetteer of Illinois and Alissouri, ]nd)lished, Al- bany 1823, i)p. 19-20. (Abst., pj). 723-6.) 1825-1832 — Hamlin’s traffic between Peoria and Chicago; narrated 40 in Drown’s “ 1 listoric-a! \4(*\v of Peoria,” {). 80. (Abst., ]))). (578-0.) 1820 — 11. S. Report on (-anal, Eigliteentli Congress, Second Ses- sion, House Reports, Vol. 1, Serial No. .122 (Abst., pp. 700-1) : “OOie experience to wlii(‘'li tlie committee refers is that of many years, and it is a matter of liistorical notoriety: it is that of repeated passages liaving been made by uninterrupted navigation from the river into the lake.” 0. SUMMAIUES BY HISTORIANS AND ENCYCLOPEDISTS. Parkman’s ‘^LaSalle and the Discovery of the Great West,” pp. (55, 70. (Al)st., ])]). 705-0.) 1834 — Schoolcraft’s ‘^Expedition to the Source of the Mississippi,” p. 121. (Abst., pp. 709-40.) 1836 — Murray’s “Encyclopedia of Geography,” American edition, co])yright 1836. (Abst., pp. .213-14.) Smith’s “History of AVisconsin,” published Madison, 1854, AMI. 1, ])]). 82-M (Abst., pp. 740-1.) Andraes’ “History of Chicago,” pp. (57, 91, 92, 100, 107, 108. (Abst., p. 1916.) 1837 — ’’Illinois in 1837,” published in Philadelphia, 1837, pp. 33-36. (Abst., p]L 208, 722.) _ (Excluded by the Court below, Abst., ]L 960.) (“The Portage” is made a heading in the Argument, 'under which citations from the works above mentioned and from numer- ous others are collected.) II. PHY^SICAL CHARACTERISTICS OF THE ILLINOIS AND DES PLAINES RIVERS, 1. The immediate reach of the river most involved in the 16 miles from Joliet to the confluence with the Kankakee: 2. Elaborate descriptions of this reach as well as of the rest of the Lower Des Plaines and Illinois are found in the following: Surveys and Reports on by L^. S. Engineers : 1816-1817 — Major S. H. Long, ICtli Congress, 1st Session, Doc. No. 17. (Abst., ]). 706.) 1825 — L". S. l\eports on Canal, — on memorial of Illinois. Refer- ence to use of River in Natural State. — House Reports of 18th Congress, 2d Session, Vol. 1, Serial No. 172. 41 182G — ^larcli .‘U), Ditto, snino report (‘orioiirrod in by whole lioiis(;. (Abst., pp. 7o0-7dt.) 18()7 — Report of (4en. J. II. Wilson, Feb. 15, 18f)7, H. R. 48tli Con- gress, 1st Session, Fx. Doe. No. IG. (Abst., p)). G48-50, 1G98-9.) 18G8 — Second Report of Gen. J. H. Wilson, with Asst. Engineers Gooding and Worrall. • , ' (1 IT. S. Engl*. Rep. 18()8, pp. 442, 459-4G5; Abst., pp. 1484-5.) 1874-5 — Report of Col. J. N. Macomb and Asst. F. C. Doran. (U. S. Engr. Rep. 1875, App. CC7, pp. 94-100; Abst., p.Gol.) 1884 — U. S. Engineers Reports, 1884, App. H. H. Vol. Ill, pp. 1957-1962. (Known as Maj. Benyanrd.) (Abst., p. 1699.) 1887 — Report of Major Handbnry, Comstock Board, and Engineer Duane. (U. S. Engrs. Rep. 1887, Vol. Ill, App. I. I., pp. 2122- 2129; Abst., pp. 652-3.) 1890 — Report of Sanitary District of Chicago, L. E. Cooley, Chief Engineer, on Lakes to Gulf IVaterwav,” pp. 3-4. (Abst., p. 1186.) 1890 — Report of Capt. W. L. Marshall. (From Ex. Doc. 264, H. R., 51st Congress, 1st Ses- sion, Abst., p. 653.) 1900 — Report of F. S. Engineers, 1900, Part V, p]). 3857-59. (Abst., p. 1125.) 1901 — Report of U. S. Engineers, Part IV, pp. 3050-3060. (Abst., pp. 1126-7.) 1905 — Report of Ernst Board on Fourteen Foot Water lYay. (H. R. Doc. 263, 59th Congress, 1st Session, Abst., p}). 660-662, 809, 1712.) 1907 — Report by the Internal Improvement Commission of Illi- nois. (Cooley Ex. 1, Abst., ]). 921.) 1907 — IT. S. War Department’s Reply (Oct. 28, 1907), (to enquiry by Attorney General Stead) that the Des Plaines is con- sidered by the Department a navigable stream. (Abst., pp. 181-2;) A boat 70 feet long, 18 feet wide and drawing 2 feet of water, carrying 60 tons of freight, starting from Lake ^Michigan, would go up the Chicago River through the Drainage Canal to Dam No. 1 at Joliet. (Testimony of Cooley, Trans., ]). 2466; Abst., p. 832.) (Boats of this size and tonnage have been in common use for many years. See list of merchant steamboats. H. R. Doc. 264, 51 Congress, 1st Session, pp. 119-128; Abst., pp. 656-60.) 42 A boat 4 feet deep draws wlien loaded a])ont 3 feet of water. (Surveyor (Jen. I liitehins, Imlay, ])p. 489-90; A])st., ]). 938.) Tlie situation at l^am No. 1 is discussed elsewhere in this brief. Dam No. 1 is a State dam Imilt in aid of navigation in the canal, which coincides with the river here, and as to its incidental water power privileges is under an invalid terminable lease, which, if not abrogated by the State, expires by its own terms July 17, 1916. ' . ! In reaching this point the boat would have passed through the Lockport lock of the Sanitary District channel, by which it would have been lowered 421 feet. (Testimony of Cooley, Trans., p. 2468; see Abst., p. 832.) Below Dam No. 1 it enters upon Lake Joliet and would en- counter no obstruction throughout the rest of the Des Plaines Biver. (Testimony of Abbott, Trans., p. 1099; Abst., p. 454.)” (Testimony of Clement, Trans., p. 827 ; Abst., p. 392.) (Testimony of Parrent, Trans., p. 1090; AbsC, p. 452.) In order to pass the 12 existing bridges (See U. S. Engineers’ Special Keport of 1905, Ernst Board Doc. No. 263, p. 49) for which the Sanitary District have not yet exercised the power of substituting swing bridges (Ernst. Pep., p. 49) the boat must needs be of the barge type referred to in Captain Marshall’s report. The legislation providing for swing bridges in this area (Act of ]\lay 13, 1897, to amend Sanitary District Act) will presently make such improvement thnt boats taller than those of the barge type may freely use the river. The Des Plaines Elver from Dam No. 1 to the mouth is, at its broadest point, from one thousand feet to a quarter of a mile wide. (See Lorimer’s testimony, Trans., p. 339; Abst., p. 196; AYoer- mann’s testimony, Trans., p. 4908; Abst., p. 1453.) At its narrowest point, on the left hand channel of the river at Treat’s Island, it is 128 feet wide. (See testimony of Zarley, Trans., p. 2603; Abst., p. 871.) This boat wmuld find from 3-1 feet of water to 20 feet of water throughout tlie distance. (See testimony of Elanders, Ti-ans., ]). 43 974; Abst., }). 429; lestiinoiiy of (^ooU'v; (Joiisolidntcid Ib'ofik^, Abst., |). r)()2G.) It would find a (uirreut of 7.4 miles ])er liour at one j)oiiit, and a eurrent varying from an imperceptible current to one about 3 miles an hour the rest of the way. (See House Doc. 293, Hngrs. Hep. of 1905, p. 41, Abst., pp. 660-662.) ‘Ht was dead water half the way.” (Dep. of (dement, Al)st., p. 395.) A boat going upstream from the Illinois and entering the Des Plaines would encounter the same conditions reversed in order of time. The Des Plaines in its natural condition had a depth for a boat of this capacity for 3 months in the spring and 2 months in the fall, or about 150 days. (See testimony of Hicks, Trans., p. 1006; Abst., p. 436; testimony of Parrent, Trans.*, p. 1090; Abst., p. 452.) For abont 4 months, the three winter months and one additional, weather conditions would prevent its nse, as they do all northern waters. (See testimony of many witnesses, e. g., Cooley, Abst., p. 818.) For from 2 to 3 months in each year in a state of nature low water conditions would prevent the use of a boat of this capa- city. (See testimony of AV. AV. Stevens, Trans., ]). 886; Abst., p. 411; testimony of Parrent, Trans., p. 1096; Al)st., ]). 452.) For about two months of these three a boat drawing about half this amount of water could be used. (See testimony of Parent, Abst., p. 453.) Boats of half this capacity have been in general use upon north- ern and western streams for many years. (See testimony of A^an Sant, Abst., pp. 859-69.) 3. Depths of the des plaines: A summary of the several charts of soundings, and profiles on the river, platted from such soundings, is presented in the argu- ment under this heading, also a description of the testimony of witnesses. Special attention is called to the following: The consolidated profile of the river, summarizing several dif- 44 1‘ereiit surveys. This is uiade by Engineer Lyman J]. Cooley, and is known as ‘‘Cooley’s Exhibit *>” (Atlas, }). 3945; Abst., p. 1923). The (k)oley Exhibits 25, 23 and 27. (Atlas pp. 3969, 3970 and 3971 ; Abst., pp. 1931, 1932.) These are plats of this reach of the river by the United States Surveys of 1883-1890. The AVilson Profile of 1867. (Abst., p. 1932.) Cooley Exhibit 35 (Atlas, 3974; Al)st., p. 1933). (’ooley Exhibit 36 : The 'Macomb Profile of 1874 (Atlas p. 3975). (Abst., p. 1933.) In connection 'with these profiles the material contained in the Government Reports is tabulated; and the profiles and tables of depths will be found in the Argument. 4. The aetificial depletions of the des plaines : Among these are the following: (1) The State Pitch (“Orr Exhibit 5,” Atlas, p. 3925; Abst., p. 1918). (2) The Illinois & Michigan Canal cut off the natural drain- age tributary to the Des Plaines. (3) The use of the Des Plaines to supply two feeders of the canal. (4) The Cook County Drainage Ditch of 1852 drained Mud Lake away from the Des Plaines. These Ditches of the Cook County Drainage Commission were authorized by the Act of February 17, 1851, entitled “An Act to Drain the A¥et Lands About Chicago” (specifying the Mud Lake region as “lands lying in townships number 38, 39 and 40 in Ranges 12, 13 and 14 East of the 3d P. M.”), L. 1851, p. 195; and this was superseded by the Act of June 23, 1852, incoporating the Commission and adding township 37 to the list. L. 1852, p. 240. (For a description of their work, see Governor Bross’s History of Chicago, pp. 49 - 50 .) (5) The Ogden-Nickerson-AA"entworth Ditch further drained Mud Lake water and diverted the main stream to the east and out into the Chicago River. (6) The Ogden Dam, built by the City of Chicago, par- tially separating the river from the Ogden Ditch, prevented the Des Plaines River from running out into the Chicago Ikivor ill liifjli i('(ilci', Jiiid pi (‘vend'd tin' vv;d(‘rs of Mini Lak(! and the surrounding- swamps IVoin running into the* l)(‘S Plaines in low irolrr, and th(‘ latt(‘r For Hu' fjrroli'.r portion of the year. For (‘onsli'iK'tion and (d'lecd, of this dam s(‘(; t(;s- limony of Benezette Williams, of the first Drainages Ikoard of tlie Sanitary l)istri(*t of (diicago (Abst., ]). .‘>41); testi- mony of Lyman E. Cooley (Abst., pp. 84()-9), and reports of diieago (dnmnissioner of Public Works. (Abst., p. d42.) (7) The River Diversion by the Sanitary District of Clii. cago in tlie years 1892-1894, de])leted tlie river. (8) Tnliabitation, denudation, tiling, ditching, draining and (‘ultivation depleted the river. (Ev. of L. E. Cooley, Abst., pp. 824-8.30; Dep. of Wiglitman, Abst., p. 428; Dep. of Hicks, Abst., p. 436; Dep. of Belz, Abst., p. 443; Dep. of Paddock, Abst., pp. 469-70; of Clement, Abst., p. 394.) Cooley Ex. 37 ; Tr., pp. 2286, 3976a. 5. The slopes of the Des Plaixes : These slopes, as surveyed and platted by United States engi- neers are assembled and exhibited in the consolidated profile, ^‘Cooley Exhibit 3.” They are not prohibitive of navigation: much greater slopes are successfully navigated. 6. Sinuosities of the eiver are not excessive or unusual and ARE not such as PREVENT NAVIGATION. (Comparison of Des Plaines with the Illinois, the Eox, the AVis- consin, and the Snake on maps in Ap])endix. House document 263, kieport of 1905, p]). 41-42, Abst., p ; Cooley Exhibits 2, 3, Abst., p ; Cooley Exhibits 25, 26, 27, Appendix.) 7. The former dams and the bridges (crossing the river do not CHANGE ITS CHARACTER OR PREVENT ITS NAVKJATION. Clark V. Lake, 1 Scam., 229. West Chi. St. R. Co. y. . People, 214 Ilk, 1. Report of Marshall, 1890, Doc. 264. 8. The relation of the des plaines river to the continental WATER WAY. Cooley Ex. 37; Trans., 2286, 3976a. This is shown by ‘‘CkxMev Exhibit .‘>7,” (Atlas, ]). 3976A; Abst., p. 1934), which was excluded by the Ck)urt. This was eri’or. 9. The testimony of neighbors as to the river. 40 10. J^]x]M0RT TESTJMONY ON NAVIGABILITY. THE EXPERT TESTIMONY FOR THE STATE AND FOR DEFENDANT COMPARED. I'lie effect of retainer and employment. Per Miller, d., 4 Dillon, 448. 4 Am. Lawyer, p. 201. Frazer v. Jemison, 42 Mich., 206. Springer v. Yerhes, 22 Chi. Legal News, p. 256. Morse’s Famous Trials, The Techborne Claimant. 11. The two existing dams at Marseilles and Joliet are sub- ject TO REMOVAL BY THE StATE FOR NAVIGATION PURPOSES. Therefore the navigablity^ of the river is to be determined in- dependent OF their presence. I. As to the Marseilles Dam, the right of navigation was ex- pressly preserved by the Act of March 9, 1867, 2 Pr. L., 810-11, and that of June 19, 1869, 4 Pr. L. 1869, p. 498. II. As to Dam No. 1 at Joliet, it was begun by the Canal Com- missioners in 1840 and finished in the fall of 1841 (5 Gilm., 553) as a part of the navigable canal. (See Canal History, Canal Eep. 1900, p. 155.) A. The incidental water-power developed by it was made the subject of conveyances, as follows : (1) By the Canal Trustees to Hawk and Preston, July 17, 1855, to commence one year in futuro, viz., July 17, 1856, and continue twenty years, with a conditional privilege of renewal for twenty more (to July 17, 1896), and again for twenty more (to July 17, 1916). (2) The property reverted to the State upon the extinction of the canal debt and discharge of the Trustees in 1871. (3) The new Canal Commissioners, August 10, 1876, purported to renew the old lease to one G. W. Hyde, assignee, for twenty years from July 17, 1876. (4) The Canal Commissioners again assumed to renew it to The Economy Light & Power Co. (defendant here), as assignee, October 3, 1896, for twenty years from July 17, 1896. 47 1). The Slate inainlains: (1) That tlie lease was void ab initio. The Trustees had no power to make a lease to l)egin in fnturo. Rutz Y. Kheu, Ud 111., 558, at 557-8. 2 Sugden on Powers (3d Am. Ed. from 7tli London), 310, 34G Oil. 18, Sec. 10, 8th London Ed., 749, and eases there cited. A fortiori this is so of the purported renewals to begin in futnro . — Id. (2) There was no assignment to Hyde. (3) With the termination of the trust the powers of the Canal Trustees ceased. (4) The Act of the Canal Commissioners in 1876 in granting a purported renewal to Hyde was in reality a new lease in violation of the statute of 1874. (R. S., Ch. 19, Sec. 8, Cl. 6) — limiting such leases to ten years and requiring letting to highest bidder after ad- vertisement. (5) Their act in granting a purported renewal to the defendant here in 1896 was in violation of the same Act of 1874, as amended June 19, 1891, wliidi also limited water-])ower leases to ten years, and required letting to highest bidder after advertisement. (6) Both purported ‘L'enewals” were really new leases and were subject to the reserved power of the State to resume. R. S. 1874, Ch. 19, Sec. 8, Cl. 6. (7) The lease could not he renewed after it had expired. (8) The Trustees could not bind the State by donating rights to enter into new contracts after the trust had expired. An inchoate right to contract with an agency of the State in the future is not itself a contract conferring a vested right under the constitution. Galveston, etc., Ry. Co. v. Texas, 170 IT. S., 226. Bank of Commerce v. Tennessee, 163 U. S., 416. Pearsall v. Great Northern Ry. Co., 161 IT. S., 646. The courts have repeatedly held that the Legislature may repeal laws authorizing the donation of such privileges, although invest- 4S iiieiits liave l)een made thereunder, tlie contract not having l)een a(‘tnally (‘arried into effect. City of Chester v. N. C. d W. R. R. Co., 182 III., 382. shiny Ionian Home v. Chicago, 157 Til., 4-14. Aspimvall v. Daviess, 22 How., 364. W adsivorth v. Supervisors, 102 U. S., 534. Norton v. Brownsville, 129 IT. S., 479. Wade V. Walnut, 105 U. S., 1. Concord v. Portsmouth Savings Bank, 92 U. S., 625. Falconer v. Buffalo S J amestown R. R. Co., 69 N. Y., 491. Covington & Lexington R. R. Co. v. Kenton County Courts 12 B. Mon., 144. The Canal Trustees held as trustees not only for the l)ond hold- ers, but also for the State, and acted in the exercise of a govern- mental power, under delegated authority, and as the agency of the State. They had no implied powers. Therefore they had no implied power to grant a right to obtain a contract in fiiiuro after the coinpletion of the trust. Walla Walla v. Walla Walla Water Co., 172 IT. S., 1. Rogers Park Water Co. v. Fergus, 178 111., 571. Ibid., 180 U. S., 624. People, ex. rel., v. Suburban R. R. Co., 178 111., 594, 606-7. Chicago General Ry. Co. v. Chicago City Ry. Co., 62 111. App., 502. Davis & Farnum Mfg. Co.y. Los Angeles, 189 IT. S., 207. Bienville IF. S. Co. v. Mobile, 186 U. S., 212. Wabash R. R. Co. v. Defiance, 167 U. S., 88. Hunt V. Chicago II. S D. Ry. Co., 121 111., 646. This rule was applied by Judges Grosscup and Jenkins, limiting the grants of franchises by the City of Chicago to traction com- panies of the city to a period of twenty years, in so far as the streets had not been specifically designated and work done there- under prior to the re-incorporation of the city under the general incorporation act which limited such grants to twenty years, in the year 1875. Govin V. City of Chicago, 132 Fed. Bep. et seq., 848, 853. In Wair v' CMca()o, 201 IJ. S., 400, 472)4, llie Snprnnin (.V)urt, re. 810). An Act incorpo- rating the Marseilles Ijand and Water Ibiwer Coni])any, re- serving the right to take ])Ossession of the dam for ])ur- poses of navigation. 1869— Act of March 27 (P. L. 1869, Vol. IV, )). 498), amended the foregoing by ])i'oviding for com})ensation. 1861 — Joint Kesolntion (L. 1861, i)p. 277-8) commanded the Tiais- tees of the canal to survey the Des Plaines and Chicago Rivers and portage, for the pnr])ose of impi*oving the navi- gation of the Illinois “liy o})ening a channel from Lake Michigan by way of the South Branch of the Chicago JLver and ]\lud Lake to the Des Plaines River, etc.” 1865 — February 16, An Act for the com])letion of the canal on the Deep Cut plan. (L. 1865, p. 83; Canal Comp., ]). 135.) 1867 — ^February 28, River Improvement Act, authorized the Canal Commissioners “to make changes Lido})ting’ the river im- ])rovement instead of the canal between CJiicago and La- Salle, as may be deemed expedient.” (L. 1867, }). 81.) 1871 — ()(‘t()])er 20, A(‘t taking oven* tlie Chicago Deep Cut, made under Aet of Fel)ruary 10, 1805. (L. 1871, p. 170; Canal Conp)., p. 149.) 1879 — Joint l^esolution (1 j. 1879, p. 521-2) proposing the cession of tlie canal to tlie Federal Government. 1881 — Joint Resolution (L. 1881, pp. 159, 101) for improving the I'iver and canal, finding that prior to the Deep Cut of 1805- 1871 ‘Ghe water necessary for all purposes of navigating the said canal and i:>ropelling of machinery was obtained from the Des Plaines River and the Calumet Feeder,” and that ^Ghe bed of the Des Plaines River will average a sup- p]y of water sufficient for all canal and power purposes during the seasons of navigation;” and providing for ^ hsluice-ways of sufficient capacity with the proper guard gates to he opened from the Des Plaines to the canal.” 1881 — Joint Resolution, concerning the Kankakee River Improve- ment Company (L. 1881, p. 163), commanding proceedings by attorney general. The charter of that company was abrogated pursuant thereto. People V. Kankakee Piver ImproveaKnt Co., 103 111., 491. ‘GA river does not become a canal from having its navi- gation improved by artificial means.” 103 111., 511. 1882 — April 28, Act ceding the I. & M. Canal to the United States, subject to the referendum. (L. 1882, p. 12.) 1883 — Joint Resolution directing the Canal Commissioners to take half the water-power from the Adam Dam of Joliet. (L. 1883, p. 184.) 1887 — Act of June 6, organizing Chicago into a drainage district; precursor of Act of 1889, organizing the Sanitary District of Chicago (L. 1887, p. 126), provided for cut-offs and ditches to divert the flood waters of the Des Plaines into Lake Michigan. 1889 — May 28, the Legislature passed a Navigation Resolution, and 51 the Act c'.reate sanitary distric'ts and r(‘iriov(; ol)stnK'- tions from the Des Plaines and Illinois Pivan-s.” Tlnisc; were passed on tlie same day and are (‘onstriKal as one (m- actment. (Joint Itesolution L. 1889, p]). o75-7().) After the preamble, giving valuable summary of pre- vious histoi*}”, the Legislature resolved that: ^‘Whereas, The present addition to the low water volume of the Illinois River through the Summit level of the Illinois and Michigan Canal from Lake Michi- gan more than doubles the volume of water used in the estimate of 1868 ; * * * And Whereas, It is contemplated to increase the volume from Lake Michigan 300,000 cubic feet per minute in a few years, and ultimately to add 600,000 cubic feet or more, thus enabling a large depth for navigation to be obtained; * * * And Whereas, Works now projected by the City of Chicago will form part of a water-way of large pro- ])ortions, from Lake Michigan via the Des Plaines and Illinois Rivers to the Mississippi River, * * * Therefore, Be It Resolved — L Tliat it is the ])olicy of the State of Illinois to ])rocure the construction of a water-way of the great- est practicable depth and nsefnlness for navigation, from Lake Michigan via the Des Plaines and Illinois Rivers to the Mississippi River.” 'Concurrent with this, the Sanitary District Act was passed on the same day. (L. 1889, pp. 133-137.) Special attention is called to Sections 7, 20, 23, 24 and 27, providing for a navigable channel connecting the Chi- cago River with the Des Idaines River, which has been done. 1895 — August 2, Joint Resolution urging harbor improvement on lake shore of Lake Michigan. (L. of 1895, Extra Session, p. II.) 1895 — June 10, Amendment to Sanitary District Act, re(piiring a flow of 20,000 cubic feet of water for each 100,000 people. 1897 — Act of May 13, to amend Sanitary District Act, so as to re([uire movable bridges. 11)01 — Act of May 13, enabling the District improve certain }Kivl()(d)le. streiuiis, within, or auxiliary to sucli (listri(‘ts, and to build ])ridges across such streams.” The i)lural noun “certain navigable streams within the ‘ District” can apply to two streams only, viz., the Des Plaines and the Chicago Divers. The use of the plural noun recpiires application to both of the streams, as they are the only two in the District. 1903 — Act of May 14, An Act in relation to the Sanitary District of Chicago (recognizing the District of Chicago by name), enlarging the corp>orate limits of the District and pro- viding for navigation in its channels, and for closing up portions of the I. & M. Canal, after providing substitute channel. (L. of 1903, pp. 115-117.) 1907 — Act amendatory of the statutes of the Sanitary District of • Chicago of Febrnar}^ 27 and May 25, renewing the pro- vision for movable bridges (Section 19), “regulating the reliability of the Sanitary District for damages by reason of the use of any channel outlet or other improvement.” (L. of 1907, pp. 284, 287.) 1907 — October 16, The Deep Water Way Eesolution, submitting a constitutional amendment, which was adopted at the elec- tion of November 3, 1908. (L. of 1907-8, Adjourned Session, pp. 102-3.) 1907 — October 15 and 16 — Eesolution creating the Deep AVater Way Committee. (L. of 1907-8, pp. 102-4.) 1907 — November 27, Eesolution demanding the removal of the de- fendant’s dam and the cancellation of the Canal Commis- sioners’ contracts therefor. (L. of 1907-8, Adjourned Session, pp. 101-2.) 1907 — December 6, “An Act recogmizing the Des Plaines and Illi- nois Eivers as navigable streams, and to prevent obstruc- tions being placed therein and remove obstructions there- in now existing. (L. of 1897-8, Adjourned Session, pp. 32-33.) TV. THE LLINOTS AND MICIIKJAN CANAE AS A FACTOR TOUCiriNG THE NAVI- GATION OF TliE DES PLAINPIS RIVER. The relation of the two streams to each other and tlie legislation thereon, and data from the Government Reports thereon, are as- sembled lierennder in tlie argument. Paralleling the ITes Plaines by means of the canal did not de- stroy the navigability of the Des Plaines, although it depleted its water supply. V. SUMMARY OF CANAU HISTORY. Canal Commissioners’ Report of 1900 (Abst., p. 1855). 7 U. S. Statutes at Large, pp. 146-147. Report of Illinois Internal Improvement Commission, 1907 (Abst., p. 921). Early ideas as to route and length of Canal. Schoolcraft’s ‘‘Travels in the Mississi})])i Valley.” (Abst., p. 1058.) Location and route of canal. VI. DEPTHS, SLOPES AND PHYSICAL CONDITIONS OF OTHER STREAMS AS STAND- ARDS OF COMPARISON. Mississippi River — Rock Island Rapids. Testimony of W. R. Tibbals (pilot and Government inspector). (Abst., p. 684.) Testimony of Samuel R. Van Sant (pilot, boat builder, president of transportation company. Governor of Minnesota). (Abst., ])p. 856, 861, 865.) United States Survey of, by Lieutenant Robert E. Lee (IT. S. Engineer, 1887). U. S. Eng. Rep., 1886, Vol. Ill, pp. 1486-7. (Abst., pp. 1615-1617.) Hock IsUnu/ Hojjic/s. United States Siu*vev of, l)y Lieutenant (i. 1\. \Vari*en (U. S. Lngineer, afterwards (tenei'a! Wari-en of tlie Army of tlie Po- toina('). (U. S. Lngr. llei)., 188(5, Vol. Ill, ])p. 14d8-9. (Abst., p. 170:1.) Lock Island Rapids, Survey of, by (kiptain P. U. Ilains, 18(50. U. S. Lng-. Re])., 188(5, Vol. Ill, ])p. Iddldk (Al)st., p. 1705.) Rock Island Rapids, Survey of, by Major A. A. MeKenzie (now Chief of Lngineei-s.) (11)., p. 1401.) (Abst., ]). 1017.) SUMMARY OF THE PHYSICAL CONDITIONS OF THE ROCK ISLu4ND RAPIDS IN THE MISSISSIPPI RIVER. The net result of this comparison is, that the Mississippi, though half a mile wide at this point, had a channel averaging about 200 feet wide, in the lower part never exceeding 180 feet (III Eng. Rep., 1880, p. 1450), and ^Uit the lower end is abruptly narrowed with an increase of surface velocity’’ (Ih.), ‘‘probably 140 feet — down in low water you couldn’t get that through — not over 50 feet” (Vhistler, Abst., p. 1155) ; “the largest is not more than from 00 to 70 feet wide (Ib., p. 1401) ; that this channel extended through these rapids for a distance of 14 miles and was crossed by numer- ous reefs which “at some i^oints extended entirely across the channel, and projecting at others from opposite sides formed a winding, difficult and dangerous passage,” with “short turns and narrow passes between the reefs” (Report of Robt. E. Lee, Abst., p. 1010), “leaving a narrow, tortuous channel between them and in some instances extending like a dam or rocky bar entirely across the river” (Report or C’apt. P. C. Ilains, Abst., 1705); that there were seven principal chains of reefs in this 14 miles (Report of Capt. P. C. Ilains, Abst., p. 1705), “leaving only a lyn'row and crooked water Avay” with “strong cross-currents” (Report of Caj)t. C. P. Hains, Abst., p. 1700) ; that the channel was studded with islands which at the central portion of the “St. Louis Cabin Passage” “form three passages, of which at low water the largest is not more than 00 to 70 feet wide” (III Eng. Rep., 1880, p. 1401) ; that the bed through and over which this cliaimel ran consisted of “liard surface of liuiesioiie rock” (K^'poi-i of (-apt. Ik (k I la, ins, iVbst., ]). 1705). '^riiere Avere l)oul(lers in liu' stream; but iii some cas(‘s, as ut (k-nupbell’s chain, these Iari>'e boulders projecting- u})ove the sur- face of the water “did not present serious ol)structioiis.” but “ratlier served as guide marks for pilots” (Re])ort of (kii)t. Ik (k Haiiis, 1880, Abst., p. 1705). That in this distance of “about 14 miles” the river fell 21.40 feet, ^^or an average fall of 1.53 feet per mile;” that the fall was concentrated at the reefs, between which were pools (Report of Gen. G. K. Warren, Abst., p. 1704) ; that in the ordinary depth of water this channel was available for boats drawing 12 inches to 34 feet (Tibbals, Abst., p. 035) ; that the low water was impassable for boats drawing 2 feet; that “when the river was open for navi- gation (200 days, 8 2-3 months) about one-third of the whole time (87 days, i. e., 3 months) it is rendered dangerous by the shoalness of the water on the rapids, and sometimes impassable for boats drawing more than 2 feet (Rep. of Capt. P. C. Hains, Abst., j). 1707) ; that every year of low water several boats were sunk and others seriously injured in attempting the passage; that light draft boats, like the “Phil Scheckel,” drawing 15 inches, the ‘‘Black Hawk,” drawing 10 inches, the “Silas Wright,” drawing 12 to 10 inches and the “Enterprise,” drawing 10 inclies, were relied on for navigation during low Avatei-; and in 1804 even those boats “couldn’t run at all” (Governor Van Sant, Abst., p. 859) ; that 14 inches was the lowest Avater they got through on, and profitable commercial navigation was in fact carried on over 14 inches of Avater (Tibl)als, Abst., pp. 035-030) ; that the current through this reach varied from 3 miles an hour in the stiller pools to 0, 9, 10 and 11 miles an hour (Mason, Abst., ])p. 1219-1220); that in getting through tliese swifter reaches it was customary to “double-tri])” it, i. e., take ii]) half the load and then go back for the other half; to “wai'])” 01 * “cordelle” the boat up by ])utting out ahead an anchor Avith a cable and Aviiid u}) the cable by a capstan operated by steam (Tibbals, Abst., }). 030) ; that afterwards a s])ecial set of l)oats and ])ilots Avei'e leri)endicular fall of about two feet. Both of these two last mentioned are surmounted with loaded boats. “At La Grande Chute there is a perpendicular fall of about four 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 in- considerable rapids which are surmounted without much dif- ficulty or delay. “The Fox Fiver thence to the portage has always a strong cun'ent and is often entirely overgrown witli gi'ass and wild rice, l)nt prc'sents no otliei* ini])edinients. (lie)), of Maj. Long, U. S. Kng. 1S7(), Pt. II, ]). 2()().) (Al)st., }). 1()25.) Wisconsin River. ‘‘The (Wisconsin) river is full of islands, formed b}" the sand bars, which are constantly increasing in number. The gen- eral 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 resistence.” (Ibid., ])p. 2()()-7.) (Abst., p. Kidl.) Survey of Fox Iviver by Captain Cram, 1848: “Captain Cram, in his measurements of the fall on the rai)ids of the Lower Fox necessary to be overcome by dams and locks, n'os considerably under the marl\ and he does not enumerate among the list of rapids the Cedar Kapid just above Little Chute, or else includes them both in one. For (‘onvenience of reference in the report of operations follow- ing, 1 will give now a correct list of the several rapids, with their distance apart, and the fall at each as it was ascertained at the time of the examination made by Major Suter in 1866. “List of rapids on Loiver Fox River ^ with amount of fall and distances apart between liead of each. Distance Fall. Apart. Name. Feet. .Miles. Depere . 8 0 Little Kaukana (or Kakalin) , 8 6 Papids Croche 8 6 Grand Kaukana . 50 44 Little Chute ' . '38 01 Cedar Eapid . 10 of Grand Chute . 38 4 IVinnebago Kapid . 10 Green Bay to Lake AVinnebago (Ibid., p. 212.) (Abst., p. 1626.) ... 170 28” A series of elaborate works for improving the navigation over this stream were conducted, first by i^rivate enterprise, then l)y the State of IVisconsin, and then l)y the National Government. These are described in U. S. Eng. Eep., 1876, Pt. IT, pp. 213-297. (Abst., p. 1683.) Acting- State ('Oininissioner William Ivielnu-dson i-(‘})ort(Ml Jan- uary ], 1853: ‘M have had seven dams erected and two are now in course of erection.” (lb., }). 317.) General W^arren reports to the Federal Governnient the erection of several additional dams and locks in 1855-6, and of proposed ex- l^enditnres in 1867 of $118,400.00 to give a 4-foot channel and $403,- 370.00 to give a 6-foot^channel. (lb., p. 239.) (Ahst., p. 1633.) The Fox Elver in its natural condition was a navigable stream. The Montello, 11 W'alh, 411; s. c. on second appenl, 20 Wall., 430. The court here narrate something of the difficulties in navigat- ing the Fox Eiver, its portages, its rapids and cascades, its use by Joliet and Marquette, its use m the fur trade, its protection by the Ordinance of 1787, and hold that in spite of all its difficulties, which far surpass those of the Des Plaines, the Fox River was in a state of nature a navigable stream. The Ohio liwer and the Rapids of the Ohio. (1766-1778, 1797) Description of the rapids of the Ohio River by U. S. Surveyor General Thomas Hutchins: ^‘Fall estimated to he fifteen feet in one mile. Three-fourths of the bed of the river * * * filled with a //u7 limestone rock, so that in a dry season there is seldom more than six or eight inches of irater.’’ ‘‘Large broken rocks a few inches under water.” “Several boats passed it in the dryest season of the year un- loading one-third of their freight. * * *” Imlay’s Topographical Description of the AVestern Ten-i- tory of North America, pp. 489-90. (Ahst., p. 727.) General Hutchins (piotes Oolonel Gordon as saying: “They ])assed on the north side where the carrying-])lace is three- (piarters of a mile long. On the southeast side it is about half that distance, and is reckoned the safest ])assage for those who ai*e un- ac(]uainted with it; hnt it is the most tedious, as, during part of GO ili(‘ siiininer and Tall the hattcnuix-nien drag their boats over the flat rock. The fall is about half a mile rapid water, which, however, is passable t)y wading and dragging tlie boat against the stream, when lowest. * * Evidence of Cooley: The Pittsburgh coal fleet has been locked up for as many as five months waiting for a rise. (Abst., p. 799.) The Ohio Piver and its tributaries, by the census of 1890, carried traffic amounting in ton-miles to 5 per cent of the total railroad traffic of the United States. (Uv. of Cooley.) (Abst., p. 800.) ^ AVt low stages all of the Ohio Biver boats and a large part of the others are withdrawn and replaced with lighter draft-boats.” (Ex. Doc. 2G4, 51st Congress, 1st Session.) (Abst., p. 800.) Beport of U. S. Engineers, 1882, Vol. II, pages 1881-3, by Major Godfrey Weitzel, describes the rapids as having a fall of 26 feet in 2 2-3 miles, in low water, and about 18 inches fall in the highest I stages of w^ater. (That is, the flood water drowned out all but 18 inches of the fall.) At extreme low stages about one-half of its total fall, that is, i3 feet, occurred in the first 1,253 yards.” (Abst., p. 1620.) “The length of this channel (middle chute), is about 3,800 yards, or 21 miles long, and about 22 feet, or almost the entire fall, is in tlie last 500 yards.” (Abst., p. 1620.) In low water, the boats on the Ohio Biver are compelled to run upon a foot of water. They do not have more. The big boats lie up and the little steamboats come down from the smaller streams to navigate the Ohio. They will draw 5 or 6 inches and carry 8 or 10 tons. Since the improvement of the Ohio, it does not get that low. (Evi- dence of Capt. Wm. H. Bing.) (Abst., pp. 663-664.) In the Kentucky Chute, “almost the entire falls is in the last 185 yards.” (Abst., p. 1620.) “The observations which were made and recorded, established ihe fact that on an average the falls were not navigable ten and a half months per annum.” (Abst., 1620.) r,] Proposals for tlio Ohio River h(‘^>an with Surv(‘yor Ilntchins in 1778. (See liis map.) Oaiial eom])anies were eliartered !)y Kent in 1825 and the tii'st eanal opened in 1850. Cost over 81,000,000. Government surveys were made in 1845, 1845 and 1855, under government eanal i)ro- posed in 1859-60. Further government survey in 1867. Fxtensive government improvements made in 1881-1882. Navigation of the Ohio River described by Capt. Bing: l)e])th of channel in low water, 12 indies; high water, 71 feet. (A])st., p. 665.) Ohio Tributaries: — Green River, 200 miles long, 120 feet wide, 6 locks and dams, total lift, 85 feet. Navigable with locks and dams 2 to 5 months in the year. (Evidence of Bewley.) (Abst., pp. 1015-1019.) Barren River, 100 feet wide. Dam 15 feet high. Gives depth 4-1 feet. Have to spar over said bars. (Abst., p. 1018.) The Kentucky River. The Kentucky River, navigated with 11 locks and dams, 210 miles, was navigaihe without locks and dams about six months in the year. Low water depth, 18 inches. It is no risk to go over a drop of a foot in 400. (15 feet to the mile.) (Evidence of Pryor, witness for the defense.) (Trans., ]). 5591.) (Abst., i)p. 1026- 1027.) U. S. Eng. Re^). 1887, Vol. Ilf, pages 1871-1894, show current 15.5 miles an liour in the Kentucky at the Beattyville dam, and a mul- titude of adverse witnesses declare the Kentucky to he naviga])le only 6 months in the year. The Kanawha River. Before improvement by the United States, the low water dei)th went below 15 inches every year. Have seen it 10 and 12 inches, and from that up to 5 feet low water, 6 feet high water. We navi- gated 5 months in the year. Carried light freight on 12 inches ; ('tiri'ied 100 tons on 0 foot. It liad a great many elmtes with cur- rent of 8 to 10 miles an liour tliat we navigated ])y warping and cor- delling with boat lialf loaded. (Evidence of Bing.) (Abst., p. Olid.) The Cumberland River. The Harbor Shoals have a fall of over 8 feet in a mile. (Evi- dence of HcCnllougli, ex})ert for defense.) (Abst., p. 1177.) U. S. Eng. Kep., Part V, App. W. W., p. 3215 : Plan for 7 locks and dams in Cumberland at a cost of $2,000,000. U. S. Eng. Hep. 1887, Vol. Ill, pp. 1758-1779: Heports of elab- orate improvements on the Cumberland; also of the Ohio, Alleg- heny, Kanawha, Big Sandy, Wabash and Kentucky Rivers (pp. 1781-1891). The Tennessee Riv'er. U. S. Eng. Rep. for 1872, pp. 195, 197, 512, 511, giving list of five shoals with a fall of 131.2 feet in 38.5 miles (nearly 3.5 feet to the mile), and showing at Big Muscle Shoals a fall of 82.1 feet in 11.1 miles, and at Little Muscle Shoals a fall of 22 feet in 5.35 miles. (The fall in the Des Plaines was 39.5 feet in 16 miles, or nearly 2.5 feet to the mile.) (Low water depth of the Tennessee 12 to 20 inches and in the Alabama Division 10 to 20 inches.) Testimony concerning the Tennessee was given by Mr. Cooley and Mr. John M. Sweeney for the State, and by Experts John Mc- Caifrey, McCullough and Mason for the defense. The Missouri River. Evidence of Lyman E. Cooley describing work on the Missouri River from 1878 to 1891: ‘‘General current 5 to 7 miles an hour; fiood current 8 miles an hour.” “IVe navigated through this.” • (Abst., p. 795.) f;:; Tlsual dojiili in low wnlor w^as to .‘) f(‘ot. SoiiKdimos 15 to 20 iiiclios. (A])st., ]). 795.) Narrow cliannels in low water were from 100 feet to 100 yards wide. In high water 11 miles wide. (.Vhst., p|). 795-790.) Low water channel of Missouri around through the sandy hed was extremely sinuous. (Ahst., p. 796.) The large boats would run on 12 to 14 inches, light, and from 4 to 51 feet, loaded. (Abst., p. 797.) Currents on the Upper Missouri 8 to 10 miles an hour. Steam- boats had to warp over them. (Abst., p. 798.) Defendant’s witnesses, AVoerman (Abst., p. 1429) and Johnson testified to use of the Missouri. U. S. Eng. Uep. 1883, AMI. II, pp. 1340-45. (Abst., p. 1189.) U. S. Eng. Kep. 1878, part 7, p. 696. (Abst., p. 1192.) Dauphin’s Eapids, between Benton and Carroll: Fall for 3,200 feet is at rate of 8.9 feet per mile. For 1,000 feet is at rate of 11.42 feet per mile. List of 24 rapids, with submerged bars, snags, rocks and boul- ders. (Abst., p. 1193.) Fall at Cow Island for 6,000 feet is at the rate of 5.16 feet per mile. (Abst., p. 1196.) The Gasconade River. The Gasconade was a tributary of the Missouri Elver with from 12 to 18 inches of water. A steamer 100 feet long, 14 feet wide and drawing 10 to 12 inches of water I'an up it,carrying 50 to 60 tons. (Ev. of Cooley, Abst., p. 798.) (Thomas T. Johnston, expert evi- dence for defense. The Allegheny River. Mason, for the defense, testified that there were no locks or dams in the Allegheny. (C. F., 2982.) (Abst., p. 1220.) U. S. Eng. Eep. 1895, pp. 2410-12, gives map and profile of Al- i’A le^'lieiiy, showing’ a fall of oO feel in 'M) miles taken ii}) by six locks and six dams. (Ahst., ]). Idol.) The Sangamon Ewer. l^eck’s Gazetteer of Illinois in 1884, pp. 826, 828, 258: Tlie Sangamon was declared a navigable stream by Act ap- proved December 26, 1822. (L. 1822-8, p. 81.) Improvement by navigation antborized by Act apiiroved March 1, 1838. (L. 1833, p. 126.) These Aids were enforced and held proof of navigability in Clark V. Lake, 1 Scam., 329 (1835). Columbia and Snake Ewers. U. S. Eng. Hep. 1875, Part II, App. GG-2, p. 772-779. (Abst., pp. 1199-1202.) U. S. Eng. Eep. 1891, Part V, App. AVW-8, p. 3210. (Abst., pp 1197-1198.)* 3210 et seq., containing following list of rapids: (We have consolidated here, the ‘‘List of the principal rapids between Celilo and Lewiston, with such physical data as to fall and slopes as are obtainable from the records of this office,” in the Keport for 1891, with another list in the K.eport for 1875, and tes- timony thereon by the witness Gray.) is x: x: o ^ ^ ^ ^ o 1) a> a d G d *-< [S (D fl oS ^ J2 X! ^ H o) xi sj-§ O ^ ^ C 00 t=^ T3 :3 Tt< 2 o CO CO CO O) d^ ix a o 2 ^12 :3 o -D S o3 o| O) O,'^ OJ . 13 ^00 ^ 2 ■s-2 Cg +3 CO w to O oj iz O t-> CO 3 »-H O OJ _Q 1- §3 OJ 33 o S ^3-5 rH 13 t-> .0 C2 OJ bC ccj ^ 013 ^ .2 0*^ H +3 CO 03 «*H O ^H 13 cO 3.S t- crS o o3 0) g -O > o -^^ 03-5 < : 1 i ^ 03 03 ch-i CD (-< c GO LO cq>/i o§o P S % CO 3 ‘Sh ci Ph I 23 L |m g :=i . . -M -t-3 ^ CO 3h3 ^ CO g 3 -P* Dh CO aj -»-< tH c3 O T3 ^ tH -Q o >3 73 Ch • co’ ■X3 73 •fH ^ O is 0) fi 3 -S s s >>§ S 2 >< ^ > Oj Q Xi ^ S bfi 2 3 rH g g O C3 . 3^ a io 03 3 03 .S i § ^ C30 <30 tH .33 ^ 03 h.^ho: X 03, O I O; CO 3 03 ^ 03 c3 ^ 03 00 o C3 O'- 03 00 -' 20 • ■ c/2 03 . (M ;:d O '3/2 I CO c/y 3 I lO t^ - 3c/i Oh o3 3 ‘o- o3 P^ .3 ‘Oh c3 Ph o 03 £ £ o 1 ^ 1 >o 00 7) -> ?H O) is o _ ' ‘O c3 ti '" 2 OC/2 "5 *■' ' o '^1-' ^.2 S .""G c3 ‘^.o3 2 'O ‘a 03 p:3 Chelan Rapids G7 VII. THE LAW OF NAVIGABLE STREAMS. I. THE LEGAL DEFINITION OF A NAVIGABLE STREAM. A NAVIGABLE STREAM IS A STREAM HAVING SUFFICIENT DEPTH OF WATER TO AFFORD A CHANNEL FOR USEFUL COMMERCE. 1. THIS IS THE LAW OF ILLINOIS. Schulte V. Warren, 218 111., 108. People V. Board of Supervisors, 122 111. App., 40. People V. City of St. Louis, 5 Gilm., 251. Joliet, etc., R. Co. v. Healy, 94 111., 416; affirmed 116 U. S., 191. ‘^commerce” is not confined TO THE TRANSPORTATION OF FREIGHT. TRAVEL BY PERSONS, AND THE TRANSPORTATION OF PERSONS BY BOATS, IS COMMERCE. Gibbons v. Ogden, 9 Wheat., 1, at 215-17. Passenger Cases, 7 How., 286, at 401, per McLean, J., Mc- Kinley, J. ; concurred ; at 421 and 431, per Wayne, J. ; at 446-7, per 'Catron, J. ; at 462-3, per Grier, J. Taney, C. J., Daniel and Woodbury, JJ., filed elab- orate dissenting opinions. Nelson, J., concurred with Taney^ C. j. By 5 to 4 the (piestion was settled for all time; and the line of division was the same as that in the cases on the Ordi- nance of 1787. Commerce is intercourse. It includes the intercourse and all the initiatory and intervening acts, instrumentalities, dealings, means and appliances. It is human intercourse in the largest sense. Per Marshall, C. J., 9 Wheaton, 211 ; per Johnson, J., id., 229-30. Brennan v. City of Titusville, 153 U. S., 289. Hall V. Be Cuir, 95 U. S., 485, 491. McNaughton v. McGirl (20 Mont., 124, 49 Pac. Pep., 651- 3), 38 L. P. A., 367. The early travel on the Des Plaines River ivas commerce. The ILLINOIS law on this subject has undergone a change. The eart.y (wses adopted the tide- water test. 1842 Middleton v. Pritchard. , 3 Seam., 510. 1868 Ensniinger v. People e. X red. City of 'airo, 47 111., 384. 1 872 Rraxon v. Bressler, 64 111., 488. 1876 Ilouck V. Yates, 81 111., 179. 1887 Trustees of Schools v. k lehr oil, ^20 111., 509 (Ha If way case), 1887 St. Louis Bridge Co. v. East St. Louis, 121 111., 238 (Half- way ease). B. The tide- water test was tacitly disregarded, but no new test FORM.VLLY’ SUBSTITUTED IN THE FOLLOWING CASES I 1865 Illinois River Packet Co. v. Peoria Bridge Ass’n., 38 111., -^67. 1868 City of Chicago v. La ft in, 49 111., 177. 1869 (tity of Chicago v. McGinn, 51 111., 66, 72. 1869 Chicago S Pacific N. Co. v. Stein, 75 111., 41. 1881 Washington Ice Co. v. Shortall, 101 111., 46, 52. 1893 City of Chicago v. Law, 144 111., 569, 576. C. THE NEW TEST OF NAVIGABILITY^ IN FACT IS EXPRESSLY" LAID DOWN IN THE FOLLOWING CASES: 1848 People v. St. Louis, 10 111. (5 Gilm.), 351, 368, 373. 1879 Joliet, etc., R. Co. v. Healy, 94 111., 416; affirmed 116 U. S., 191. 1891 TAgare v. Chi. M. S N. R. Co., 139 111., 46; s. c. 166 111., 249. 1905 People \. Board of Supervisors, 122 111. App., 40. 1905 Schulte v. Warren, 218 111., 108. The dictum in Iluhhard v. I)cll, 54 111., 110, examinki). That was by Bkkese, J., and was infliiciK'ed by Ills eaiTiei- tid(^- water decisions, and was uncalled for, and erroneous. There (a) the bill did not waive oath; (b) tlie answer denying navigability was sworn to; (c) there was no replication; and (d) there were no proofs. The case is a case on pleadings, and ‘‘the pleadings establish the fact that Big Creek was not a navigable stream.” The case was one of pleading purely, and the rules of pleading required tlie dismissal. Daniel, Ch. Pr., 5 Ed., "^834. Pankey v. Raurn, 51 111., 88, 91. D’Wolf V. Long, 2 Gilm., 679. Mason v. McGirr, 28 111., 322. The English law on the question of public right, which Beeese, J., intended to follow, is just the reverse, — that the tide-water test was not even the English common law; and that streams float able one way were public highways. Grant v. Gordon, Mor. Die., 12,822; L. B. 2 App. Cas., 872; 1 Farnham, 115. Sir Matthew Hale, de Jure Marls, Ch. 1, 2. Quoted by Dickey, J., in Parher v. People, 111 111., 581. 2. Legal definitions and principles generally, as to navigability. The tide-water test is now universally rejected and navigability in fact nniversally accepted in the United States. Genesee Chief v. Fitzhugh, 12 How. (53 U. S.,) 443. Overrnling : The Thomas Jefferson, 10 Wheat., 428; 'The Orleans , — 11 Peters, 175. Barney v. Keokuk, 94 U. S., 324 (1876 — Miss. River). An action of ejectment. Plea, title in defendant. 70 Uvld that ])laiiiti ft owned tlie fee, hut subject to the easement of ])u))li(* use. I )y the court : “Tlie confusion of navigable witli tide-water, found in the nionuinents of the comnion law, long ])revailed in this country, notwithstanding the broad difterences existing between the ex- tent and topography of the British Island and that of the American continent. It had the influence for two generations of excluding the admiralty jurisdiction from our great rivers and inland seas; and under the like influence it laid the founda- tion in many States of doctrines with regard to the ownership of the soil in navigable waters above tide-water at variance with sound principles of public policy. Whether, as rules of property, it would now be safe to change these doctrines where they have been applied, as before remarked, is for the several states themselves to determine. If they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objec- tions. ’ ’ The civil law is in reality the source of our present rule. Ten Eijck v. Town of Warwick, 75 Hun, 562. Ingraham v. Wilkinson, 41 Mass. (4 Pick.), 268. Stuart V. Clark’s Lessee, 32 Tenn., 9. A stream which can he used is navigable. Commonwealth v. Vincent, 108 Mass., 441. If it can be used at certain seasons by barges, it is navigable. Bucki V. Cone, 25 Fla., 1. Broadnax v. Baker, 94 N. Car., 675. MTiere streams are of sufficient depth naturally for valuable navigation by flatboats and small vessels, of light draft, — the public has the right to a free enjoyment of the streams for the purpose of navigation to which it is naturally adapted. Webster v. Harris (Tenn.), 59 L. K. A., 324. Goodwill V. Police Jury, 38 La. Ann., 752, 772. Tuscaloosa County v. Foster, 132 Ala., 392. State V. Baum, 128 N. Car., 600. Pecuniary profit is not an essential of navigability. Lamprey v. State, 52 Minn., 181; 18 L. K. A., 670. Attorney Genercd v. Woods, 108 Mass., 436. 71 .Vll waters prac'tieally available for floating' e.onirnca-ee by any method are iiavii>'able, as the servitude of* ])u})lic interests d(i[)ends rattier on the piii'})ose for wtiieti the putilie reipiires ttie use than any jiartieular mode of use. Moore v. Sanborne, 2 Mich., 519. II. REMOVABLE DIFEICULTIES AND PARTIAL LIMITATIONS DO NOT CONTROL NAVIGABILITY. 1. THE EXISTENCE OF OBSTRUCTIONS AND INTERRUPTIONS IS NOT CON- TROLLING. The Montello, 20 Walt., 430. St. Anthony Water Power Co. v. Water Commissioners, 108 U. S., 349. State Reservation at Niagara Falls, 37 Him, 537, 547 (af- firmed 102 N. Y., 734). Broadnax v. Baker (Hoanoke lliver), 94 N. Car., 675. Attorney General v. Harrison, 12 Grants Ch. (U. C.), 466. Goodwill V. Police Jury, 38 La. Ann., 752. Inhabitants of Charleston v. Middlesex County Comers., 44 Mass. (3 Mete.), 202. State V. Bell, 5 Port. (Ala.), 365. So the existence of artificial obstructions, such as dams, bridges and fences, does not deprive tlie stream of its character, nor tlie pu])lic of its right. Clark V. Lake, 1 Scam.,, 229. West Chi. St. R. Co. v. People, 214 111., 9; affirmed 201 U. S., 506. (In harmony with this see valuable compendiinn of law on relation to Federal and State Governments to water-power dams, by the U. S. Senate Committee on Commerce, Congressional Pec- ord, April 30, 1908, ])p. 5664-5667. The committee find that ‘Ghe Federal Government has nothing to sell and therefore has no moral or legal ground to demand compensation.” That is the province of the States. Tlio Federal license (1) autliorizes the Federal Government to control the work; and (2) establishes the fact that the dam luill not affect the navigahilitii of the stream. Kansas v. Colorado, 20d IT. S., 4(). U. S. V. Itio (irande Co., 174 U. S., ()90.) 2. The stream need not be navigable in its entirety. Schulte V. Warren, 218 111., 108, 120. Town of Hempstead v. City of New York, 52 X. Y. App. Div., 182; 05 X. Y. Sup., 14, 18. Sd. Anthony Falls Water Power Co. v. St. Paul Water Commissioners, 168 U. S., 549. Spooner v. McConnell, 1 McLean (U. S.), 337. Caldwell v. McLaren, L. R., 9 App. Cas., 392, per Black- burn, L. J. 3. Perennial navigability is not essential. It is not necessary that the stream he navigable all the year round. This was early settled in England in the case of tide streams. The contention was advanced that they were not navigable because their beds were left bare by the ebb of the tide for several hours every day but the courts held such streams ‘^navigable and a high- way at all times and at, all states of the tide.” Colchester v. Brook, 7tli Queen’s Div., 339, which is fol- lowed here : Cummins v. Spruance, 4 Harr. (Del.), 315. So interruption by ice in the winter months, it was early settled, did not destroy navigability. And this court put low water in summer, a^nd closure by ice in the winter, on the same footing. Illinois Hirer Packet Co. v. Peoria Bridge Ass’n., 38 111., 467. Capacity for navigation in a period sufficiently regular and con- tinued to make the stream available for travel or commerce is suf- ficient. Walker v. Allen, 72 Ala., 456. Little Bock, etc., B. Co. v. Brooks, 39 Ark., 403. (Bayou Barllioloiiunv hold navigahh' allliou^ii llio annual lirm; ''not very Ihng/’ i- ('•, d wooks, (> inontlis.) Pierpont v. Loveless, 72 N. Y., 21 1. Berh Co. v. Catmvba Liuuher (U)., IKi N. (kir., 721. Soiith V. Fonda, ()4 Miss., 551. Thunder Bay, ete., Co. v. Speechley, 21 Midi., 225. Hogg V. Zanesville Canal Co., 5 Ohio, 410. Shair V. Osivego lee Co., 10 Ore., 271. Hallock V. Siitor, 27 Ore., 9. Gaston v. Maee, 22 Va., 14. Olson V. Merrill, 42 lYis., 203. 4. It is not necessary that it be navigable up-stream, — that IS, AGAINST THE CURRENT. 1 Farnliam on M^aters, sec. 25, p. 121. Angel on Highways, 45. Sigler v. The State, 7 Baxt. (Tenn.), 493. Ten Eyck v. Wanrielx, 75 Him, 562. Farmers’ Cooperative Mfg. Co. v. Alhennarle, etc., B. Co., 117 N. Car., 579; 29 L. R. A., 700. Buffalo Pipe Line Co. v. A. Y., etc., R. Co., 10 Abb. (N. Cas.), 107. Grant v. Gordon, Mor. Die., 12,822; L. R., 2 App. Cas., 872. 5. Actual use is not necessary, capacity for use is sufficient. The Daniel Ball, 10 AVall., 557. Jlickok V. nine, 23 Ohio. St., 522. "Tlie test of navigability is navigable ca])acity, without regard to the character of the craft, the business done, the ease of navigation, etc., * * * stream may be useful for commerce at one time, and vet circumstances may make it so.’^ Attorney General v. City of Fan Claire, 27 Wis., 400: ("The actual navigation may be little, and the obstruc- tion might be slight.’’ Per Ryan, C. J.) Tleytvard v. Farmers’ Min. Co., 42 S. Car., 138. "That the commerce and business on the river local to the county is small or in onr judgment of 'no importance,’ does not change the character of the river,” etc. Stockton V. Poivell, 29 Fla., 1; 15 L. R. A., 42, at 45. 74 (There tlie (luestioii arose on a river more navigable else- ivhere, for the improvement of whieli witliin tlie county, the county proposed to issue bonds.) A stream is navigalhe “if of sufficient capacity to float the pro- ducts of tlie mines, the forests, or the tillaye of the country, through which they float, to marketd^ Jjetvis V. Coffey County, 77 Ala., 190. Sullivan v. Spotstvood, 82 Ala., 163. Webster v. Harris, 69 S. W. (Tenn.), 782. Same is held in: 116 N. Car., 731. 39 Ark., 403. 23 Ohio, 523. 75 Hun., 562, cited supra. Not frequency, hut capacity, is the test. Hickok V. nine, 23 Ohio St., 523. The fact that there is no present use and no present injury, is immaterial. Attorney Gen. v. Smith, 109 Wis., 532. People V. St. Louis, 5 Gilm., 368. Future development of the country must be considered as well as present, or past use. “Evidence of navigability should not be confined to present or past use of the water as a highway of commerce for the transportation of agricultural and other products to market, but the capacity for such use must be considered, and the future development of the country along the shores of the bay, or of new channels of commerce must not be lost sight of, whether a present impiiry may develop the probability of such use or not. Jones V. Johnson, 6 Tex. Civ. Ap., 262. 6. The public eight is x^ot lost by x^ox-usee. No length of time will substantiate the right to exclude the pub- lic from the use of the stream. “No right can be acquired by prescri})tion which will in- terfere with this right of navigation.” 1904 Beidler v. Sanitary District of Chicago, 211 111., 628, at 635. (>) 1ScS4 Parin' v. People, 111 111., 581. 1850 Clip of All oil V. III. Transporlaiio'ii (U)., 12 111., 58. (Mis- sissi])])i llivei*.) 18i;> Annidel v. HleCiilloeli, 10 Mass., 70 ( KeriTiohunk Ilivoi-). 1822 CoiiiiiioiiivealtJi v. Charleston'll, 1 Pick., 180 (Milkirs Piver). 1882 Penn. Canal Co. v. llarris, 101 Penn. St., 80 (Pennsylvania Canal). Burbank v. Fay, 5 Lansing, 397. Attorney Gen. v. Revere Copper Co., 152 Mass., 444; 9 L. P. A., 510. Ogdenshiirg v. Lovejoy, 2 Thompson & C., 83; affirmed, 58 N. Y., 662. V eazie v. Dwinel, 50 Me., 497. Olive V. State, 86 Ala., 88; 4 L. E. A., 33. Aqueduct River Lumber Co. v. Olcott Falls Co., 65 N. H., 290 ; 13 L. K. A., 826. 7. The public right in a navigable watercourse is non-alien- ABLE. West Chicago St. R. R. Co. v. People, 214 111., 9; affirmed, 201 IT. S., 506 (cases of tiinnel under Chicago Eiver). Cox V. State, 3 Blackf. (Ind.), 193; (White Eiver). Prince v. irhs. State L. cb J. Co., 103 AVis., 550; 79 N. AV., 780; 74 Am. St. Ee]L, 904. People ex rel. Attorney General v. Kirk, 162 111., 138. III. Central R. It. Co. v. Illinois, 146 U. S., 381, 453. Conn. River Lumber Co. v. Olcott Falls Co., 65 N. H., 290. And here Canal Trustees v Haven, 5 (lilin., 548, and 11 111., 554, is distinguished. See argument. 8. Statutes declaring streams navigable are competent to DEFINE THE STANDARD OF NAVIGABILITY, AND PRIMA FACIE, ESTABLISH THE PUBLIC CHARACTER OF THE STREAM. Clark V. Jjake, 2 111. (1 Scam.), 229. Coovert v. O'Conner, 8 AVatts., 476. Union Canal Co. v. Landis, 9 AVatts., 228. Horton v. Pace, 9 Tex., 1. Harrison v. Holland, 3 Gratt. (Va.), 247. li' a stream is navigable for y)art of tlie time, it will be regarded as a navigable stream when so declared by the legislature. Staid V. Dibble, 49 N. Car. (4 Jones, 1), 107. Davis V. Jerkins, 50 N. Car. (0 Jones L.), 290. Baker v. Leivis, 38 Pa., dOl ; 75 Am. Decs., 598. Denton V. State, 70 N. Y. Sup., 167; 72 Ap. Div., 248. Cooper V. Hall, 5 Ohio, 320 (The Little Miami). Selrnan v. Wolfe, 27 Tex., 68 (Angelina Eiver). Whit V. Jefcote, 10 Rich. L. (S. Car.), 389 (Pond Branch). Barclay B. S Co. v. Ingham, 36 Pa., 194 (Towanda Creek). The Ijegislature may pass a declaratory Act, which though in- operative in the past, may act in future. P. M. Gen. v. Early, 12 Wheat., 135, 138, per Mabshall, C. J. In applying a declaratory Act, the courts will give them their intended practical operation as far as possible. Bassett v. ZJ. 8 ., 2 Nott & McCord (Court of Claims), 448. Bottenberger et al. v. Horicon Drainage Dist., Wis., April 17, 1908 ; 116 N. W., 12. Shaw V. Cratvford, 10 Johnson (N. Y.), 235. People V. Gutchess, 48 Barb., 656. State V. Pool, 74 N. Car., 402; opinion of Rodmox, J. VIII. JUDICIAL NOTICE WILL BE TAKEN OF THE HISTOEY OF THE STEEAM, AND OF THE HISTOEY OF THE STATE, AND OF THE HISTOEY OF THE AET, BY THIS COUET, AS WELL AS THE TEIAL COUET. THE POWEE TO TAKE JUDICIAL NOTICE IS EXEECISED ALIKE BY COUETS OF EEVIEW AND COUETS OF FIEST INSTANCE. Hanley v. Donoghue, 116 U. S., 1. Hunter v. N. Y. Sc. R. Co., 116 N. Y., 615. Doivning v. Miltonville, 36 Kans., 740. People V. Truckee Lumber Co., 116 Cal., 397. State V. Wabash Paper Co. (Ind.), 51 N. E., 949. ( i Call' V. M’Caniphell, (il Ind., 97. McCoy V. Columhian Exposition, 18() III., 359. City of Chicago v. Duffy, 117 III. Ap])., 261. (Andreas History of Chicago, judicially noticed })y tlie Appellate Court, p. 277). Affirmed, 218 111., 242. Judicial Notice. COURTS TAKE JUDICIAL NOTICE OF MATTERS OF HISTORY AND OF STAND- ARD WORKS, IN WHICH THOSE MATTERS OF HISTORY ARE RECORDED. Morris v. HarmeCs Heirs, 7 Peters, 554-8, 9. 1672, St. Katherine’s Hospital, 1 Vent, 151, Speed’s Chron- icles.” 1682, Bronuker v. Atkyns, Skinner, 14, ‘‘Speeds’ Chronicles.” 1718, Proceedings respecting the Education, etc., of the Koyal Family, 15 How. St. Tr., 1202, 1203, 1206, 1209 (the Judges drew up an opinion upon the King’s prerogative in the matter, and cited precedents on the exercise of the prerogative from Rymer’s Foedera, Lord Clarendon’s History, Cotton’s Record, Kennett’s History of Eng- land, Burnet’s History of the Reformation). 1834, Marguerite v. Chouteau, 3 Mo., 540, 555 (DiiPratz, Barbe Marbois and others’ works, consulted as to the existence of slavery of Indians in America in the 1700s). 1836, Com. V. Alhurger, 1 Whart, 469, 473 (a letter of William Penn contirming a certain grant; its mention “in Proud and various other historical works” treated as suffi- cient, the matter being ancient). 1869, Baird v. Rice, 63 Pa., 489, 496 (in Hetermining the ancient plan of London’s streets, etc., so as to interpret Penn’s plan of Philadelphia, the following works were con- sulted: Maitland’s History of London, 1754; Bohn’s Pictorial Handbook of London, 1854; Great London l)i- rectoiy, 1855). 1811, Had f eld v. Jameson, 2 Muiif., 53, 71, i)er Tfckeh, d. (Ed- 78 ward’s History of the Wost Indies, used to sliow tlie gov- ernment of liispaniola). The erroneous diction contra suitably enough came from the mouth of the infamous Jeffries. KiSd, L. C. J. Jeffreys, in Lady Ivy’s Trial, K) How. St. Tr., 555, 625 (rejecting a history offered to show the date of Charles V. ’s abdication and Philip and Mary becoming king and queen of Spain, over a century before: ‘‘In- stead of records, the upshot is a little lousy history * * * * Is a printed history, written by I know not who, an evidence in a court of law?” The following matters will be noticed judicially: Public documents of the State and of the United States report- ing acts of the State and Government, such as census reports and reports of engineers in surveying the river for improvement. Chi. & A. R. Co. V. Baldridge, 177 111., 229. Miles V. Stevens, 3 Pa. St., 21, 45 Am. Dec., 621. Campbell v. Wood, 116 Mo., 196 (of general instructions issued by the surveyor general to the deputy surveyors for the States of Illinois and Missouri.) The courts will receive public documents such as census re- ports (96 Ala., 403; 60 Vt., 351). United States Engineers’ reports of Government Surveys {Miles V. Stevens, 3 Pa. St., 21; 45 Am. Dec., 621). Reports of the U. S. Signal Service {N. W. By. Co. v. Trayes, 17 111. App., 136; Evanston v. Gunn, 99 U. S., 660). State Registers and Reports {Lurton v. Gilliam, 1 Scam., 577 ; 33 Am. Dec., 430; Nulford v. Greenhiish, 77 Me., 330; Worcester V. Northboro, 140 Mass., 397). Legislative Journals {Boot v. King, 7 Cow., 613; State v. Smalls, 77 S. Car., 262). State papers {Watkins v. Holmans, Lessee, 16 Pet., 25; Bryan V. Forsyth, 19 How., 334; Gregg v. Forsyth, 65 IT. S., 179). Deceased surveyors’ reports, tiled notes, declarations and li) Mcinoninda [Ross v. Rhoads ^ 15 l?a. St., 155; Rirmingliarn v. Anderson', 10 Pa. St., 5()(); Russell v. Werniz, 24 Pa. St., 52>7 ; Galbraith v. Elder, cS Watts., 81, (tllruts Heirs v. Catron, 22 (Iratt., 378; Kirbg v. Leivis, 39 Fed., GO; Conkling v. Westbrook, 81 Pa. St., 81; Penna Coal Co. v. Diinkel, 101 Pa. St., 103; books regu- larly kept in eoiiiity offices, though not technically public records. La Salle Co. v. Simmons, 5 Gilni., 573). Ancient maps and land office papers, Trans Co. v. Christian (Tex.), 21 S. W., 119. Foivler v. Scott, 64 Wis., 509. Fothergill v. Stover, 1 Dali., 6. Farr v. Swan, 2 Pa. St., 245. Morris v. Harmer’s Lessee, 7 Pet., 554. Whitman v. Shaw, 166 Mass., 451. Unsigned maps, WhiUnan v. Shaw (Mass.), 44 N., 333. Prouty V. Tilden, 164 111., 163. The laws of nature, principles of science, rules and principles of mathematics. See, among others, Scanlan v. San Francisco, etc., Rg. Co. (Cal.), 55 Pac. Rep., 694. McKuppen County v. People, 58 111., 191. Beall V. Dingman, 227 111., 294. Fidler v. Shedd, 161 111., 462. Pritchard v. Wcdker, 22 111. App., 286; affirmed, 121 111., 221 . N. K. Fairbank Co. v. Nicolai, 66 111. App., 637 (judg- ment reversed on another point in 167 111., 242 ; Case V. Perew, 46 Hun., 5; 10 State Rep., 611). Sanborn v. People’s Ice Co. (1900), 84 N. W., 641-643. Statutes, Public Acts and Resolves of the Legislature and Con- gress, and public documents embracing reports of public officers. Case V. Kelly, 133 U. S., 21. Covington Drawbridge Co. v. Shepherd, 20 How., 227. Doyle V. Bradford, 90 111., 416. so Peoria £c. It. Co. v. People, L16 111., 401. MeCarver v. ITerzberg, 120 Ala., 523. Htafe V. Delesdenier^ 7 Tex., 76. The facts of geography, including political divisions of the country and the State, and their respective boundaries; the loca- tion of the principal natural features, lakes, rivers, and water courses, and their relation to the boundary lines; and tlie dis- tribution of population. Canal Comrs. v. Village of E. Peoria, 179 111., 214, affirm- ing 75 111. App., 450. Gooding v. Morgan, 70 111., 275. Harmon v. Chicago, 100 111., 400. Wice V. Chi. S N. W. B. Co., 93 111. App., 266 (reversed an another point in 193 111., 357.) Ross V. Reddick, 15 C^ain.,' 73. Higgins v. Bidlock, 66 111., 37. People V. Truckee Lumber Co., 116 Cal., 397. Brnson v. Clark, 157 111., 495. The Montello, 11 Wall., 411 ; 20 Wall., 430. So of Governmental surveys, and boundaries, locations, dis- tances and areas, deducible tlierefrom, Gardner v. Eberhart, 82 111., 316. Smith V. Stevens, 82 111., 554. Kile V. Town of Y ellowhead , 80 111., 208. C. (T A. R. Co. V. Keegan, 185 111., 70, 78. Illustrative Cases on fJuDiciAL Notice. ‘‘Courts take judicial knowledge of the geography of the country, and hence judicially know that the Wabash and’ Miami Counties are less than 400 miles distant from the mouth of the Waliash Eiver. We also judicially know that the cities of AVabash and Peru and other towns in said counties are situated on the lianks of such river.” Nov. 17, 1898 (Ind. Sup. Ct.) State v. Wabash Paper Co., 51 N. E. K., p. 949-51. The court will take ,pidicial notice of the existence of rivers and creeks em])tying into the Illinois Piver and of the fact that they carry large (piantities of sand, sediment and debris into SI such river, and lhal sliil lli(‘ Illinois riv(n‘ is a, navi^ahh' j-iver. CaiKil Coinrs. v. VlllcKjc of Kasl Peoria, 17!) HI., 1^14; af- firining 77) III. App., 450. (3884) TJie court will take judicial notice of the fact that the Oliicago river is situated in the -midst of the city, where a dense po})ulation exists, and where much business is trans- acted. llaraion v. City of Chicago, 110 111., 400; ahirming Apj). Ct. (unreported). , (1901) Tile court will take judicial notice that the north branch of the Chicago river, across which extends the bridge at or near Kinzie street, is a navigable stream. Wice V. Chicago d N. TF. By. Co., 93 111. App., 266; judg- ment reversed on another ]ioint 193 111., 351. ^‘We take judicial notice of the fact that the United States were the proprietors of Section 17, Township 39 North, range 14 East, and that they granted the same to this State.” Smith V. Stevens, 82 111., 554. Repeated in C. d A. B. Co. v. Keegan, 185 111., 70, 78. The location of meridians and lands with reference to them and in what county and townshij), will be ascertained by judicial notice. O’Brien v. K roeldnski, 50 111. Ajip., 456. Van Loire v. Whitt eniore, 19 111. A])])., 447. Kile v. Toirn of Yelloirhead , 80 Til., 208. (1876) The court will take judicial notice of governmental surveys of ])ul)lic lands, and that a (luarler section of land con- sists of four forties, each with well-defined l)ounds. Cardner v. Eherliart, 82 111., 316. (1875) And that the south line of section 3t) and the south line of a townshi]) are one and the same line. Kile V. Toirn of Yelloirhead, 80 111., 208. (1873) dudicial notice of different items combined and applied thus: ^^This court takes judicial notice of the a('ts of congress in I’egard to the disposal of the pul)lic lands, and of the kind of evidence furnished to a ])urchaser, and of the system of sur- veys adopted for those lands by congress. It also takes judi- cial notice of the division of this state into counties; and, putting this knowledge into recpiisition, it enables us to say, with the most ])erfect confidence, that a tract of land sold in # the Uanville land district, in this state, lying in seven east, is a tract of land east of the third T)rincipal meridian, and can he no other, and tliat it is within the established limits of the county of Livingston.” Gooding v. Morgan, 70 Til., 275. (18()9) The ('oui’t will take riotiee that, the United States made no surveys of lands in the 'State of Tennessee. II7//7r V. il eniuiint , ol 111., 24-d. The fact that the World’s Uoluinbian Exposition was lield in diieago needs no ])roof. McCof) V. World’s (Udumhuvn Exposition^ 180 111. App., :kj(k The court will tak(‘ judicial notice of the fact that the home of defendant was only Iwo miles distant from the court house. Bnison v. Clark, 157 Ilk, 495. (1884) The court wall take judicial notice of the fact that the Uity of Uhicago is situated near the bituminous coal fields of the State, and tliat a great deal of such coal is used as fuel by the manufacturers of the city. IfarnioN v. dtp of Chicago, 110 Ilk, 400; affirming App. Ut. (unreported). (1880) Since all appro])riations by the legislature can only l)e made by ])ublic law, the court will take judicial notice that at a certain time the general assembly has, by appropriations, exhausted the constitutional limitation of $8,500,000 authorized to be ex])ended on account of new capitol grounds for the con- struction of a state house, and of the fact that there is no money in the treasury that can be legally applied in payment of cer- tain claims. People V. Stuart, 97 Ilk, 123. (1880) The court will take judicial notice of the popula- tion of the county, and of the class to which it belongs, under the act of 1872. Worcester Nat. Bank v. Cheney, 94 Ilk, 430. (1898) Uourts wall take judicial notice of the federal census in determining a question involving the number of inhabitants in cities within their jurisdiction. Chicago d A. B. Co. v. Baldridge, Counti/ Treas., 177 111., 229. (1887) The court will take notice of the seasons, and of the times of harvest. Pritchard v. Walher, 22 Ilk App., 286; judgment affirmed 121 Ilk, 221. (1896) The court will take judicial notice of the laws of nature, and that odors diffuse in the circumambient atmos- phere with the certainty that water runs dowm hill. N. K. Fairhank Co, v. Nicolai, 66 Ilk App., 637; judgment reversed on another point 167 Ilk. 242. (1899) The court will take judicial notice * * * of nat- ural ])henomena, such as the rising and setting of the moon, and the difference of time in different longitudes. {Case v. Pcrc 7 r, 46 Hun., 57, lOStateEep., 811) ^ ^ ^ IX. h:; THE VAKlAliLE AND PKOGRESSl VE DEVELOPMENT OF NAVfGATION DOES NOT DESTROY THE PUBTAC RIGHT TN STREAMS ORKJTNAT.LY NAVIGABLE. RECENT DEVELOPMENTS HAVE GIVEN ERESH VALUE TO SHALLOW DRAET NAVIGATION. A. AN EXISTING PUBLIC RIGHT OF NAVIGATION IS NOT LOST BY CHANGES IN THE CONDITION OR USE OF THE STREAM. B. BUT CHANGES IN THE STREAM BENEFICIAL TO NAVIGATION WILL EN- LARGE THE RIGHT OF NAVIGATION. C. NAVIGATION IS A VARIABLE ART. CHANGES IN THE ART OF NAVI- GATION AND TRAVEL MAY ENLARGE, BUT NOT DIMINISH, THE RIGHT OF NAVIGATION. A. AN EXISTING PUBIHC EIGHT OF NAVIGATION IS NOT LOST BY CHANGES IN THE CONDITION OR USE OF THE STREAM. People V. Page, 89 X. Y. Ap]). Div., 110, relative to the Mohawk Biver; tlie Court there said: ^^The fact that at ])reseiit under the changed conditions in the stream, its use for commerce or navigation is insigniticant, does not destroy the i)ro])rietary rights of the State, or give the Defendant tlie right to appropriate the stream and bed to liis individual use.” In Attorneg General v. ('itg of Pan Claire, 87 AYis., 400, Byan, C. J., said : ^‘The actual navigation may he little and the ohstrnction might he slight^ — so the affidavits tend to show, — but neither the right nor the Avrong is a question of degree.” No intention will he ini])lied to discontinue the right of way in the stream. Conn. Biver Lumber Co. v. Olcotf Falls Co., 64 N. H., 290; 18 L. B. A., 826. 84 B. CHANGES IN THE STREAM JNCKEASING ITS DEPTH AND TMPKOVTNG THE NAVKJATION ENI.AR(iE THE EIGHT OE NAVIGATION. A STREAM SO IM- PROVED IS TO BE CONSIDEKED IN ITS LATTER CAPACITY. Schulte V. Wan- CM, 218 111., 108, 120. Tliere tlie (.^oiirt said: ^‘Soiiie years ago a Jock and dam was built at LaCIraiige, lielow the Jands, wliicli raised the water of tlie lake about 18 inches; and afterward, the Sanitary District Canal was opened, raising the water three or four feet more, so that the natural stage of the water in the river is alioiit five feet higlier than in its natural condition. * * ^ Appellant did not lose his title to the lands by their submergence; and we do not understand counsel for appellees to claim that he did, except as against a supposed public right of navigation, hunt- ing and fishery. * * * The evidence sufficiently shows that there are considerable spaces on these lands permanently sub- merged to such a depth, that' there is a right of navigation in the public.” The same Sanitary District Canal, which submerged those lands and increased the depth of that river three or four feet, has in- creased the depth of the Des Plaines Eiver throughout the nav- igable reach here under consideration, by the same three or four feet. The navigability of a stream so improved is to be judged by its enlarged capacity. Mendota Chih v. Anderso7i, 101 Wis., 479; s. c., 78 N. W., 185. Reg. V. Betts, 16 Q. B., 1022. Village of Peivankee v. Savoy, 103 Wis., 271; 50 L. B. A., 836. This principle works both ways; the increase of water will increase the right; and the development of the art of navigation by the use of larger vessels requiring the use of greater depths of water, will extend the paramount right of navigation, so that structures placed under the river, which were lawful and did not interfere with navigation when constructed, will become unlawful by reason of such obstruction resulting from the increased use of the river. West Chicago St. By. Co. v. The People, 214 Ilk, 9, 20. The rig-lit to have water flow in an artifi(‘ial eliannel and to flood land whicli it would not overflow naturally may he acquired hy prescription. Vail V. Mix, 74 III, 127. Ballard v. Struckman, 123 111., 636. Totel V. Bonnefoy, 123 111., 633. And tlie public, which turned the water in for public purposes at its own expense, acquires, this right the same as a private person. Beidler v. Sanitary District of Chicago, 211 111., 628, 635. So, on the other hand, the development of navigation by the use of new processes involving only a shallower depth, will enable navigation to be carried on over waters which formerly were not used, and the erection of dams increasing depths which were originally shallow, to an amount sufficient for the use of the stream, ■ — will enlarge the right of ' navigation accordingly. Schulte V. Warren, 218 III, 108, 120. ]\Iendota Club v. Anderson, 101 Wis., 478. The right of navigation is paramount, and when increased needs for navigation require it, all uses and claims inconsistent with the right of navigation must give way. Bridge Co. v. V. S., 105 IT. S., 470. State of Pennsylvania v. Wheeling Bridge Co., 13 How., 518. 17. S. V. City of MoVuic, 82 Fed., 592. Scranton v. Wheeler, 179 V. S., 159. (ribs on V. U. S., 166 IT. S., 269. TL S. V. Bellingltam Bay Boom Co., 176 U. S., 211. 1899 Mendota Club v. Anderson, 101 Wis., 479; 78 N. W., 185. The right of the public in the river as a highway is not restricted to the channel, but extends to every part of the river bed, into which a boat may go. Porter v. Allen, 8 Ind., 1. In Mendota Club v. Anderson, 101 Wis., 479, the Court said: There is no claim that it was an unlawful structure. Al- though an artificial structure, which considerably increased the (lei)tli, the extent, and breadth of tlie waters on the prem- ises in (piestion, yet the })ublie had the right to navigate such waters after they were so increased in volume, tlie same as tliongli they Jiad always remained in tliat condition. Whislar V. WilkinsoH, 2'1 AVis., o-tb; Volk v. Eldred, 2d Wis., 410; Waath- erbij V. Meiklejohn, bO Wis., 72, Id X. W., 097; Hmitii v. Y ou- DuiuSj 90 Wis., lOd, 70 X". W., 1115, and cases cited by Mr. Justice Pinney on page 110, 90 AVis., and ])age 147, 70 X”. W. Ceidainly, persons navigating the lake cannot be recpiired or expected to carry with them a chart and com])ass and meas- uring lines, to determine whether they are at all times within wJiat were the limits of the lake prior to the construction of the dam. * * As to the Catfish creek, the federal stat- ute, as it has existed for more than a century, declares that ‘all navigable rivers, within the territory occupied by the pub- lic lands, shall remain and be deemed public highwaj^s; and, in all cases, wdiere the opposite banks of any streams not navigable belong to different ])ersons, the stream and the bed thereof shall become common to both.’ llev. St. U. S., 2470; Shively v. Boirlhy, 152 U. S., d2, dd, 14 Sup. Ct., 548. The federal statutes, regarding the duties of surveyors of ])nblic lands, cited, a]p)ly to such navigable streams. It is conceded that the iiortion of the Catfish in Question is a nav- igable stream. Willoir Biver Cliih v. Wade (AVis.), 70 X". AA"., 27d. AVhat has been said about the raising of the waters of the portions- of the lake in question applies equally to the rais- ing of the water and broadening and deepening of the channel of Catfish creek.’' “ ^ artificial state or condition of flowing water, founded upon prescription becomes a substitute for the nat- ural condition previously existing, and from which a right arises on the part of those interested to have the new con- dition maintained.” Smith V. Youman, 90 AAns., lOd; 70 X. AA^., 1115. The same rule is laid down in Wetherhy v. Meiklejoluu 50 AAns., 73; 13 X. AAC, 097. C. NAVIGATION IS A VARIABLE ART. Changes ix^ the art of navigation and thavel may enlarge, but NOT DIMIN^ISH, THE RIGHT OF NAVIGATION. The Wheeliuy Bridge case, 13 How., 518, 501-2, plainly sup- ports this proposition. Tn a state of nature, the Ohio Eiver did not admit of the passage S7 of boats of (loop (Irafl and lioavy loads, willi tall (‘liiiini(‘ys and pilot bouses; and it 'ivas oiilij as improved ^ that the riven- |)r(iS(n)t(Ml a bigliway to wliieli the bridge was an obstruction. Tlie commissioner especially found (p. *559) : That the bridge is not an ohstrnction to the free nav- igation of the Ohio by any vessels propelled by sails. 2. That the bridge is an obstruction of the free navigation of 'file Ohio by vessels propelled by steam.” The Court held the bridge an unlawful obstruction. The art of navigation had been enlarged by the invention of steam and by the improvement of the river. The Wheeling Bridge case necessarily involves the principles that the^right of navigation grows pari passu with the improve- ment of the stream and the improvement of the art. The AYheel- ing Bridge did not interfere with navigation of the type that had existed on the stream for a century before; but it did inter- fere with navigation of the kind developed by the improvement of the channel and the introduction of steam; therefore the Court enjoined the maintenance of the bridge and decreed its removal. The right of navigation enlarged to correspond with the improved stream and the improved method of using it. The changes in the art of navkjatton have been : (1) Toward larger and larger steamboats, until the maximum useful size was reached and jiassed; (2) The towing fleet, by whi(*h a small and powerful tow-boat hauled a fleet of freight barges; (3) The freight launch and motor boat. Evidence of Palmer, Abst., p. 316. Gould’s ” History of Biver Navigation,” pp Mark Twain’s ^‘Life on the Mississippi,” pp. 255-256: Census Beport on ‘‘Transportation by AVater,” 1906, ]i]i. 28-29, 33-34. Bailroad and other bridges, though impeding the |)ractice of navigation do not de])rive the ])ublic of their right to navigate. Wheeling Bridge case, 13 How., p]). *573-7. People V. (hitch ess, 48 Barh., 656. (dark V. Lake, 1 Scam. ss D. KBCENT 1)EVKL0]>MENT FREIGHT, LAUNCH AND MOTOR BOAT HAVE CAITSED A GREAT REVrVAL IN SHAI.LOW DRAFT INLAND NAVIGATION. Tlio freiglit laiiiieli lias been in use since a few years prior to the World’s Pair in 1893. The motor boat proper, inovinp^ ])y internal combustion, with- out the use of steam, has been in use since about 1900. They are specially adapted to shallow draft navigation on inland waters. They were first built by the English for use on streams in Africa, and known as the ^ ^Mosquito Fleet.” They travel on from 8 inches to 2^- feet of water, and carry from 5 tons to 60 tons, and upwards. With the invention of the freight launch and motor boat, there has been a decided increase in' the amount of navigation and commerce carried on on the internal smaller waters and streams. Their mannfactnre in the last few years has outnumbered that of stream vessels by 100 to 1. There are approximately 200,000 launches for all purposes, — freight, passenger and pleasure, and motor boats now in use. Evidence of Palmer, Abst., p. 318. Evidence of Sweeney, Abst., p. 321. Evidence of Fox, Abst., p. 330. Evidence of Cooley, Abst., p. 925. Coen’s U. S. Patent, on Tunnel Boat propeller, Abst., p. 1725. Evidence of Defendant’s witness Pryor, Abst,, p. 1029. Evidence of Defendant’s witness McCullough, Abst., p. 1178. Census Report on ^^Transportation by Water,” 1906, pp. 28-34. ‘^Present Aspects of the Mississippi River Problem,” by Judge R. S. Taylor of the Mississippi River Com- mission. The tunnel-bnilt boat is a special type of shallow draft boat, which has a semi-cylindrical tunnel in the bottom of the boat in which the propeller is placed, and above which a stand pipe of 89 Avater is opcM-ated; so ilial tlio boat may opei’atc* in a str(iam a Toot (loop, and yot tlio pi*Oj)oll(‘r rovolve in a (‘olumn of wator four foot (loop; giving all tlio offioionoy capa(‘ity of a four-foot stroarn of water. . Fividenoe of Fox, Abst., p. 333. ITe testified to tlio ns(! of a fleet of eight such boats. 'Coen Patent, U. S. Patent No. 733,010, Abst., p. 1725. The modern freighting launch and motor boat have the same requirements as to depth and draft as the Mackinac boats and bat- teaux of the early fur trade, but with a gasoline motor set in the bottom. X. THE WX\TERS OF LAKE MICHIGAFT ADDED TO THE DES PLAIXES RIVER BY THE SANITARY DISTRICT CHANNEL LAWFULLA^ AND PERMANENTLY IM- PROVED THE NAVIGATION OF THE RIVER; AND ITS NAVIGABILITY IS TO BE JUDGED AS SO LAWFULLY AND PERMANENTLY IMPROVED. Schulte V. Warreu, 218 111., 108, 120. Mendota Club v. Anderson, 101 Wis., 479; s. c., 78 N. AY., 185. Smith V. Y oilman, 96 AYis., 103. Village of Pewankee v. Savoy, 103 AYis., 271; 50 L. R. A., 836. The statutes of Illinois, authorizing the Illinois and Michigan Canal, and the Deep Cut, and authorizing the construction of the Sanitary District Channel, have ])ermanently altered the face of nature, and brought Chicago into the Mississippi water shed. Missouri v. Illinois, 200 U. S., 496, 526. When such a permanent alteration has been made, the stream is thereafter to be judged by its altered capacity and improved con- dition. Ibid. The Sanitary District Channel was constructed for the primary purpose of providing drainage, by the addition of a vast amount of the water of Lake Michigan to the Des Plaines Kiver, and the incidental purpose of improving the navigation of the Des Plaines and Illinois Divers by means if the water so added. no The A(*t, entitled: ‘'An Act to create sanitary districts, and to remove o})strnctions in tlie Des Plaines and Illinois Rivers,’' approved May 20, (L. 1880, ]). 125, 2 S. & 0., 2nd Ed., Cli. 42, ])ar. 1-28), was ])assed on the same day as the legislative resolu- tion, entitled: “Rivei* lni])rovement, Des Plaines and Illinois;” which described the i)hysical conditions of the Des Plaines and Illinois Rivers and outlines the ])lan for ])oth drainage and navi- gation ini|)rovement and declared tliat: “It is conteni])hited to increase the volume from Lake ^Michigan to 300, OOO cubic feet per minute within a few years and ultimately to add 000,000 cubic feet or more, thus enabling a large de])th for navigation to he obtained by an improved cl 1 aim el ; And that these works l)y the City of Chicago “Will form part of a waterway of large ])ro])ortions from Lake Michigan via the Des Plaines and Illinois Rivers to the Mississippi Rivei*;” And resolved : “That it is the ])olicy of the State of Illinois to |)rocure the construction of a waterway of the greatest ])racticable de])th and usefulness for navigation from Lake Michigan via the Des Plaines and Illinois Rivers, to the Mississippi River.” (Laws of 1889, p]). 375-376.) Section 24 of the Drainage Act (2 S. & C., 2nd Ed., Ch. 42) shows the same purpose, viz: “Section 24: ^Vhen such channel shall be completed, mid the water turned therein, to the amount of 300,000 cubic feet of water per minute, the same is hereby declared a navigable stream. ’ ’ This means that the water flowing in that channel is a navigable stream. The irater so turned in was navigable in fact, and it does not Jose its navigalnlity upon passing out of the artificial channel into the channel of the Des Flaines River. That water is just as navigable half a mile southwest of Joliet as it is half a mile northeast of Joliet. The Drainage Act provided ample remedy for any damage to persons or property by the adding of this navigable l)ody of 'vater to the Des Plaines River. 91 For pvo})erly taken, eoiuleiiiiiatioii praxjecMliii^'s ai‘(‘ aiitlioriz(‘(l. Ihid., See. Ki. Power granted to enter upon, //.ve, widen, deepen end im- prove anij navigable or other ivaters, ivaterways, canal or lake, — PKoviDKi) tlie public use thereof slialJ not be unnecessarily in- terrupted or interfered witli, and tliat the same shall be re- stored to its former usefulness as soon as practicable.” Ibid., • Sec. 17. Payment of damages, special taxation authorized, Ibid., Sec. 18. ^‘Section 19. (Damages Recoverable.) Every sanitary dis- trict shall be liable for all damages to real estate within or without such district which shall be overflowed or otherwise damaged by reason of the construction, enlargement or use of any channel, ditch, drain, outlet, or other improvement under the provisions of this act ; and actions to recover such damages may be brought, etc.” {Ibid., L. of 1889, pp. 132- 133.) These remedies provided by the Sanitary District Act embrace both condemnation of property directly taken, and the right of action by the land owner for property damaged or interfered with in its use, though not taken. Sanitary District of Chicago v. Hay, 85 111. App., 115, 119. Sanitary District of Chicago v. Ray, second case, 119 111., 63. Sanitary District of Chicago v. Martin, 227 111., 260. Beidler v. Sanitary District of Chicago, 211 111., 628. Tlie remedy by condemnation ])roceedings ap})lies to ])ro])erty to be taken. The remedy of action by the ])roperty owner applies to ])ro])erty damaged, but not taken. i\s to the latter (the remedy by action of the land owner) it is not unlawful for the Sanitary District to proceed to construct its i til provement before the ascertainment or payment of the amount (,f damages. See authorities last cited, also: Peoria, etc., R. R. Co. v. Schartz, 84 111., 135. Parker v. Catholic Bishop of Chicago, 146 Ilk, 158, affirm- ing 41 111. App., 74. Stetson V. Chicago, 75 Ilk, 74. Patterson v. Chicago, etc., R. Co., 75 Ilk, 588. '^riiis principle, that tlu^ ascertainment of damages need not pre- ('ede the constiaiction of the work, applies particnlarly to the dam- ages by tlie flowage oi‘ land l)y the construction of public works. Nevins v. Peoria, 41 Ilk, 502. Wahash v. Prie Canal Co., 1(5 Tnd., 441. Proprietors of Pocks and Canals v. Nashua R. Co., 10 Cush., 385. Estahrooks v. Peterhorough R. Co., 12 Cush., 224. Trenton Water Poiver Co. v. Raff', 7 Vroom., 335. Hooker v. Near Haven Co., 14 Conn., 140; s. c. explained 15 Conn., 312. Grand Rapids Booming Co. v. Jarvis, 30 Mich., 321. Mills V. U. 8 ., 46 F. E., 746. Pmnpley v. Green Bay Co., 13 AValh, 166. Matter of Commissioners of State Reservation, 37 Hun, 537, 542. The improvement of navigation is a public use. In re Burns, 155 N. Y., 23. Hazen v. Essex County, 12 Cush., 475. Spooner v. McConnell, 1 McL., 337. Homochitto Rivers Corn. v. Withers, 29 Miss., 21. Barney v. Keokuk, 94 IT. S., 324. Avery v. Fox, 2 Fed. Cas., No. 674. Bedford v. U. 8., 36 U. S., Ct. of CL, 474. The policy of the State does not authorize the taking or damaging of private property for private uses; much less of public property for private uses. Mather v. Ottcara, 114 111., 659. Gaylord v. Sanitary District of Chicago, 204 111., 576. (This latter case holds: ^‘That the Act of Mills and Millers in so far as it |)urports to authorize the condemnation of private property for the pur- poses of public mills and machinerv other than public grist mills, is void, as permitting the taking of property for ])rivate uses : and holds, p. 581, that these acts were ‘‘manifestly passed at a time when water power was .practically the only means of running such mills, and vvdiicli, in tlie iluni existing- ('ondition of s()(*i(‘ly, vv(n‘e a j)nl)- lic necessity.”) For sncli ])ei*nianent damages by lawful woi-ks, the riglit of rc*- covery is conij)lete wlien the permanent cliange in the face of nature is made. Tlie owner wlio owns the pro])erty at that time has the right of recovery, once for all, of all damages, i)ast, present and future. Chicago S Alton B. Co. v. Maher, 91 111., 312. Chicago S Eastern III. R. Co. v. Loeh, 118 111., 203. III. Cent. V. Grabill, 50 111., 241. C. R. I. & P. R. Co. V. Caretj, 90 111., 514. Troy V Cheshire R. R., 12 N. H., 83. Van Schoyck y. Del., etc.. Canal Co., 20 N. J. L., 249. Heard v. Middlesex Canal Co., 5 Mete., 81. The drainage water was turned into the Des Plaines River Jan- uary 17, 1900. The party who owned the land then had the right of action. Upon the sale of that ])roperty, he sold it burdened with the altered condition, ])rodnced by the addition of the drainage water, — which burden included the burden of increased navigability. The right of action for the damages consecpient upon the improve- ment of navigation did pot i^ass to the grantee. It is a personal right which is not transferable. Chicago £ Alton R. R. v. Maher, 91 111., 312. Chicago £ Eastern III. Ry. Co. v. Loeh, 118 111., 203. ' Galt V. Chicago N. W. Ry. Co., 157 111., 125-134. City of Centralia v. Wright, 150 111., 561. Pinkneyville v. Ilntchings, 63 111. App., 137. It is admitted by the defendant that it acquired title to the prop- erty on eacli side of the river in Section 25, Township 34, Range 8, and in Section 36, Township 34, Range 8, to the same extent that it owns now, by deed from Harold T. Griswold on November 30, 1906, being the property on each side of the river, at the point where the dam was located. And that said Griswold acquired the title to said property on each side of the liver, as trustee for 5,1 r. Charles A. Munroe and Mr. 94 Frank G. Logan; and that said Griswold first aociiiired an. interest llioi’oin l)y (‘ontraot \n tlie spring of tlie year 1904, which interest afterwards ripened into title, and whicli title he conveyed to the Fconomy Light. & Power Company, Noveniher 30, 1906. (Ahst., pp. 1617-8.) The drainage water had been running in the lies Plaines Elver over this spot from January 17, 1900, to Noveml)er 80, 1906, — six years, ten months and a half, — when the defendant acquired its title. Tt took title burdened with the changed condition and im- proved navigability thereby produced. Any right, which the grantor, preceding Griswold, had, was sub- ject to the public right, which must be left free and unobstructed. Even a work which might be lawful when erected, because not interfering with the public right of navigation in its state of devel- opment then existing, must give way whenever by improvement in the navigability it becomes an obstruction to the paramount right of navightion. ^‘An owner who erects a structure in the soil under the navi- gable water, does it at his peril, and if it becomes an obstruc- tion to the paramount right of navigation, he may be compelled to remove it.” West Chicago St. R. R. Co. v. The People, 214 Ilk, 9, 20. Gihson V. United States, 166 U. S., 269. Holyoke Water Poiver Co. v. Conn. River Co., 52 Conn., 570. The change in the depth and volume of water in the Des Plaines by the addition of the drainage water was a lawful change, having the incidental object of improving the navigation of the river. It was made by an expenditure of upwards of $50,000,000 of public money raised by taxation, and was made in pursuance of the llrainage Act and the Navigation Eesolution of May 28, 1889. An improvement of navigation was one of the purposes for which it was made. Defendant claims that the river was non-navigable to start with; that there was no incidental purpose of improving navigation in this expenditure of over $50,000,000 of public money; and that, therefore, this water, when added to the Des Plaines Kiver was abandoned water, which partook of the character of the non- iiavigablo, original stroani; and tlioroi'oi'o, inahn- tin* (iootrfru; oT Dndei/ v. Adam, 102 III., 177, it txicamc, part of tho unearned, in- crciiumt of the defendant by virtue of its lower riparian pro[)ri(‘toi‘- sliip. The State insists upon the contrary of this. The State insists that the purpose of improving navigation is set forth in the title and body of the Drainage Act, and in the con- current Navigation Eesolution, passed April 28, 1889. In Drnlei) v. Adam, the Canal Commissioners were taking lower down the water which had been put into the river higher up. Th(« waters had been put in for the purpose of improving navigation, and not for the purpose of water power, and the taking of them out was not for the purpose of navigation, and was for the pur- pose of water powder. In the case at bar, the waters were put in for the purpose of navi- gation, and have never been taken out, and there was no intention on the part of the State either of taking them out, or of letting any one else take them out. In Drnley v. Adam, this court said: ‘^The deepening of the Summit level, and the cntting of the tunnel, and doing of the other work enabling appellant to with- draw water from the the canal to ])ropel his machinery, were not concurrent acts, nor parts of a single im])rovement. The acts 'll' ere disconnected in point of time and disconnected in purpose. Appellant’s watei* power was obtained by him from the Board of Canal Commissioners tony suhsequent to the deepening of the Summit level, and, for aught that is disclosed in this record, it ivas not even thought of rrhile that leorh was ip progress, nor until some time after its completion. * ' * * * * * T1 le Act of April lb, 1865, under which the City of Chicago deepened the Summit level, discloses no such purpose. It shows that, so far as the City of Chicago 'U'cis concerned, the sole purpose was to purify or cleanse the Chicago Kiver. It is true, it is therein shoivn that it was desirable to cut down the Summit level, so as to draw a large supply of water from Lake Michigan; hut this was not for motive power, hut is expresshf said, to he ‘for navigation.’ ” The deep cut was made to purify the Chicago Diver, ^Cind foi* navigation”; therefore the plan thought of long afterwards by the Canal Commissioners of diverting a lot of the water so added and soiling it out for ])rivate pnrjx)^^^ hhis held to he not ivithin the jjurpose of the Act, (luthonzing that addition to the river. Tlu' idea of water ])ower, to wliieli it was subsequently sought to he devoted, was not even thouyht of until some time after its eompletion. But the drainage watei* was turned in for the very purpose of improving navigation, and the ])urpose of navigation was writ large u]:)on tlie face of tlie Act, autliorizing the expenditure of ])ul)lic treasure to accomplisli this beneficent result. The improvement of navigation was not something ‘Aliscon- nected in ])oint of time and disconnected in purpose,’’ from the original Act. It was vitally connected from the beginning as ah incidental and lawful purpose of the Draiage Act. People V. Nelson, 133 111., 565. The public may lawfully unite the improvement of navigation with other purposes, and establish a public work combining both. Kaukauna Co. v. Green Bay, etc., Canal Co., 142 U. S., 254. Green Bay Caned Co. v. Patten Paper Co., 172 U. S,. 58. Stockton V. Poivell, 29 Fla., 1 ; 15 L. K. A., 42. The Sanitary District Act Protected Existing Water-Power Rights” Against Injury or Destruction. THIS DID not forbid THE ADDITION OF NAVIGABLE WATER TO THE STREAM. The language of Section 23 of the Act, after authorizing the con- struction of a channel causing the waters of Lake Michigan to jiass into the Des Plaines or Illinois Rivers, through a channel not less than 14 feet deep in earth and 18 feet deep in rock and 160 feet wide at the bottom, and making a continuous flow of not less than 300,000 cubic feet of water per minute, at a current not exceeding three miles per hour, provides : ‘Mn case a channel is constructed in the Des Plaines River as contemplated in this section, it shall be 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. 97 “Tli(‘ (listric't (‘onslnK'lin^- a (‘lianiu^l to (‘an‘v \val(‘r I'l-om Lake Miehigaii of any ajnoiint aulliorizcMl by Ibis Ael niay (*()rre(‘t, nioaifv and remove obstnudions in IIk; 1)(‘s Llain(*s and Illinois Rivers wherever it shall be necessary so to do to prevent overflow or damage along said river. * * * “And tlie C^anal Commissioners, if- they shall find at any time t]iat an additional sn])ply of water lias been added to eitlier of said rivers, by any drainage district or districts, to maintain a depth of not less tlian six feet from any dam owned ])y 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 be the duty of said Canal Commissioners to cause such dam or dams to be I'e- moved. ‘^This Act shall not he construed to authorize the injury or destruction of existing water-poiver rights/' It is plain from the context that the phrase “existing water- power rights” in this Act was intended to describe the existing dam developing water-power. The clause was inserted in the statute to prevent the Sanitary District, which was authorized to remove ol)structions from the Des Plaines and Illinois Rivers, from removing, without compen- sation, such existing dam, and in i)articular Dam Xo. 1 of th.e Canal C^ommissioners, which was then and there the property of the State. But for the insertion of this clause in the statute. Dam Xo. I inight have been held removable by agency of the State, viz: the Sanitary District, against the will and protest of the other, viz: the Canal Commissioners, and without compensation. “AVhei’e persons are authorized by the legislature to per- form acts in which the ])ublic are interested, such as grading, levying and im})roving streets and highways and the like, they are not answerable for the consequential damages which may l)e sustained by those who own lands hounded by the street or higliway.” Belliuger.Y. New York Central U. 1C, 23 X". Y., 42. This was decided in IBGl and s])ecifically a))plied in that case to the construction of ('iilveits, embankments and bridges con- veying the defendant’s railroad across West (himnhi Creek. It was one of the cases mai'king the difference between injury and damage and is customarily cited foi- the proposition that a woi*k 98 aiitli()i'iz(‘(l by the legislature heeoiiies a lawful work tlierehy; tliat the ueeessaiy eoiisecjuouees of such Avork wlieu constructed in a skillful nianner are conseciuential damages, hut are not injuries, wliil(‘ the harms ensuing from a rec'kless, negligent and im])roper construction of the work are hoth injury and damage. This was the tliougiit in the mind of the legislature in pro- viding that ‘‘This Act shall not l)e construed to authorize the injury or destruction of existing water-power rights.” The Sanitary District should not without compensation destroy Dam No. 1. ft should not, hy negligent and improper construction of its channel, harm Dam No. 1, (As to the doctrine in New York and other States that consequential damages from the proper construction of a law- fully authorized public work are not recoverable, that was changed in Illinois hy the constitution of 1870 providing that “Private property shall not he taken or damaged for pub- lic use without just ccmpensation.” Const. 70, Art. II, Sec. 13. It is not necessary to follow out the various distinctions and decisions in the cases before and after 1870 between takr ing and damaging.) The law remains in Illinois that the individual or company constructing works over water courses pursuant to legislative authority is bound to make suitable bridges, culverts and works for carrying off the water effectually and keeping them in suit- able repair; so that the works shall be adequate to care for all ordi- nary conditions. It is equally the law that the person or corporation so con- structing works and exercising such care, is not liable for conse- quential damage caused by unusual conditions. Illinois Cent. R. R. v. Retliel, 11 311. App., 17. The basis of this rule is that the work is antliorized hy law and therefore its consequences are not injuries (non lawful) so long as the work is properly done. And this is the law everywhere as to works over the waters of the State.- Ohio Sc. R. Co. V. Ramey, 139 111., 9. 99 Ohio dc. IL Co. V. Webb, 142 III., 402. Ohio C0C. n. Co. V. ThilUnan, '143 III., 127. Monongaliela Navigation Co. v. Coons, 0 W. & S., 101. Canal Co. v. Midliner, 68 Pa. St., 357. Selddn v. Delatvare Canal Co., 29 N. Y., 634. Bnrchardt v. Wausau Boom Co., 54 Wis., 107. The tendency of all the cases is so to construe the legislative authority a.^ to hold the corporation exercising the public fran- chise to the highest degree of care necessary to provide against all ordinary foreseeable harm. This was the doctrine provided by the Drainage Act. ^^This Act shall not be construed to authorize the injury or destruction of existing water-power rights.’^ Shall not authorize the injury,” — that is, the Drainage Dis- trict shall pay for whatever harm of a foreseeable character it may do to an existing water-power right. Shall not authorize the destruction,” — that is, the Drainage District shall not, without compensation, tear down the dam exist- ing at Joliet. ' WHAT WERE EXISTING WATER-POWER RIGHTs! Was there an existing water-power right in every detached piece of ri]iarian ])roperty for every foot of the lianks throughout the entire length of the Des Plaines and rilinois Pivers, which the Act forbade the Drainage District to make any manner of change in or interferen(*e with? If so, then the Act defeated itself and no Sanitary Dis- trict channel and navigable stream could ever be constructed under it. It plainly did not mean this. Why was the word existing ynit into the phrase ‘‘existing icater- poicer right sf^’ Plainly to distinguish water-power rights now existing, in the sense that they are in present use and enjoyment, from inchoate, undeveloped, unused, possible rights by owners on one side or the other of the stream to unite in creating a water-power herewith. 100 'riier(‘foro thei*e was no axistliig water-power ri^lit” in the de- la(‘lie(l parcel on one side of the stream within the Drainage Act. ( If this plirase in the statute existing water-power riglits'’ ('overed tlie jjossihle future water-power develoimient to be made hereafter by uniting witli owners on tlie other side of the stream: — then something else follows, viz: that the flowage (‘ontracts and leases in this case constituted a water-power lease. The language of the canal act is nmch broader. It author- izes the Chmimissioners 'Do lease from time to time to 'the highest bidder therefor any irntcr-porrer/' etc. (H. S. Ch. 19, Sec. 8, Cl. 6.) "Any water ])ower” in this statute is nmch more compre- hensive than "existing wnter-])ower rights” in the Drainage Act.) There was, in fact, no existing water-power developed at the site of this dam at the time of the passage of that Act and the pro])erty on tlie different sides of the stream was in the hands of different owners from a time before the Drainage Act was passed until after the drainage water was turned in. By the phrase "existing water-power rights” the legislature ])lainly had two objects in view: First, they intended to m-otect actual existing water powers such as were created by Dam No. 1 against uncompensated harm such as prior to the constitution of 1870 were held to be mere consequen- tial damages for which no recovery could be had. They were leg- islating to carry into effect the provision in the constitution that property shall not be taken or damaged for public use without compensation. They irere making the Act conform to the consti- tution. In using the phrase ^ Existing water-power rights,” they in- tended to prevent claims for compensation for water which was not there in the stream at the time the Act was passed. The Act contemplated the turning of 300,000 cubic feet per minute and more of water into the stream at public cost. The legisla- ture plainly intended that the pubic should not first pay the cost of turning the water in and then pay the riparian owner for getting the use of it back. ‘‘Existing mater-power rights” were to be compensated for so far as the work authorized by the Act 101 might iiitorrero with tliem and only ^‘existing watcn- powcn* rights wore to he so eoinpensated for.” Tliese were the reasons why the legislatni'e industriously and deliberately used the word ‘‘existing” in defining the eharaet(‘r ot‘ tlie water-power right whieh tliey intended to ])roteet. The ^‘existing water-])ower right” was the right in the owner at tlie- time the aet authorized to be done slionld be performed. TTie aet authorized to be done was the turning in of tlie drainage water and that was done January 17, 1900. The existing water- power right was the right existing in the man who owned the property January 17, 1900. He was given his remedy. When that owner sold the property at any time after that date, he sold it burdened with the altered condition and the grantee took it in its altered condition with the burden attached. Chicago ' & Alton R. Co. v. Maher, 91 111., 312. Chicago S Eastern Illinois R. Co. v. Loeb, 118 111., 203. Missouri V. Illinois and Sanitary List, of Chicago, 200 U. S., pp. 490 and 526. Troy V. Cheshire R. Co., 12 N. H., 83. The varying facts that one owner got his compensation before selling to Munroe while another one brought suit for it, which is still ])ending, and then sold to Munroe; — or composed his differ- ences with the Sanitary District and was ])aid in cash his compen- sation and then sold to Munroe; — or let it go without taking any conpiensation, ti'eating that as a negligible fador (and each of these hai)pened as to some part of the property) — would none of them constitute either any breach of the statute or confer any right upon Munroe or nt)on Munroe ’s subsecpient grantee. At most the recovery for such damages must be sought within five years after the cause of action accrued (E. S., p. 83, Sec. 15). The water was turned in January 17, 1900, and the defendant bought October 30, 1906, long after any reinedy for the perma- nent alteration in the face of nature had been barred by the stat- ute. 102 THE IMiOl’OSEI) (.’ANALS AKOUND THE TWO DAMS.* The suggestioii in tlie j-eport of tlie U. S. Engineers for 1904-5 of a (‘anal three miles long around tlie swift spot at Jefferson street bridge, 12 miles aliove the site of this dam; and another eanal three miles long at Marseilles around the (jrand Kapids of the Illinois and the Marseilles Dam, at a point 50 miles west of this i)oint and on the Illinois Diver did not emanate merely from snp])Osed difficrdties in navigation. Th.e report itself shows this, under the general head of ^‘Vested Eights,” (Hep., p]). 11-12). The Ernst Board of Engineers say: ”The stee]) slope of the Des Plaines Hiver and of the Illi- nois Hiver abo\ e Utica is favorable to the development of wmter power. Eights of this nature have accjiiired additional importance wdtii the recent increase in the discharge of the drainage canal, and will acquire still further imi^ortance with the further increase contemplated. An important water power has been developed hy 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 important water power is in use also at Mar- seilles. 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 suc- ceeded in doing this for all that are developed and probably also for those that are undevelo])ed. 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 economy in excavation and avoidance of overflow have been the guiding considerations. The best development of wmter power would no doubt in some cases call for a different arrangement. 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 diffi- culty in modifying it so as to conform to such development if those who are to benefit thereby will co-operate with the Government. They shoujd 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 improve- ment.” ^ lo:} The (lereiulaiit })iii iliai passages in (‘videnec; and allacli(;d grcial iinportaiu'e to it. It is in brief a staicnncnit that i-ights in (existing water power dams, whicdi were of niod(n*at(; valiui hefor(‘ the turning- in of tlie Drainage water ^Miave ae(iiiired additional ini- jxn'tanee witli tl^e recent increase in tlie di.'cliarge of the Drain- age Canal;” and tlie defendant asserts tha: this addition to the river of the Driiinage Water in iin addition to its private existing water power right, — invoking Druleij v. Adam therefor. Our reply to this, as appears elsewhere, is that in Druley v. Adam the court found that the water added by the Deep Cut had not been added for water power purposes, and therefore the Canal Commissioners could not take that water and sell it for water power, for which it had not been designed; while, as to the Drainage water, it was added for navigation purposes as well as for drainage. Navigation was writ large upon the face of the Joint Kesolution and Sanitary District Act; and that therefore, this Sanitary District water so added to the river was impressed with ])ublic uses for navgation before it was added and before tlie channel was dug; and it carried with it its public uses of navigation into the navigable Des Plaines, and cannot be taken for water power without the assent of the State. But our ])urpose now in calling attention to this clause in the re])ort is to show that the ])rop()sal for a canal three miles long around the Marseilles .Dam and another three miles long around the steep spot in Joliet and Dam No. 1, — is itself in i)art ins])ired hy the desire u])on the ])art of the Government Board of Plngineers to avoid injuring those two dams; and to avoid the possible ex- pense to the United States Government iiH'idental to interfering with those two dams. The two spots where the engineers pro])ose a short canal three miles long in each si)ot are the two spots where there are two dams. They would go around the two dams, — partly because there is a swift current tliere, and partly liecause there is a ‘Aested right” in an existing water power there. They would not go around the rest of the river, because there is no existing water i)ower anywhere else, — and that is true of Dresden TTei gilts. 104 XT. '11 IF. NAVKiA'I'lON CI.AUSF OF THE OHDINANCE OF 1787, AND THE STATUTES IN KF-FNA(ri’MEN r AND CONFIRMATION THEREOF, DEDK’ATED AND PRE- SERVED THE DES Pl.ATNES RIVER AS A HIGHWAY. 1 . SUMMARY^ OF LEGISLATION AND ACTION. Ordinance of 1787, Sec. 14, Art. IV, U. S. H. S., 2 Ed., 1878, p. 13. 1 Starr & Chirtis, 2 Ed., ]>. 42. Act of Congress August 7, 1789, entitled: “An Act to provide for the (jovernment of the Territory Northwest of the River Ohio.” I IT. S. Stat. at L., p. 50. 77 . 95 , Dec. 7 — Treaty of Greenville ceding right of free passage hy land and water “from tlie month of the Chicago to the commencement of the portage lietween that river and the Illinois and down the Illi- nois River to the Mississippi.” 1 Am. St. Papers, V ol. IV, Chap. 2, Indian Affairs, Vol. I. 2796, May 18 — Act of Congress providing for sale of lands in Northwest Territory. Sec. 9. All navigable rivers within the ter- ritory to he dis])osed of hy virtue of this act shall he deemed to he and remain public highways. 1 Stat. at L., Chap. 29, p. 468. 180i, March 26 — Act of Congress making jirovision for the dis- posal of the public lands in Indiana Territory. Sec. 6. All the navigable rivers, creeks and waters within the Indiana Territory shall be deemed to he and remain public high- ways. 2 U. S. Stat at L., Chap. 35, p. 279. ISO!), Eel). 3 — “Act for dividing Indiana Territory into two sepa- rate governments. Sec. 2. The inhabitants thereof shall he entitled to and enjoy 105 all and siiii>iilai' the rights, privih'gc's and advanlag(*s gfant(nl and stviired to the |)eoi)le ot* the Territory ol‘ tlie lJnit(‘d States North- west of the River Ohio by tlie said ( )rdinan(*e. ” 2 U. S. Stat. at L., p. 514. 1 Starr & Curtis, 2 Ed., p. 40. IS^G. The Pottawattoinie Treaty of Black Partridge ceded to tlie United States a tract of land ten miles wide on each side of the Des Plaines. 7 IT. S. Stat. at L., p. 146. (This is the first official use of the name Des Plaines.) 1818, April IS^The enabling act for admission of Illinois. 3 U. S. Stat at L., p. 428. Sec. 4. ‘‘The same whenever formed shall be re]mblican and not repugnant to the Ordinance of the 13th of July, 1787 * * * ? > 1 S. & C., 2 Ed., p. 51. 1818, Aug. 26 — Constitution of Illinois. Preamble. 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, etc. * do * * ordain and establish the following constitution. 1 S. (S: C., 2 Ed., p. 55. 1818, Dec. 3 — Resolution of Congress of Illinois by its new con- stitution “which constitution and State government so formed is republican and in conformity to the ])rin(*iples of the articles of compact between the Original States and the ])eople and States in the Territory noilliwest of the River Ohio jiassed duly 13, 1787.” 3 U. S. Stat. at L., p. 536. 18‘i8, Dec. 4 — Message of Governor Duncan to Illinois Legisla- ture quotes the Ordinance, Sec. 14, Art. IV, and says: “Those two rivers, the Wabash and Illinois, are recognized to be the waters alluded to.^’ 111. Senate Journal, '1838-9, p. 12; Abst., p. 1066. Use of tlie Dos Plaines and Illinois prior to the ado])tion of this Oi’dinaiK'e and sn))se(inently. See Division I Ilistorieal Proofs assend)led.' 77/e MoufeUo, 20 Wall., 420 — opinion by Mr. Justice Davis. 2 . THE ORDINANCE AND THE HEGTSLATTON IN CONFIRMATION THEREOF MUST BE CONSTRUED ACCORDING TO ITS HISTORY AND INTERPRETED ACCORD- ING TO THE MEANINGS THEN GIVEN ITS TERMS. Board of Works v. The United Telephone Co., 13 Q. B. D., 914. A rented Bread Company v. Gregg, L. K., 8 (^. B., 355. Massey v. Dunlop, 146 Ind., 358. Sharp V. Wakefield, 22 Q. B. 1)., 242. Gaslight, etc., Co. v. Hardy, 17 Q. B. 1)., 621. Grisirold v. Atlantic Dock Co., 21 Barb. (N. Y.), 228. Mobile V. Eslava, 16 Pet. (IT. S.), 234. Ponchartrain B. Co. v. Lafayette^ etc., B. Co., 10 La. Ann., 741. Morris Canal, etc., Co. v. State, 24 X. J. L., 62. Commonwealth v. Erie, etc., B. Co., 27 Pa. St., 353. People V. Hinrichsen , 161 111., 223. State V. Atlantic City, 56 X. J. L., 232. THE HISTORY OF TFIE TIMES WHEN THE ACT WAS PASSED^ THE SITUATION OF THE COUNTRY AT THE TIME OF THE PASSAGE, AND CONTEMPO- , RANEOUS EVENTS AND CIRCUMSTANCES WITHIN THE VIEW AND ATTEN- TION OF THE LEGISLATURE SHOULD BE CONSIDERED IN GIVING INTER- PRETATION TO THE STATUTE. U. S. V. Union Pack. Co., 91 U. S., 72. U. S. V. Wilson, 58 Fed., 768. Holy Trinity Church v. U. S., 143 U. S., 457, at 463 et seep U. S. V. Oregon, etc., B. Co., 57 Fed., 426. State ex rel. v. No. Pac. B. Co., 30 La. Ann., 980. Keyport, etc.. Steamboat Co. v. Banners’ T. Co., 18 X. J. Eq., 13. Fairchild v. Givynne, 16 Abb. Pr., 23. Story V. N. Y. E. B. Co., 3 Al)b., new cas., 478. 107 And it is dhodeii to consideh the whole oe 'imie si'M iJ^rE and the I’HEAMBl.E AND J’HOBABI.E INTENTION OE THE LEOIST.ATIJHE. Holbrook V. Holbrook, 18 Mass. (1 Pick.), 248. (Act of 1708 oil ])laii for city.) Furman v. Citi^ of N. Y 5 Sandf., lO. Ferrif Co. v. Jefferson Co., 04 111., 214. People V. Fidelity d Casualty Co., 153 111., 25, at 35. Cruse V. Aden, 127 111., 231. Steamboat navigation was not invented until twenty years after the passage of that Ordinance. Internal navigation at that time was by batteanx, Durham boats, Mackinaw boats and canoes. 1807, Ang. 7 & 8 — Robert Fulton made the first steamboat voyage. The change in the art of navigation twenty years after the Ordinance was passed did not change the meaning of the Ordi- nance. 3. The Ordinance has a triple aspect: — 1. It is a dedication of the stream as a highway by the United States of America, which was the })roprietor of the stream. It owned the entire area by deed from Virginia which owned it by coiKjuest made by George Rogers (Mark. 2. The Ordinance is a compact among the States respecting the use of that highway and solemnly agreeing that the highwa}^ shall forever be ju'eserved. It is on the same footing as the compact between Virginia and Ohio which was enforced by the Supreme Court in the AVheeJing Bridge case, 13 Ho^., p. 518. 3. It is a ])iece of legislation enacting a law that this highway shall forever be preserved. The attem])ts to get rid of (2) the compact and (3) the leyisla- iion, leave in full force and effect (1) the dedication of the high- way. 108 4 . tiil: failure of tfif contentions contra to reach the subject. 1. 'l1io OrdinaiiRo was re-enacted by a Congress August 7, 1789, l)y the act ])assed ^Mn order tliat the Ordinance may continue to have full effect” by the Treaty of 1795 and ])y the acts of 1796 and 1804 ex])ress]y estalilishing and preserving the water highway. 2. liven if the Ordinance were not binding on Illinois and Illi- nois liad the ])ower to repudiate it, its effect as the dedication of a highway l)y the proprietor would remain until it was expressly repudiated and that has never occurred. Illinois has never vacated the dedication. 5 . The cases in the supreme court of the united states relied on AS ADVERSE TO THE ORDINANCE AROSE DURING THE ANTI-SLAVERY CON- FLICT AND WERE INSPIRED BY THE PURPOSE OF ABROGATING THE ANTI- SLAVERY CLAUSE OF THE ORDINANCE, So far as they touch the navigation clause they consist of cases concerning bridges and dams authorized by State legislation and which the court says are not forbidden by the Ordinance. All else in those cases is extra judicial in origin. 6 . The contentions contra reviewed. First contention contra : That the Ordinance is not binding because Illinois was admitted on an ecpiality with the Original States and so could not be bound by a compact not applying to the Original States. Ileply : 1 . The Original States themselves were bound by the Ordinance the same as the new territory. Therefore ‘‘equality” is pre- served. It was a regulation of commerce and “therefore as binding on the other States as on Alabama.” (3 How., 212.) 2. Exact and literal equality was not intended and is impossible.- 109 Equality and rank and S()ver(‘i.i>’nty is inicnidcMl and is not innoin- patihle with the navigation (‘laiise oi* the ()rdinan(‘(;. 1 iMehean, d-tddUO. Second contention contra. That the Ordinance does not bind Illinois ])ecanse it was not voluntarily adopted by her after she became a State in the Union. Eeply : 1. This assumes that the Ordinance had ceased to be binding, which is a begging of the question. 2. The enabling act required that the new State constitution should be not repugnant to the Ordinance of 1787, and the new constitution recited that the jjeople ^Oiaving the right of admission consistent with the Ordinance of 1787 ordain the following con- stitution.” And the resolution of December 3, 1818, by Congress recites that the constitution is ^Cn conformity to the principles” of the Ordinance. This* is a voluntary adoption by the State and a ratification by Congress. 3. The State in its earliest decision on the navigation clans, e expressly decided that it was in force. This was a declaration of its law and policy and made the law for the State on the subject. People V. City of St. Louis, 5 Oilin., 351. The Court there said: ‘‘This guaranty (of the Ordinance) of rights to the citi- zens of other States although made before the creation of any of the States through or between which it flows, may he construed precisely as if it ive're a^ grant made subsequent to or at the time of their formation.’' Third contention contra: That the Ordinance was passed by the old congress of the Confederation wliicli ceased to exist; that it wns not an act of the y)resent congress and of the Constitution of 1789 and therefore has no vitality. Reply: 1. The a(‘t of August 7, 1789, “In ordei* that the Ordinance may continue to have full effect,” was by the new Congress. (IT. S. 1 St. at L., p. 50.) 110 2. The Treaty of (ireeiiville, the act of May 18, 1790, and the Act of Marcli 20, 1804, declaring that all the streams in the Terri- tory should remain public higliways and providing for the sale of the lands on that basis, were Acts of the new Congress. M. The Act of Fe])ruary 3, 1809, setting aside the Illinois Terri- tory and ])roviding that its inhalhtants shall he entitled to and enjoy all the rights, privileges and advantages secured by said Ordinance” is a reaffirmation of it by the new Congress. (2 U. S. St. at L., 514; 1 Starr & Curtis, 2 Ed., 49.) 4. These were Acts regulating interstate commerce. They were Acts by the new government dealing with its own property. And they were acts in the exercise of the power conferred by the United States Constitution, Article 4, Sec. 3, Clause 2, viz: ^^The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” (1 Stari; & Curtis, 2 Ed., p. 34.) 5. No political change in the government annuls its valid exist- ing compacts. 1 McLean, 345. This is universally true as a rule of public law. Hall International Law, 3d Ed., p. 96. Woolsey International Law, Sec. 38. And it is the law of the United States. 1 AVharton’s International Law Dig., Sec. 137. 1 Moore’s International Law Digest, Sec. 96. 7 . KEVIEW OF ILLINOIS CASES ON THE ORDINANCE OF 1787. EARLY SLAVERY CASES. 1828 Phoebe v. Jay, 1 111. (Beecher’s Breese), 268. ‘‘The ordinance is no doubt still binding upon the people of this State unless it has been abrogated by common con- sent. ’ ’ Territorial legislation and provision in Constitution of 1818 on servants held such common consent as to the slavery clause. Ill This is roaflirined in tlio fol lowing’ : 18dh Ndiicc V. lloH'did, Ibid., 242. 182() Choisscy v. Ilargydve, 1 Seam., 217. 18o() lu)()}/ V. duliet, 1 Seam., 217. 1842 Sdrdh v. Boydets, 4 Seam., 241. Fourth eontention eontra: It lias been held that the ordinanee did not forbid physical ob- strnetions.” This dam is only a physical obstruction. Therefore it is not forbidden by the Ordinance. Keply — What was held in respect to physical obstructions was that the Ordinance did not forbid the States from authorizing physical obstructions. It declared the highway ‘^insured a highway equally open to all, without preference to any,” — and it left the matter of physical obstructions to be (a) authorized, (b) forbidden and (c) prose- cuted and (d) policed by the State. This dam is a physical obstruction which is not authorized by the State; and the State is prosecuting its remedy against the same by this suit. See Review of Federal Cases, infra. See Life of Edward Coles, second Governor of Illinois, by E. B. Washburne (Chicago, Jansen, McClurg & Co., 1882) and His- tory of the Ordinance of 1787 by Governor (^oles, Phila., 1856. 8 . EARLY ILLINOIS CASES ON THE ORDINANCE OF 1787 OTHER THAN SLAVERY CASES AND OTHER THAN NAVIGATION CASES. 1822 Acldess v. Seekright, Beecher’s Breese, p. 76. Ordinance applied and enforced as to a territorial will. 1837 McConnell v. Wilcox, Ordinance treated as binding in land title cases of Beaubien to site of Ft. Dearborn and held not violated by Illinois legislation. McConnell v. Wilcox, 1 Scam., 344, at 375-7. 1841 Fenny v. Little, 3 Scam., 301. 111 > Ijaiulloyd’s Rlglit to Distrain Jlcld Preserved hij the Ordinance of 1787 and Therefore to be Laiv in Illinois in ]841. 18()8 McM'urphy v. Doyles, 49 ill., 110 (Ijawrence^ J.). 10-()visi()]i of tlio Oi'diiiaiiee on Avidow’s ,sbai*e of personal estate held in fovee. 1879 People ex rel. McCrea, Collector, v. U. S. of America, 93 111., 30. Kxein])tion of federal property from State taxation contained in the Ordinance and considered. The exemption found to exist on other grounds. 9. XAVIOATION CASES UNDER THE ORDINANCE OF 1787 IN ILLINOIS. 1848 People v. City of St. Louis, 5 Gilm., 351. Ordinance held in force in Illinois and adequate to pro- tect the tilling u|) of the narrow eastern channel of the Mississippi between Bloody Island and the Illinois shore. 1865 Illinois Diver Packet Co. v. Peoria Bridge Assn., 38 111., 467. Ordinance cited and interpeted by Breese, J., concluding: ‘Ot is unnecessary to decide the question whether this Ordinance is in force or not.” 1869 City of Chicago v. McGinn,, 51 111., 266. Bridge ordinance of City of Chicago held not a violation of the ordinance. Ordinance held to prohibit tax or duty or total obstruc- tion by a dam. 10 . RECENT ILLINOIS CASES UPON THE ORDINANCE OF 1787. 1895 People v. Thompson, 155 111., 451. The apportionment act of June 15, 1893, for. senatorial dis- tricts held ATilid. The apportionment clause of the Ordinance of 1787 lield not in force in 1893. (The Ordinance expressly ])rovided by its own terms that some of its provisions should be tenqiorary and some perma- nent. The provision on proportional representation Avas sub- je(‘t to llio riii‘ili(‘r provision Hint lli(‘ iinnilxn- of r(ipr(iS(*nta- tivos sliall anionnt to 2;"), after which the naiHher and propor- tion of representatives shall he rcfjnlated hp the lepislatiire. It nocossarily followed tliat tlie early clause was not in forc(^) 1897' Dixon v. The People, 168 111., 179, liolds that the clauses on forming the tem])orary bill of riglits in the Ordinance are not in force, and finally says: ^^Tlie Ordinance of 1787 is not in force in the State of Illinois.’^ This expression was inadvertent repetition or quotation from some Federal cases. The old bill of rights had been ^dibrogated by common consent and the new bill of rights had tajken its place. They are almost identical in word- ing and are identical in meaning and the Constitution on this subject was a re-enactment of the Ordinance.’^ 11 . FEDERAL CASES ON TPIE ORDINANCE OF 1787. 1838 Spooner v. McConnell, 1 McLean, 337; 22 Fed. Cas. No. 13245. Injunction to prevent Ohio Canal Commissioners from dam- ming, and using water of, the Maumee. Ordinance specifically held to be in force. 1843 Palmer v. Commissioners of Cupahoaa County, 3 MevLean, 226; 18 Fed. Cas., 10688. Decision in Spooner case reaffirmed. Drawbridge held no violation. 1845 Permoli v. Jst Miniicipality, 3 How., 589, holds by dictum Ordinance of 1787 inoperative in consecpience of the admis- sion of new State on ecpial footing with original States. Note: — This decision related to territory outside the original Northwest Teriltory, viz: of Louisiana, and was hy its terms not aiiplied to the Northwest Territory* or States carved therefrom. It construed the act of 1805, Chap. 83, which secured to the inhabitants of Louisiana the benefits of the Ordinance. The case turned on the clause concerning the free exercise of religion (Article I of the Ordinance; 1 Starr & Curtis, 2 114 ]). 44) and t(‘st(‘d the validity of a city ordinance forbid- ding’ tli(‘ carrying*' of dead bodies at j)nblic funerals into (‘lini’clies, which it sustained as a health measure. The gen- (‘ral ])rin(‘i|)l(*s of i)olitical liberty recated in the Ordinance were held abrogated by coimnon consent, and tiie similar re- citals in the State 'Oonstitution under which the State was ad- mitted, held substituted therefor. 1845 Pollard v. Hagen, 3 How., 21 ll, construes the navigation clause of the enai)ling act for Alabama as not determining the title to shore |)ro|)erty in Alabama, and holds that the naviga- tion clause of the Ordinance is not inconsistent with the Oon- stitution and that its ]*e-enactment in the enabling act for Alabama is valid as a regulation of commerce among the sev- eral States, ''and therefore as binding on the other States as Alabama.” 18(;(i Bates v. Broirn^ 72 U. S. (5 Wall.), 710. The U. S. Supreme Court here held that the rule of common law, commonly called the rule of shifting inheritance, is not in force in Illinois, and the reason assigned is that the Ordinance of 1787 had provided a different rule. It amounts to a holding that the provision of the Ordinance of 1787 on this subject was in force in Illinois until altered by State legislation. 1850 Strader v. Graham, 51 U. S. (10 How.), 82; Error to Ky. Bill against owner of steaml)oat for aiding the escape of slaves and for lien on boat therefor. Decree upheld the lien in Kentucky. IVrit of error dismissed by the U. S. Court for want of jurisdiction. Plaintiff in error claimed b}^ virtue of the slavery provision of the Ordinance of 1787 that the decree was erroneous. Tenet, C. J., proceeded to state that this provision of the Ordinance was not in force. ]^[cLean, d. In a separate opinion agreed that the writ of error was properly dismissed for want of jurisdiction ^Cind anything that is said in the opinion of the court in relation to the Ordinance beyond this, is not in the case and is consequently extra judicial.” Catron, J., i^rotested that while the slavery question was a (luestion for State legislation and regulation, the navigation clause of the Ordinance stood on a different footing and that the dictum of the court if aiq)lied to that navigation clause “might be disregarded by the State Courts as obiter and a dictum uncalled for. For thirl g gears the State Courts u'ithin the territorg ceded bg Virginia have held this parV of (li(> I OK I III (I r dele to l)c in fovea and hividinfj on Huan vvspaciiv(di) and I feel annnlliyuj lo disfiirh this irliolesonie eonrse of decision ivhich is so conservative of the rights of others, i}i a case u'here the fourth article is in noivisc involved/’ Strader v. (irahavi belongs to the same category as tlie Dred Scott case decided by the same Chief Justice (19 How., o9o) six years later (Marcli 6, 1857). Both contained the same kind of obiter dicta. The opinion of the American Bar on the Dred Scott case “is to the effect that the court after holding upon con- sideration of the plea in abatement that Dred Scott was not a citizen of the United States and that therefore the Circuit Court had no jurisdiction, ought to have dismissed the case without entering upon the consideration of the second question involved, and that in so doing they tran- scended the principal bounds of judicial authority and indulged in mere obiter dicta of no legal validity or con- clusiveness.” Carson’s History of the Supreme Court of the U. S., pp. 370-371. The name of the case being changed, the same criticism holds true of Strader v. Graham. Abraham Lincoln held the Ordinance of 1787 to be in force. 2 Lincoln’s Collected Works, pp. 549-50. Mr. Webster, in his reply to Hayne and remarks on the Uoote resolution, held the Ordinance of 1787 to be in force and ])ermanent in effect. 3 Webster’s Works (Little & Brown 1851), pp. 203-4. 1853 Jollg V. Terre Haute Drau'bridge Co., 0 McLean, 238. Leavitt, Dist. J., reaffirmed the decisions in 1st and 3rd McLean. 1854 Columbus Insurance Co. y. Curtenius, 0 McLean, 209, ])rotests against the new decision in Strader v. Graham. 1874 The Montello, 20 AVall., 430, holds the Ordinance in force in Wis(‘onsin. 1807 Woodman v. Kilbourn Mfg. Co., 1 Bissell, 540. Held that the erection of a lock and dam across the Wiscon- sin River, with ])rovisions for navigation in conformity to a statute authorizing the same, was not niK'iinstitutional or in violation of the ordinance or statute admitting AVisconsin to the Union. (Per Davis, J., and Miller, I). J.) 1877 Pound v. Turck, 95 U. S., 459. Action for injury to a raft going down the Chippewa by defendant’s dam. Defendants showed that they had the au- thority of a special act of the AA^isconsin Ijegislatiire (AVis. Pr. Ij., IS;-)?, 1). 5:]8) for jiiaiiitainiiig the dam; tliat tlie aet had suitable protecdioiis for navigation and tliat they had eoinplied with th(‘ a('t. Tlie aet was lield valid. .1882 Kscundha Company v. Chicayo, 107 II. S., 078. Bridge ordinanee of Chieago i-egnlating opening and clos- ing of drawl)ridges over Chieago River upheld. Tlie decision holds both (1) that the Ordinanee is not in force, because the State became e((ual with the other States, and (2) that a drawbridge across the river does not violate the Ordinance. Point ('!) was on the authority of Strader v. Graham^ and l^oint (2) on that of Palmer v. Commissioners of Cuyahoga County, 3d McLean, 226. This case, therefore, may be harmonized with each of those. This is the first complete formulation of the ‘‘equal foot- ing’^ doctrine as amounting to an implied abrogation of the Ordinance. But the Ordinance bound the other States equally with the new 'State and was expressly held to do so in Pollard V. Hagan, 3 How., 212. As a regulation of commerce, the new acts l)y the new Government confirming the Ordi- nance bound all the States alike, in the same way as the com- jiact between Kentucky and Virginia which was ratified by the Act admitting Kentucky (1 U. S. Stat. at L., p. 189). This Act ratifying the compact concerning the navigation of the Ohio was a regulation of commerce and as such upheld in the Wheeling Bridge Case (13 How., 518). The same reasoning sustains the navigation clause of the Ordinance of 1787 also. The validity of the compact was re- affirmed in Missouri v. Illinois, 200 U. S., 496, at 519. 1883 Diduth Lumher Co. v. St. Louis Boom Company, 17 Fed. Rep., 419. Millee, J., orally, held that the Ordinance of 1787 did not apply to the St. Louis River in the eastern part of Minnesota, saying — “We have long ago decided that the original Act con- cerning the Northwestern Territory ceased to be of any force, etc.” The contention had been made that the Ordinance forbade the chartering of a boom company. Miller, J., dismissed this quasi in furore, by a decision which was perfectly correct, accom- panied by dicta which were unwarranted and mistaken. 1884 Willamet I. B. Co. v. Hatch, 19 Fed. Rep., 347. On l)ill of review from original decree in 6 Fed. Rep., 326. De.vdy, j., holds that the navigation clause in the Act, ad- mitting Oregon was valid as a regulation of interstate com- 317 inerco and was horrowod iVorn tlie Oi-dinaru'o of 1787; that that Ordinaneo had been ratified by the first Congress under the C/Onstitution (1 Stat. at L., p. bO), and was binding as a eoininereial regulation, and that a proposed bridge across the Wallaniet Kiver at Portland was in violation thereof. Circuit Judge Sawyeh concurred, following the Wheeling Bridge Case and referring the parties to the Legislature for authorization. On the hearing of the bill of review the court adhered to its original ])osition and quoted the opinions of Justices McLean and Catron in the Strader Case as correctly suggesting that the opinion of the majority was uncalled for as an obiter dictum. Deady, J., said (p. 359) : therefore, respectfully submit that the clause in the fourth article of the compact in the Ordinance of 1787, relating to the navigable waters in the Northwest Terri- tory, having been enacted by Congress (1 St. 50) was a valid commercial regulation as to the navigable waters in said territory or the states afterwards formed therein until repealed by it, and therefore it is still in force in Illinois. . But be this as it may, the decision does not touch the question of the validity or force and effect of the Act of 1859. For on what possible ground can it be claimed that the admission of Oregon into the Union set aside or super- seded an otherwise valid clause in the very iVct of ad- mission, declaring the navigable waters of the future State ‘common highways?’ ” Judge Deady insisted that a low solid bridge without a draw violated the ()rdinan(*e, but a suitable drawbridge did not. 1887 Willamette I. B. Co. v. Hatch, U?5 U. S., 1. This decision reverses that of Judges Sawyer and Deady in the last })receding case. » Jn the statement of the case the court mentions that — “On the 18th of October, 1878, the Legislature of Ore- gon i)assed an Act entitled ‘An Act to authorize the con- struction of a bridge on the Willamette Eiver, etc.’ ” — and proceeds to state that the bridge in question was built under this authority. Bradley, J., concedes it to be the correct view that the navi- gation clause of the Ordinance of 1787 as re-enacted in the legislation of the new Congress under the Constitution of 1789, is valid legislation as an exercise of the power to regu- late interstate commerce, and then holds that such valid regu- lation does not prohibit physical obstruction, but only the 118 iin|)()sirK)ii of duties for the use of tlu; navigation and in dis- (u-iinination, denying to the eitizens of other States the equal rigid 1o use th(‘ navigation, and that it leaves the States with ])ower to autliorize the ereetion of bridges and dams on sueh streams. ‘‘77/e clausa iu question cannot he regarded as estab- lish iug the police power of the U)(iied States over the rivers of Oregon^ or as giving to the federal courts the right to hear and detennine, according to federal law, everg co)n])laint that mag be made of an impediment in, or an encroachnient upon, the navigation of those rivers. “We do not doubt that CV)ngress, if it saw tit, could thus assume tlie care of said streams, in the interest of foreign and interstate commerce; we only sag that, in our opinion, it has not done so by the clause hi question.’’ (p. w>.) AVliile Bradli:y, »J., re})eats some of the dicta of Strader v. a rah am, the deciding portion of the case is entirely in har- mony with the position that the Ordinance is in force. He says (p. 10) : “(Conceding this to he the correct view, the question then arises, what is its fair construction?” He answers that it is in force to prohihit duties or discrim- inations upon the use of the navigation. This is sufficient for the purposes of the State. It con- cedes that there is a valid dedication of a highway which is still in force, but declines to give it federal policing, turning that over to the State authorities. And for that reason this case was brought in the State court. 1884 Cardwell v. Bridge Company, 113 U. S., 205. Bill to remove a bridge over American liiver in California. Dismissed on demurrer. Decree affirmed alcove. In the statement of the case it is said (p. 205) that — “The defendant was a' corporation organized under the laws of California, and, pursuant to the authority con- feri'ed l)y an Act of its Legislature, had' constructed a bridge, etc.” The opinion here is ambignons. It asserts (1) that the “equal footing” doctrine is an abrogation of the Ordinance and of the repetition of it in the Act admitting California, and (2) that the bridge in question does not violate the pro- vision. It concludes with the Escanaha Case and says (p. 212) : “TLe there held that a bridge constructed iritli a draw could not be regarded within the Ordinance of 1787 as an obstruction to the navigation of the stream. We irere 119 '}ioi i'('(jifirc(/ to <\rj)r('ss (in// fuilhor opnuon os to tin, uironinf/ of the Ordutonce.” ^ (Aliy thing said in that (‘ase beyond this is only a, (Iwl/iini.) '"hut upon uKifurc (did carofid consid('r(iti()}i, * * Wc (in' of opinion ilidt, if irc triuit the (:kdis(', as divisitjl(' into tiro provisions, tlu'y must t)e constriKut torjether as having but one object, nanudg, to insure a highwag equallg open to all ivithout prefenmce to ang, and unofj- structed bg duties or tolls, (dul thus piuwent the use of the navigable streams by private parties to the exclusion of the public, and the exaction of any toll for their navi- gation; and that the clause contemplated no other restric- tion upon the poiver of the State, etc.” 1885 Van BrocMin v. State of Tennessee, 117 U. S., 151. The court here held that property situated in .Tennessee, owned l)y the United States for the purpose of carrying on the Federal Government, is exempt by the Constitution of tlie United States from State taxation. Incidentally, Gkay, J., rehearses the history of the organ- ization of the Government, the Articles of Confederation, the Ordinance of 1787 and nnmerous Acts admitting States into'^ the Union. Incidentally, he quotes without application the remark from Strader v. Graham, that the Ordinance of 1787 ceased to be operative after the admission of the State into the Union. ]88t) Ilainilton v. Vicksburg , (dc., B. R., lU) U. S., 280. Here the court, pei- Field, d., ipiheld the constitutionality of an A(*t of Arkansas authorizing a bridge over Bouft River, a tributary of the Ouachita, and reiterated the statement in the (Uirduadl Case that the object of the navigation clause' of the Act admitting .Arkansas was ”to insure a high wag (Ujuallg open to all irithout preference to any, and unobstructed by duties or tolls” (]). 285), and that the clause contenqilated ^‘no other restriction upon the power of the State in author- izing the construction of bridges,” ete*. (]). 285.) 1880 JIusev. Glover, 119 U. S., 542. Aiipeal from the Northern District ot‘ Illinois, 11 Bissell, 550. The court here iqiField the validity of the Illinois statute of February 28, 1867, for canal and river im])rovements (Stead’s (Imal Coni])., ]). 158; B. 1807, ]■). 81), authorizing the ('onstruction of a lock and dam in the Illinois River, and the Act of March 7, 1872 (Stead’s Canal Comp., ]). 152; 1 j. 1871-2, ]). 215) authorizing the canal ('ommissioners to collect a toll for the nse of the lo(*k and dam. There the comolainanis sought to enjoin the canal commis- sioners from collecting the toll. .120 Tlie coiii't Jiuld that this Jegislatioii authorizing the im- provoineiit of tlie river and the charging of the toll for tlie im- provement was not a violation of the Ordinance. Harlan, d., delivered the opinion at the Circuit and de- clined to hold that the Ordinance was not in force, saying: ‘‘The utmost, i)erhaps, which can be claimed is that the provision tvas intended to secure the use of such navig- able streams as highivays upon terms of equality; that is, without disc]*imination against inhal)itants of that terri- tory or citizens of any of the United States.” 110 U. S., 550, the court affirmed this, the opinion being by Ujeld, J. After re])eating liis holdings in the Escanaba Case, both that following the dictum of Taney, C. J., in Strader v. Graham, and that which held that the Ordinance was not violated by statutes and ordinances of the State authorizing bridges and improvements, he reiterated his decision in the Cardivell Case that (pp. 547, 8) : “Its (the Ordinance’s) object was to preserve the rivers as highways equally open to all persons without preference to any, and unobstructed by duties or tolls. * * As thus construed the clause would prevent any exclusive use of the navigable waters of the State — a possible farming out of the privilege of navigating them to particular individuals, classes or corporations, or by vessels of a particular character. * * * The provision of the clause that the naviga- ble streams should be highways without any tax, impost, or duty, has (mark the present tense, treating it as still in force) — reference to their navigation in their natural state. It did not contemplate that such navigation might not be improved by artificial means, by the removal of obstructions, or by the making of dams for deepen- ing the waters, or by turning into the rivers waters from other streams to increase their depth. For outla 5 ^s caused by such works the State may exact reasonable tolls.” 1887 Sands v. Manistee River Improvement Co., 123 U. S., The plaintiff was a corporation authorized by a statute of the State and by the assent of the Governor and Attorney General and the permit of a Board of Control of the State of Michigan, to improve the Manistee Eiver by removing obstacles, cutting new channels and confining the waters of the river by embankments. The plaintiff having obtained this lawful authorization un- der a statute of the State and the specific approval of the Governor, the Attorney General and the Board of Control, had constructed its works. 121 It was authorized by the statute to eolleet tolls lor the use ot* the iiuproveiuents only. The deteiidant made use oi* the iuiprovements and refused to pay the tolls, claiming that the ordinance of ,1787 exempted him therefrom. The court said (p. 295) : “The Manistee Eiver is wholly within the limits of Michigan. The State, therefore, can authorize any im- ]:)rovement which in its judgment will enhance its value as a means of transportation from one part of the State to another.” Mr. Justice Field proceeded to state in emphatic form the “equal footing” doctrine as an abrogation of the Ordinance. These remarks of his were subject to the same criticism which he himself made in the Cardicell Case upon his dicta in the Escanaha Case. Field, J., realizing this, went on to decide the case thus (p. 296) : “But, independently of these considerations, there is nothing in the language of the fourth article of the ordi- nance * * * which, if binding upon the State, would prevent it from authorizing the improvements made in the navigation of the Manistee Eiver. * * * Por out- lays caused hy such works the State may exact reason- able tolls. * * * By the terms tax, impost, and duty, mentioned in the Ordinance, is meant a charge for the use of the government, not compensation for improve- ments.” 1892 M anon fj all ela Nav. Co. v. United States, 148 IT. S., 312. A condemnation case by which the federal government ac- quired the locks and dams of the Monongahela Navigation Company. The court upheld the statutes of the State author- izing that company to construct such locks and dams, and their existence as lawful property when constructed under such authorization. 1893 Shively v. Boivlhy, 152 U. S., 1, at 26, 33, 34. A most interesting case on the title to lands along the Columbia Eiver below high-water mark, cited hei-e because the Ordinance is cited on page 26, and the holding is repeated on pages 33 and 34 that it did not prohibit the States from authorizing improvement of streams. 1905 Manigaidt v. Springs, 199 IT. S., 473. The State may authorize dams across interior streams. A bill to enjoin the defendant from damming Kinloch Creek under a statute authorizing the same was dismissed. (123 Fed. Eep., 700; and this is affirmed.) The case rehearses the doctrine of the American Bridge 122 Coinj)(Utij Case, 112 IJ. S., and reiterates that the right of nav- igation and the right of bridging are of equal dignity and value. The Conclusion of the Bridge Cases. That the clause in the legislation re-enacting. the navigation clause of the ordinance is in force; that it dedicated a high- way; that it prevents private parties from excluding the pub- lic from tlie use of the streams to which it referred; that the States cannot impose duties, tolls or discriminations, but that tlie power of the States to authorize structures is not otherwise restricted. The Cardirell Case clearly affirms the continuing vitality and validity of the ordinance and its prohibition against a private dam or bridge unauthorized by the Legislature of the State. The bridge in the Cardivell Case was authorized by a Spe- cial Act of tlie California Legislature. Therefore the Lederal Court declined to interfere. The cases seemingly contra to the Ordinance which directly deal with the navigation clause, beginning with the Escanaha Case, 107 U. S., down to tlie latest, in 199 L. S., are all of them cases where the State had by statute authorized a liridge or a dam, or where the suit was |)rosecuted by private par- ties in the Federal Court without going to the State court in which jurisdiction of the policing and control of the streams was vested; and the Federal Court held that the Ordinance or Enabling Act was not \iolated hy such State legislation; or that it did not have jurisdiction of the subject. Several of them repeat the dictum of Taney, C. J., in Strader v. Graham, but they all place the decision of the case upon the ground that the legislation of the State authorizing the improvement does not violate the Ordinance or Enabling Act. and most of them repeat the emphatic language of Field, J., in 113 IT. S., 205, that the object of the Ordinance is “to insure a highiray equally open to all nnUiout preference to any, and nnohst meted hy duties or tolls, and thus prevent the use of the neivigahle streams hy private parties to the ex- clusion of the pnJdic, and the exaetion of any toll for their navigation ; and that the clause contemplated no other restric- tion upon the poirer of the State in authorizing the construc- tion of bridges over them mhenever such construction irould promote the convenience of the puhlie.” (P. 212.) The defendant here has no such authorization from the State. On the contrary, the legislation of the State December 0, 1907, is legislation ordering the removal of such dams and obstructions, and forbidding their erection. These cases are so many authorities upholding the ])lenary power of the State to protect its navigation. X I 1. NO OR APPROVAL OP THIS PROPOSKl) DAM WAS PVPIi (iRANTPD IJV EITHER STATE OR PEDERAL GOVERNMENT. IT VIOLATES THE ACT OF CONGRESS OP M;ARCH 3, 1899, REQUIRING SUCH PERMIT AND APPROVAL. (30 U. S. Stat. at L., 1157; 3 U. S. Comp. St., p. 3540.) The War Department declined to give any permit therefor. Letter of Acting Secretary of War (Ahst., p. 1301). Testimony of Gen. McKenzie, Chief of U. S. Engineers (Abst., pp. 175, 280). The State desires this question specifically ruled upon and prays leave to make the following additional assignment of error upon the record, and that the same be now considered as allowed and tiled, viz. : Additional Assignment op Error. The court erred in not holding that said ])roposed dam and works of defendant were unlawful and in violation of the Act of Congress of the United States enacted March 3, 1899, entitled ^Wn Act making aiiiiroipriation for the (*onstrnction, repair and lireservation of certain ])nblic works on rivers and harbors and for other purposes (L. S. St. at L. 1898-1899, Ch. 425, p. 1121, Se(‘. 9 at 1 ). 1151), and the Aids amendatory thereof.” DIVISrOxN FOUR. Fhrors by the Trial Court. T. ERRORS IN THE DECREE. Tlie assigHiHeiits of en-or insisting tliat the Court erred in not liolding and decreeing that the contracts by the Canal Commis- sioners lield by tlie defendant are and each of tliem is void (viz: Nos. 5, 8-20) and the assignments Nos. 3, 4, (i, 7, 21-20 (and the additional assignment), insisting that the Court erred in not hold- ing the proposed dam an unlawful structure and insisting dhat the Court erred in dissolving the injunction, and in dismissing the Information, and in not granting a permanent injunction, and in not requiring the removal of the partially constructed dam, are insisted on; and the foregoing divisions of this brief of points and authorities adduced in sup])ort thereof. II. THE COURT ERRED lU EXCLUDING COMPETENT EVIDENCE. 1. The COURT erred in striking out the historical reputation AND TRADITION EVIDENCE AS TO THE USE OF THE RIVER. The motion by the defendant to strike out is found in the Ab- stract, pp. 955-7, and the ruling is found on Abstract, pages 1223- 1238. The best evidence rule is a rule both of requirement and of in- dulgence. The best evidence that the nature of the case affords is required, and the best evidence that the nature of the, case affords is competent. Omychund v. BarJcer^ per Lord Hardwick, and per Wills, J., 1 Atkins, 21. 3 Blackstone’s Commentaries, 368. Burke’s opening argument in the trial of Warren Hast- ings (11 Burke’s Works, Little & Browm’s Ed., p. 77). Best on Evidence,” Section 295. 125 The nilo is tlms slalod by Mi*. Wigin()j-(‘, 2 VVi^in()r(‘ on I^]vi- deiice, ScH'iioii 1582, under the i>-eneral lu^adin^': ‘‘ Kxee})tions to the lleai’say Rule; Reputation About Land-Rights:” '^A. IjAnd-Boundartes and Land-Customs. 1. THE NECESSITY PRINCIPT.E. S 1582. Matter must he ancient, namely, the re[)utation of a past generation. '‘1810, Swift, C. J., Evidence, 121: 'The law has there- fore wisely rejected all hearsay evidence, excepting where it is impossible in the nature of things to obtain any otlier. * * * This happens in matters of long standing, where +iie witnesses who were knowing to them are not in being. Such are * * * the ancient boundaries of land.’ In the United States the question came up most frequently with reference to boundaries of land, and the special neces- sity of reputation-evidence in such cases was often noticed : 1797, per Curiam, in Montgomery v. Bichey, 2 Yeates, 213 : 'It must be obvious that when the country becomes cleared and in a state of improvement, it is oftentimes difficult to trace the lines of a survey made in early times. The argu ment ex necessitate rei will therefore apply.’ 1837, Tucker, C. J., in Ilarriman v. Brou n, 8 Leigh, 707: 'Questions of boundary, after the lapse of many years, be- come of necessity questions of hearsay and reputation. For boundaries are artificial, arbitrary, and often perishable; and when a generation or two have passed away, they cannot be established by the testimony of eye-witnesses.’ 1855, Baltzell, C. J., in Daggett v. Willey, 0 Fla., 511 : 'Reputation or hearsay, taken in connection with other evi- dence, is entitled to respect in cases of boundary when the lapse of time is so great as to render it difficult, if not impossible, to prove the boundary by the existence of the primitive landmarks or otlier evidence than that of hear- say.’ ” 2. The cihcumstantiau guarantee of trustworthiness. 1583. Reputation is Trustworthy, where tlie matter af- fects the common interests of a number of ])ersons in the same locality, and results in a common reputation. This may be supposed to have considerable evidential value.” 1584. * The common form of question put to . a reputation-witness was: 'What have you heard old men, now deceased, say as to the reputation on this subject?’ The judges constantly speak of 'reputation from deceased per- sons.’ Thus, though in form the information may he merely what deceased persons have hven heard to say about a cus- loin, yet in eff'ect it eoines or ought to eorne from them as a sfateuicnt of the reputation/ ’ * # * * * 158(5 Tlie mutter sliould !)e one of public, or general, or public and general, interest. (jg, eide difficult cases it is necessary still to seek the living prin- ciple, and ask anetv ivhether the matter is of such general in- terest to the community that by the thorough sifting of active, constant, and intelligent discussion a fairly trustworthy rep- utation is likely to arise.” # * * 1895, ^'eymour, J., in Robinson v. Deivhurst, 15 C. C. A., 4(5(5, (58 Fed., 336. 1889, Evans v. Merthyr Tydfil, 1 Ch., 241 (whether a piece of land was subject to commonable rights.) 1901, Klinker v. Schmidt, 114 la., 695, 87 N. W., 661 (street boundary). 1883, State v. Vale Mills,^ 63 N. H., 4 (the former line of the road which the plaintiff was charged with obstructing). 1874, Cox V. State, 41 Tex., 4 (county lines). 1824, Ralston v. Miller^ 3 Rand, 49 (street lines). § 1587 * the United States the decision was early reached entirely in harmony with the conditions of life at the time, to admit reputation-evidence of the landmarks of private title : 1837, Tucker, J., in Harriman v. Rroivn, S Leigh, 708. 1860, Field, C. J., in Morton v. Folger^ 15 Cal., 279. ***** 1882, Neill v. Duke of Devonshire, L. R., 8 App. Cas., 147 (Seldouene, Ld. C.) Lord OTTagax: ^‘Evidence of acts and proceedings ivith reference to the river generally was properly admitted.” ‘ * * * * * Wigmore, §§ 1596-1599, B. Events of General History. Rep- utation of ancient matters, i. e., those of former generations admissible. ***** 1847, Sanford, V. C., in Bogardus v. Trinity Church, 4 Sandf. Ch., 724. England: 1672, St. Katherine’s Hospital, 1 Vent., 151 (Ht was shewn out of Speed’s Chronicles produced in Court, that at that Time Queen Isabel was under great Calamity and Oppression, and what was then determined against her was not so much from the Right of the Thing as the Iniquity of the Times’) ; 1682, Bronuker v. Atkyns, Skinner, 14 (‘‘Speed’s Chron- icle was given in evidence to prove the Death of Isaliel, 127 QiuHMi l)()wai>er to K. II; and lliou^ii Maynai’d socnriod to o[)})oso it, and Dobiuns said it was dorni by (^)ns(irit; y(;t tin* (drud‘ dnslino said lio know not wliat hotter I/root (!onId b(; made. And AVallop said that in the Lord’s JIoiiso it was ad- mitted by them as good ovideiioe in the Ijord Bridgewater’s Case’) ; 1718, Proceedings respecting the Education, etc., of the Poyal family, 15 llow St. Tr., 1202, 1205, 1200, 1209 (the flndges drew up an opinion upon the King’s prerogative in the matter, and cited precedents on the exercise of the pre- rogative from Eymer’s PoeBera, Lord Clarendon’s History, Cotton’s Eecord, Kennett’s History of England, Burnet’s History of the Eeformation) ; 1810, Bidlen v. Michel, 4 Dow’s Pari. Cas., 297, (per Lord Eedesdale, and Eldon, Ld. Ch., Domesday Book, and Chartn- lary history of vicarage). United States: 1834, Maygiierite v. Chouteau, 3 Mo., 540, 555 (DnPratz, Barbe Alarbois and others’ works consulted as to the existence of slaverv of Indians in America in the 1700s) ; 1830, Co. V .Alhiirger, 1 AAdiart, 409, 473 (a letter of AAhlliam Penn confirming a certain grant; its mention Ln Proud and various other historical works’ treated as sufficient, the mat- ter being ancient) ; 1809, Baird v. Bice, 03 Pa., 489, 490 (in determining the ancient plan of London’s streets, etc., so as to interpret Penn’s plan of Philadelphia, the following works were con- sulted; Maitland’s History of London, 1754; Bohn’s Pictorial Handbook of London, 1854; Great London Directory, 1855); 1811, Hadfield v. Jameson, 2 Mnnf., 53, 71, per Tucker, J. (Edward’s History of the AVest Indies used to show the gov- ernment of Hispaniola). (AVigmore on Evidence, A^ol. It, pp. 1933-1947.) 1843, Stockton v. Wddiams (Alich.), 1, AValker’s Ch., 120 (identity of grantee in ])nblic treaty with tndian tril^e; repu- tation as to ])articnlar expressions and identity admissible. Affirmed on other grounds with dictum contra. 1 Doug., Alich., 546. The Des Plaines lEver is a land l)onndary and highway. It has all the physical characteristics of a line and boundary, extending through the land and dividing ownership of one from another. This river is itself a boundary lietween Cook County and DuPage County^ between Lockport and AVest Loclqiort, and is the boundary of several town sites and plats all the way down the stream. 128 Its use marking it. as navigable eliaraeterizes it as a liigliway and fixes tlie lionndary between i)rivate and ])ublie riglits. lle])ntation and tradition evideiiee as to the use of the stream as a liigbway by men of tlie former generations is competent evidence. 2. Mr. Cooley was asked, ‘‘How would the stage of water in a state of nature prior to these artificial obstructions and inter- ferences compare witli the stage of water in the 19 recorded years'?’’ (Abst., pp. 823-4.) The court excluded the testimony. This was error. It prevented the court from ascertaining the vet effect of the sevt'ral artificial and radical depletions of the stream. In contrast, the court admitted the defendant’s expert Johnston to answer several questions going to substantially the same point. (Abst., pp. 1397-9.) The rulings cannot both be sustained. One is necessarily erron- eous. The court should have admitted the testimony of Cooley, who knew, and excluded that of Johnston, who did not know. 3. The court erred in excluding the former pole line lease of 25 miles of tow-path from the Canal Commissioners to the defendant. (Complainant’s Ex. 2; Abst., p.'931.) This lease (still in forcel^gave the defendant the use of the tow-path from Chicago to Joliet and Exhibit K gave it the use of the tow-path from Joliet to Morris, the two together con- stituting two-thirds of the entire length of the tow-path. The unlawfulness of an admitted act may be shown by show- ing other acts and of a like nature, which tend to disclose a, common purpose, or scheme of unlawfulness. Broun V. U. S., 142 Fed., p. 1. People V. Molineaux, 168 N. Y., 264; 62 L. E. A., 193. Alex V. State, 56 Ga., 478. In a case in equity to set aside an unlawful contract, other contracts by the same defendant of a similar character are ad- missible on an issue of the fraudulent and unlawful character of the contract. Schroeder v. Walsh, 120 111., 403. 129 (hiUI V. St. John, l]o 111., 222; approved, Lockwood v. Doane, 107 111., 225. Miller v. Bedell, 21 J^a. Ann., 573. In contrast, the court admitted for tlie defense 112 leases by tlie Canal Connnissionei's, of the 9()-foot strip and tow-patli to show their practice. We respectfully submit that the two rulings of the court cannot both he sustained. (Ahst., ])p. 1165, 1387, 1577-1582.) The error was twofold. The lease of the 40 miles of the tow- path to the defendant, itself, was competent, while leases of 112 odds and ends of the 90-foot strip to a lot of strangers were not competent. Those transactions were res inter alios. Aurora v. Brown, 12 111. App., 122. Simmons v. Neiv Bedford Steamboat Co., 97 Mass., 361. Chicago v. Greer, 9 Wall., 726. 4. The court erred in excluding Complainant’s Exhibits 3 (Abst., p. 931c) and 4 (Ahst., p. 931d), which were contracts be- tween the Canal Commissioners and one Eobert Gaylord, an as- sociate of Charles A. Munroe’s, and which Mr. Munroe nego- tiated. (Abst., pp. 218-219.) These contracts by Munroe, in the name of Gaylord, with the Canal (Commissioners, were admissible for the ])urpose of show- ing the relations of Munroe (through whom the contracts in (luestion were ac(piired), with the Canal Commissioners from whom the contracts were ultimately accpiired. 5. The court erred in excluding Continental IVaterway ])ro- tile, a public document made by Mr. Cooley for the Sanitary District of Chicago, showing the relation of the Des Plaines Piver to the waterways of the country, and its slopes as compared with theirs (Cooley’s Exhibit 37; Atlas,.]). 3975a). This was excluded at (Abst., p. 1188). 6. In the clean-up of details at the end of the case, we offered to show by Mr. Cooley that the maximum flood volume of the Des Plaines River at this point when the Drainage Channel is com- pleted, tlTroughout its widest ])art, ])liis the high water flood of i:]0 would aggi*ogato 40, ()()() (‘uhic* foot ])or uiinute. The court excluded the testiiuoiiy. This was error. (Abst., p. 1674.) 7. We also offered to show tliat tlie period of navigation on the Illinois and Michigan (linal was made to correspond to tliat on the (treat Lakes, which was determined by the conditions at JNFackinaw, and that navigation there is limited by ice conditions iuid winter to 165 days in the 3 "ear, and that the period of winter interru])tions on the Des Idaines River by ice is from 60 to 70 days. Tlie court excluded the testimony. Tliis was error. (Abst., p. 1674.) 8. Similarly we offered to prove by Mr. Cooley that the diffi- culties of navigation which had been referred to by witnesses for the defense on the Des Plaines River, as compared with the rivers referred to by the witnesses for the defense and reported in the Reports of the U. S. Engineers, were less than the average amount of difficulties on such streams. The court excluded the testimony. (Abst., p. 1675.) 9. Again, in the final clean-up of details^ counsel for the State offered in evidence a certified coiiv of the lease of Dam No. 1, with the assignment of the same, under which the defendant claims to hold it, also the consent decree under which the Dam No. 1 had been reconstructed, showing exactly what private rights, if any, there were in the State property known as Dam No. 1, and showing to what extent, if at all, there was any right to main- tain any private right to the maintenance of this dam across the river. The court excluded the testimony, although it had ad- mitted evidence from several witnesses for the defense to the existence of several old dams and this dam. (Abst., p. 1676.) 131 III. THE COURT ERRED ADMITTINCx INCOMPETENT EVIDENCE OFFERED ON BEHALF OF THE DEFENDANT. The court received in evidence on the offer of the defendant a multitude of documents purporting to set forth acts by the Commissioners of the Illinois and Michigan Canal. 1. The ‘^Druley v. Adam’^ documents. Among these were a resolution in 1882 by the Canal Commissioners, that became equitably and justly incumbent on the state to assume the re- sponsibility of such suit,’^ — meaning thereby the suit known as Druley V. Adam. (105 111., 177.) The Canal Commissioners had assumed to lease to Ilruley and Slater some water-power created by the extra water of the Deep Cut. Adam contended that the surplus over and above the amount necessary to feed the canal, and capable of being de- voted to water-power purposes, — should inure to him. He sued Druley and Slater for the diversion of the power. This was the suit as to which the Canal Commissioners jiassed said resolution. With this resolution was received in evidence here the voucher of the sheriff, paid by the Canal Commissioners for the judgment and costs in that case (Abst., pp. 1339-43.) Also Druley ’s lawyer’s bill for his services (Abst., p. 1342). The opinion of Judge McKoberts (Abst., }). 139()). Also the abstract and briefs on both sides in the Appellate and Supreme Courts, and petition for re-hearing in the Supreme Court, in that case (introduced at Abst., pp. 1419-1428; abstracted at pp. 1733-1853). (On page 1344, the abstract says: 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.” This was a misprint. It was counsel for defendant who so stated.) Pages l“l-P.)-2(), counsel for defendant said: ‘^Tlie doctrine under wliicli we claim the right to introduce him is that as to matters in controversy in a law suit, state- ]iients or admissions made by a party at any time, at any place, are competent, and that is especially so of statements made in i)roceedings of record, to which such party was a party, or where he was a real party in interest. The introduction of briefs — in my exj)erience — I have known it a number of times as being of the same nature as })leadings. Pleadings are always taken up as admissible against a })arty. -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 attorney who appeared in the caBe for Druley and Slater and paid the fees in that case. The record shows clearly that it was really a suit hy 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 admis- sible.” (Ahst., p. 1420.) The court adopted this theory and admitted the volume of briefs in evidence. This was error. The Canal Commissioners were not the State of Illinois. They were statutory officers, with statutory powers. They had no implied powers. The resolution was beyond their power. (See Division One, Points I and II, of this brief, and the authorities there cited.) It was not a suit by the State, nor hy the Canal Commission- ers, nor by the lessee of the Canal Commissioners. It was a suit hy Adam against the lessee of the Canal Com- missioners. The Canal Commissioners could not be sued, (E. St., Ch. 19, Sec. 3.) And the State of Illinois could not be sued. (Constitution of 1870, Article 4, Sec. 26.) ‘‘The State of Illinois shall never be made a defendant in .any court of law or equity.” That was oiiloreod by this eourt in: Moore v. School Trustees, 19 Til., 83. People V. Dulaney, 96 III., 503. In re City of Mt. Vernon, 147 111., 359. That suit was tried on an agreed ease. (Abstract in this case, p. 1420.) Again, the evidence stipulated there, was ‘‘for the purposes of this appeal M It could not bind the State of Illinois 25 years later in an- other suit. The ‘ A’esponsibility” assumed by the resolution itself ' was merely pecuniary. By the resolution it was ^ Aesolved that said judgment and costs be paid; hut with a view to saving the future rights of the state that said judgment he paid under protest.” The briefs in Druley v. Adam were put in under the erroneous statement that “it was really a suit hy the state” to show some such as the following: ^The Des Plaines Kiver is in truth a very insignificant stream, never of much use as a feeder in the season when its services are most needed, and, except as reinforced by con- tributions of the Canal, affording sites only for what are some- times denominated ‘‘thundershower mills.’ ” (Abst., p. 1425.) “The lies Plaines Eiver 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.” (Abst., p. 1426.) These statements purport to be statements of fact; — they are made in a case in which the entire evidence was stipulated; — there is not anything in the entire stipulated evidence in the case of Druley v. Adams to justify any such statements; they are stray expressions and figures of speech outside the record, and used by the lawyer in argument, and are no evidence of anything. The entire abstract and the entire brief remain in evidence. (Abst., pp. 1733-1854.) There was no other evidence. No estoppel could run against the state thereby: “In order to create an estoppel, the following elements must be present: (1) There must liave been a re})re.sentation ooacerning the material facts. (2) The re])reseTitatioa must liave l)een made with the kiiowlediije of tlie facts. (d) Tlie ])arty to wliom it was made must have ])een ig- norant of the trntli of tlie matter. (4) It must liave been made with the intention that it would he acted upon.’’ People V. Brown, 67 111., 485. None of these elements is present. The verbal admissions of the counsel made in the trial of an- other cause are not admissible by way of estoppel. Kepser v. Pichrell, 4 App. Cas. (D. C.), 198. Adam is a stranger to this law suit, and the state was a stranger to the Adam law suit. There is no estoppel against the state here by the admission of one stranger, Druley, to another stranger, Adam, there. Bohinson v. HawMns, 38 Vt., 693. Moore v. Boyd, 74 Cal., 167. There is no theory on which an agreed statement of facts is admissible in a suit between other independent parties, merely because the subsequent suit relates to the same parties. Elfin y V. Scoff, 2 Johns. (N. Y.), 157. Th contention of defendant is that Druley and Slater were only nominal parties and that the Canal Commissioners (and therefore the state) is the real defendant in Druley v. Adam. This is wrong; but if it were correct it would not aid the defendant. The admissions of a nominal defendant are not admissible against the real defendant in interest who is not a party. Day V. Baldwin, 34 Iowa, 380. Armsfrong v. Normandy, 5 Exch., 409. There is no estoppel against the state by unauthorized, or extra- legal acts of its officers, — and their admissions are incompetent to charge it. Tyler v. Bailey, 71 111., 34. People V. Brown, 67 Til., 435. Demen f v. BoJcker, 126 111., 174. l.r) So of tlio miautliorized admission by a guardian. II is inooni- ])ot(mt to (‘liargo llie ward. Ilviseii y. Ileiscn, 145 III., (>58, Point, II (p)). 570-71). 2. The court erred in receiving- in eviden(*e 112 leases Ijy the Canal Commissioners to strangers of ])arcels of the 90-foot strip (Ahst., pp. 1105, 1844, 1387, 1577, 1580, 1582). The error was fourfold : (1) Those leases were res inter alios. (2) The proof was made in a majority of cases by merely put- ting in a page from the Canal Eeport giving a list of ^Seases of ‘90-foot strip’ and lots.” (See Abst., pp. 1105, 1578, 1580, 1581, 1582.) This evidence was not the best evidence. It gave (at Abst., 1105) nothing to show which were 90-foot strip and which were other lands; at pp. 1165, 1580-1-2 it gave nothing as to the term of the lease; all of them may have been leases at will or for very short terms. The lease at ]:)age 1578 professed to give the term, five of them being for 10-year terms and the rest for less. These lists of leases do not disclose anything as to the na- ture of the action taken by the Canal Commissioners. They are simply lists taken from the annual re]^orts in which the Com- missioners ])urported to summarize their ow?* former acts. (3) The leases actually set out in the only list so given (Abst., 1387-1395) are upon their faces instruments signed by individuals with the words “President” and “Secretary” a])- ])ended to two of the names. They are not signed by the Canal Commissioners of Illinois, nor by “The Canal Commissioners.” (See statement of objection, Abst., ])]). 1387-8.) (4) The leases so ]mt in evideiu'e in a lunp) may each one he unlawful for the same reasons as the contracts in the case at har. They may each he beyond the power of the Canal Commissioners. Many of them obviously are so For instance, the lease of a mile and a half of the canal stri]) in Snyder E.\hihit 20 (Abst., 1388) to the Illinois Steel Company. The wrongful leasing of the 90-foot stri]) in this instance is not justifiable by othei* leases of the 90-foot stri]) either i*ightful or wrongful. See aiillioi-ilies eited in Division One as to the imlawfiilness ot* leases of tlie l)0-foot strip, and in Division Four, Part 11 as to res inter alios. See also, tlie treatment of res inter alios of Charles F. Chamherlayne, Fsq., in 17 Cyc. of L. & P., pp. 274-289 and cases there cited, statinp^ the grounds upon which such evidence is excluded and the exceptional cases when it is pro})erly admitted. 2). The court erred in receiving: (a) Lists of numerous alleged acts hy the Canal Commission- ers in selling other parts of the 90-foot strip; (h) Sales of other lands bordering rivers which were claimed to convey parts of the river bed; and (c) Lists of unsold canal lots. Instances of such acts in class (a) are given at pages 1415- 1419 of the abstract. Instances of such acts in class (b) — as well as of sales of other lands bordering rivers, — are given on pages 1294-1296 of the ab- stract; also at pages 1606-1611 of the abstract; also at page 1712 of the abstract. Instances of such acts in class (c) viz: lists of alleged unsold canal lots, were offered and received, Abstract pages 1165, 1166, 1167 ; also Abst., pp. 1331-1337 ; also Abst., pp. 1414 et seq. (a) The admission of proof of sales of other parts of the 90- foot strijD by these same Commissioners in 1907 was erroneous. In 1899 such states were forbidden by the statute by Eev. Stat., Ch. 19, Sec. 8, Cl. 8, as amended by the Act of April 21, 1899 (4 Starr & Curtis, Ch. 19, p. 90). In 1907 when the sales occurred the law had been changed again by the Act of May 16, 1905 (L. 1905, pp. 81-83). Appar- ently the law had been changed by the Act of 1905 to permit some sales and not others. Acts thereunder were wholly ir- relevant to the question whether the sale of 1904 of a perpet- ual easement was valid. (b) Proofs of sales by the Canal Commissioners at other times in Chicago or other parts of the State of lands bordering streams, such as were put in evidence by the defendant (Abst., 1294-6, 1606- 11 and 1712) were apparently offered on the theory that they wore so many |)raeti(*al (‘oiislnic, lions of llio law by Ukj (Unn- inissioners lliemselves. AVe deny their eompetency for that or any other purpose. The Canal Commissioners and Trustees were not the judiciary. Their deeds show notliing on the subject of what the law is. Many of these tracts were in the City of Chicago where, from time to time, the law has contained special provisions con- cerning sales of land different from canal lands in the rest of the State. Subdivisions there stood on a different footing (See Diederich v. Rose, 133 111. App,. 384; 228 111., 610). It could only confuse the court to introduce indiscriminately such sales of river lands on the Chicago Eiver and in the Canal Subdivisions, and impose on the court the burden of chasing down the different changes in the law concerning canal lands in Chicago in order to show that they have nothing to do with lands on the Des Plaines Eiver in Grundy County. (A few instances of such special provisions concerning sales in Chicago will be found in the Acts of March 2, 1837 (Canal Comp., 39, 41) ; Act of July 31, 1837 (Canal Comp., pp. 49-50) ; Act of February 17, 1841 (Canal Comp., p. 72) ; Act of Feb- ruary 27, 1841 (Canal Comp., p. 74) ; Act of February 27, 1845 (Canal Comp., p. 92) ; Act of March 1, 1845 (Canal Comp., p. 94); Act of March 7, 1872 (Canal Comp., p. 153) ; and others.) So with regard to lands in Ottawa, Joliet, Lockport, etc., lists of acts to be filed showing special authorities concerning the sale of canal property in each of those towns. The Act of February 15, 1831, required the plat of the town of Ottawa to be so altered ‘‘as to present the front street of said town on the verge of the second hank of the Illinois River.’' And again, ^^All the ground between the bluff and the Illinois River in the town of Ottawa shall be reserved for sale.” (Canal Comp., p. 20.) Sales in these other localities where the law was different or may be different at different times are res inter alios. The court cannot try all the issues suggested thereby. The evidence should have been excluded. 138 (c‘) Lists of unsold luiids were a})})areiitly offered for the dou- l)le purpose of sliowiug-, fii'st, that the Canal Commissioners did not iiK'lude hits of river bed therein and therefore did not con- ('eive tliad they owned tlie river l)ed; and secondly, to show that tliey did sometimes include ])its of tlie 90-foot strip in the unsold lands and therefore, a])parently, think they had the rights to sell the 90- foot strip. Such theory is fallacious and does not invest this evidence with any coni])etency. 4. The court erred in receiving in evidence the record of a judgment in favor of one James McKee against the Canal Com- missioners. (Abst., p. 1175.) This was res inter alios. 5. The court erred in receiving in evidence on behalf of de- fendant (lovernor Ford’s deed to the Canal Trustees (Abst., p. 1301), the Canal Trustees’ lie])ort (Abst., pp. 1314-1326), and the release deed by the Canal Trustees (Abst., ])p. 1326-8). Much other evidence of the same sort about the Canal Com- missioners and Trustees in their dealings with strangers was erroneously received in evidence. Among such items were the Canal Commissioners’ Keport of 1825 ( Abst., pp. 1067-1073), the report of Post & Paul, in an imperfect condition with reference to maps and diagrams, which were not ])roduced, all dated December 25, 1824 (Abst., pp. 1073- 1090), passages from messages from Governor Ewing, 1834, (Abst., p. 1065), Governor Duncan in 1838 (Abst., p. 1066), from Governor Carlin (Abst., j). 1097). These items were all erroneously received. They were res inter alios. 6. The court erroneously received in evidence the stipulation of facts in Haven v. The Board of Trustees of the Illinois S Michigan Canal, made in the Mill County Circuit Court ‘^October Term, 1848” (Abst., pp. 1098-1101) (reported 5 Gilm., 548). There it was stipulated thus; ^Mt is also admitted that the Des Plaines River is noi navigable in fact, although a portion of it is declared to be so by act of the legislature.” (Abst., \). 1100.) ]:vj This sti})uliitioii is signed “1. N. P>iiil(nTield, Ally, for Defls.” (Al)st., p. 1101.) Tlio defondanls wore tlie Board of Trustees of the Illinois and Michigan Canal. They were not state officers, Imt were statnloi-y mortgagees of tlie state. The admission of the attorney for tlie mortgagees did not liind tlie sovereign State of Illinois. See the authorities cited elsewhere in this brief (Div. Four, Part III, point I) tliat the stipulation to a state of facts in Drnley v. Adam, by the Canal Commissioners Lessee did not bind the State in other proceedings. The navigability of the lies Plaines Eiver was not a subject upon which the Canal Trustees were authorized by the State to make admissions. The admission by the Canal Trustees was self-serving. They desired to dam the river to use its water for their canal ; the other party desired to dam the river to nse its water for a mill. The admission was mutually self-serving. They united in denying the rights of the people for tlie pur]^oses of that case. Such self- serving statements are not admissible against the ces que in trust. Renham v. Hall 131 N. Y., IGO. Bragg v. Geddes, 98 111., 89. Buck V. Maddock, 1G7 111., 219 (Admissions of a Guar- dian ad Litem) (Admissions of a procliciu ami). The declai'ations of a trustee inpiairing the rights of a bene- ficiary are incompetent against the beneficiary. Thomas v. Boaimau, 29 111., 42G. See also Unify Co. v. Eqaitahle Trust Co., 201- 111., 595; affirm- ing 107 111. A])p., 449, holding that statements by the trustee do not bind the cestui. There is no theory on which an agreed statement of facts is admissible in a suit between other independent ])ai*ties merely be- cause the subsequent suit relates to the same subject. Etling v. Scott, 2 Johnson (N. Y.), 157. 140 7. The eoiirt eiToiieonsly received tlie opinions of laymen as if th(\v were experts. This was true of many of the old settlers called by the defend- ant, e. g., the following: Alexander (Abst., pp. 508-9). AViiliams (Abst., p. 523). Ibirt (Abst., p. 572). Bowers (Abst., p. 604). Collins (Abst., ]). 614). Killmer (Abst., p. 626). Other similar cases occur, bnt these are enough. Tjiese opinions were incompetent. 8. The court erred in receiving on cross-examination the opin- ion of the State’s witness, Clement, who was familiar with the river, but not an expert on navigation (Abst., pp. 896-7) ; — and who said on re-direct ‘‘I don’t know exactly what navigability means to tell the truth. I have no opinion” (Abst., p. 399), and denied the motion of the complainant to strike out the opinion. (Abst., pp. 397, 398, 399, 400.) This was error. 9. The court erred in receiving in evidence the letter from Lt. Col. W. TI. Bixby to Gen. A. McKenzie, Chief of Engineers, dated March 27, 1906, and by Eobert Shaw Oliver, Assistant Secretary of IVar to Charles A. Afunroe, dated June 7, 1906. (Abst., pp. 1296-1301.) These letters set out that Lt. Col. Bixby, at Chicago, had rec- ommended that ‘‘The Hon. H. AI. Snapp and Air. Charles A. Alun- roe be informed that the AVar Department will waive any and all objections that it may have to the progress of such water-power dam construction as proposed by Air. Alunroe’s letter of Alarch 20, 1906, and its enclosures, provided that he, on the part of the power dam owners, agrees” to several important items for the protection of the United States Government. They further show that Air. Oliver acknowledges a letter from Air. Alunroe dated June 5, 1906, enumerating some fresh conditions, and said “If these conditions are complied with in the opinion of the Chief of Engineers, LT. S. Army, concurred in by this de])artment, the work 141 proj,)()se(l is in geiicM-nl liannony with tlio woi'k of llui iniprovcMrunit roeoimiioiidod by tho I^oard of Fnii>'iii(‘ors * * '* in its I'oport * * * printed as House Doeninent No. 2(h], b9th (.hni^^i-ess, First Session. Inasninelp liowever, as Congress lias not as yet authorized the improvement of this river, this department does not deem it expedient to take fnrtlier and definite action in the matter of approving the plans. (To) Charles A. Munroe, Very respectfully, The Kookery, Robert Shaw Oliver, Chicago, Illinois. Assistant Secnetanj of Wav.’" (Abst., p. 1301.) The admission of these letters was error. The letters of Mr. Miinroe of March 16 and March 20, with the three blue-prints accompanying the same, upon which the opin- ion is based, were not produced. The identity of what was submitted by Congressman Snapp and Mr. Munroe to Mr. Bixby with the work now being done by de- fendant is not shown. The letters refused to give a federal ])ermit for the work pro- posed by Munroe ’s letters of 1906. As a consolation to the disappointed a])i)licant, Oilver assures him that McKenzie is of opinion that the ])lan in Munroe ’s letters and blue-prints (not produced) is in rjeueral hannony icitli the tvork of improvement recommended in Document 263. This is irrelevant and incompetent against the State of Illinois. The State called Gen. iMcKenzie as a witness. Defendant in cross-examination (piestioned him about this correspondence and he reiterated that no peiinit had been granted. (Abst., pp. 173, 180.) The admission of the letters was error. 10. The Court erred in receiving the testimony of Munroe (Abst., pp. 1611-13) and the trust deed offered and received with his testimony (Abst., pp. 1613, 1712, 1854, 1854a, h) as to the ex- penditure of money by Munroe, his negotiations with and sale to defendant company and the making of trust deed and sale of bonds by defendant. (Abst., pp. 1613, 1713, 1854-1854a, h.) All these 142 were res inter alios and irrelevant, incompetent, immaterial, and not the best evidence. And for these reasons we res))ectfnlly submit that the decree below should be reversed. R e s })ec t f u 1 1 y submitted, WiLUTAM H. Stead, Attorney General. \¥alter Keeves, Merritt Starr, Special Counsel for The People. Peck, Miller & Starr, Peeves, Osborn & Griggs, Of Counsel for The People. IN THE 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 y 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. Stouqh, Judge of said Court), Judge, Presiding. ARGUMENT FOR APPELLANT AKGUMENT. PRELIMINARY. The Governor and Attorney General Have the Eight, Power and Duty to Maintain This Proceeding. I. THE ACTS OF THE LEGISLATURE ARE COMPLETE AUTHORITY FOR THIS PROCEEDING. These acts are two, viz. : (1) The joint resolution of the Legislature November 27, 1907, which reads as follows: (Laws of Illinois, 1907-8; Adjourned Ses- sion, pp. 101-2.) ‘‘Whereas, The Canal Commissioners appointed under and by virtue of ‘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 March 27, 1874, in force July 1, 1874, have at various times heretofore executed leases of water power and water privileges to private indi- viduals and corporations, under and by virtue of the powers granted to said Commissioners by Section 8 of the above en- titled Act, and that among the said leases were certain alleged leases or agreements to Harold T. Griswold, dated September 2, A. D. 1904, purporting to grant and convey certain rights and privileges in and to the waters and water power of the Des Plaines and Kankakee rivers ; and, “Whereas, The said Harold T. Griswold or his assignees, by virtue of said alleged leases or agreements, are building and constructing certain dams, controlling works, locks and other obstructions in and across said streams, which in the opinion of this General Assembly, are destructive of the navigation of said streams, and to the disadvantage of the State of Illi- nois ; and, “Whereas, The Sixth clause of Section 3, (8) of said Act, provides, among other things, as follows : “ ‘All leases of water power and extensions thereof shall be subject to the right of the commissioners to resume witlioiit compensation to the lessee the use of any such water ]>ower for the purposes of the canal, and also wholly to abandon or 2 destroy tlie woi-k 1)y llic eonstnietion of wliieh tlie water priv- ilege shall liave been created whenever, in the opinion of the* Legislature, such w^oi'k shall cease to be advantageous to the State’; and, ^‘WiiFJUvAS, The construction of sucli dams, controlling- works, locks and other obstructions being erected and con- structed by the said Harold T. Griswold, or his assigns, have ceased to be advantageous to the State, and that such water power and water privileges purporting to have been granted in and by virtue of said alleged leases or agreements are neces- saiy for the purpose of the canal ; therefore, be it ‘ ‘ Hesolved, by the House of IIepresentatives, the Sen- ate, Concurring Therein. That said Canal Commis- sioners are hereby empowered and directed to cancel and annul said alleged leases or agreements and any and all extensions thereof and to resume all such water power and water privileges therein purported to have been granted to the said Harold T. Griswold, by the said Canal Commission- ers, on September 2, A. D. 1904, and that said water power and water privileges be restored for the purpose of the canal and that all such dams, controlling works, locks and other ob- structions therein existing for the purpose of creating such water power and water privileges be forthwith abandoned and destroyed by such Canal Commissioners. Adopted by the House, November 27, 1907. ‘ ‘ Concurred in by the Senate, November 27, 1907.” (2) The Act of December 6, 1907 (Laws of Illinois, 1907-8 ; Ad- journed Session, pp. 32-33), which is as follows: and An Act recognizing the Des Plaines 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 Illi- nois, represented in the General Assembly, That the Des Plaines and Illinois Divers throughout their courses from and below the water power plant of the main channel of the Sani- tary District of Chicago, in the Township of Lock- port, 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 ex- plicit 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. ‘‘Section 2. ]Vliercas, vXn emergency exists; Uiis Act shall be in force and effect and after its passage. Approved y I)ecenil)er (i, 1907.” II. THE COMMON LAW AS TO THE ATTORNEY GENERAl/s OFFICE AUTHOR- IZES THIS PROCEEDING. The Attorney Generalship is an ancient common law office. In Illinois the Attorney General retains all the ancient common law powers of his office. He has not been divested of that power by acts giving authority to the Canal Commissioners or other officers. III. THE CONSTITUTIONS AND LEGISLATION OF THIS STATE PRESERVE THIS COMMON LAW AUTHORITY. Constitution of 1818, Art. II, Sec. 25. Constitution of 1870, Art. V, Sec. 1. “An Act in regard to Attorneys General and State’s Attor- neys” (Act of March 26, 1874), Eev. St., Chap. 14, Sec. 4. Hunt, Attorney General, v. Horse S Dummy Railroad, 20 111. App., 282, affirmed on this point 121 111., 638-642. McCartney, Attorney General, v. C. S E. Railroad Com- pany, 112 111., 611. Attorney General v. Woods, 108 Mass., 436. Attorney General v. Jamaica Pond Aqueduct Corpora- tion, 133 Mass., 361. The original prerogative powers of the Attorney General in- clude the power to invoke the protection of the court against idtra vires contracts by Commissioners. Attorney General v. Forbes (Cottenham, Lord Chancel- lor), 2 Myline & Craig, 123, and notes to American Edi- tion. Freiven v. Letvis, 4 Mylitie & Craig, 249. IV. THE CANAL ACT PROVIDES THAT THE CANAL COMMISSIONERS SHALL NOT BE SUED. THEREFORE IS WAS NOT PRACTICABLE AND NOT NECESSARY^ TO MAKE THE CANAL COMMISSIONERS PARTIES. And here we may notice that other suggestion contra made by the Trial Court, viz., that the acts of the Canal Commissioners 4 (*()ul(l not 1)0 tliiis atta(*ko(l u'iihout HKikiur/ tlieni pa) ties (see siig- g’estioii ot Trial (\)urt (Trans., ])}). 2,‘)3()-)>2; Abst., ]). 788). Tlie reply is that it is iieitlier necessary nor possible. Tlie (kmal Act, Se(‘tion .2, ])rovi(les: ‘‘For all legal ])urposes the said Cominissioners shall l)e deemed officers of the state, and all deeds, contracts, writings and acts may be made and suits prosecuted by them, in the name of ‘The Canal Commisisoners,’ but they shall not he consklered as a distinct corporation, or he liahle to t)e sited/ ^ (Rev. Stat., Ch. 19, Sec. 8.) This ])rovision of the Act of 1874 (still in force) is a reversal of the former policy of the State, beginning with the Act of Jan- uary 22, 1829, Section 10, which provided: “Section 10. Said Commissioners may sue and be sued, and defend in the name of ‘The Board of Commissioners of the Illinois and Michigan Canal.’ ” (Attorne}^ General Stead’s Compilation of Canal Laws, p. 17) continued by Section 11 of the Act of February 10, 1835, which provided : “The 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, sue and be sued, defend and be defended, plead and be im- pleaded, (Id., p. 24-5.) This was repeatedly called to the attention of the trial court. (Abst., pp. 788, 1346-7.) This reversal of policy prevented the State from making the Commissioners parties defendant to this information. Being for- bidden by law, it certainly was unnecessary. Xo attack is made on the intentions or motives of the Canal Commissioners, but their acts were plainly beyond their power contrary to public policy, against the interests of the State and void. ])IVISION ONE. The Canal Commissioners^ Contracts Are Void. SUMMARY OF THE POSITION OF THE STATE IN RESPECT TO TFIE CANAL COMMISSIONERS^ CONTRACTS. The state maintains that the Canal Commissioners have a high public duty, to maintain in its integrity the policy of the State in respect to the canal and the canal lands and property. They hold a public office which is a public trust. It is their duty to see that the State shall sutler no harm in respect to the res committed to their charge. This duty they have failed to perform. These policies they have failed to maintain. Each of these principles of public policy was violated by the contracts held by appellee. The State maintains that the Canal Commissioners had no juris- diction to grant any right to maintain a dam across the Des Plaines River. That this contract, Exhibit A, called the ^‘Elowage Contract,’’ which gave the right to flood in perpetuity the canal embankment, the 90-foot strip and the canal riparian lands, was a contract which gave that right without any limit of time. That a contract granting a right to flood lands without limit of time, grants the right to flood them in perpetuity, and that this is a sale of land. To put the perpetuity beyond dispute, the contract in question contained the further provision that the grantee shall perpet- ually thereafter maintain the same in good condition.” (Abst., p. 31.) This was a sale of land. It was a private sale, without bidding, and after the land had been advertised for sale and then withdrawn from sale. The law forbids a sale except upon advertisement and to the liigliest bidder (Canal Act, ’99, Sec. 8, Cl. 8), and tliis sale was in violation of law. The sale was followed by a lease of the naked legal title, sub- ject to the right theretofore granted to keep the property forever covered with water. The lease was a lease for 20 years, with a right to renew for 20 more, while the law forbids the Commissioners to make any lease for a term of more than 20 years. The subject of this lease is in part the riparian tract of canal lands between the river and the canal; and in part the 90-foot strip and embankment of the canal, up to the edge of the tow-path, which leased strip embraces between 35 and 40 acres. The riparian tract is frequently referred to in the evidence as the so-called ‘‘17-acre tract.” Its area is not 17 acres, but 40 acres, figured to the margin of the river, and if the area of the river bed be included (as the defendant claims the right to do), its area is 58.92 acres. It was carried on the books of the Canal Commis- sioners under one description; it was leased and sold by another and a different description, whereby the error in its acreage crept in. The error was against the State. (Abst., pp. 224-230, 271-272.) The Canal Commissioners have no implied powers. They are the special delegates and trustees of a restricted power to control and manage the canal and its property, to make certain sales to the highest bidder of property not needed for the canal, and to protect and retain the property that is needed for the canal ; they are forbidden to sell the 90-foot strip, and this sale of an interest in the 90-foot strip was in violation of the statute which forbids such sale. This flowage contract in terms authorizes the invasion of the canal, by giving the right to enter in and upon it and fill into it ; and a beginning has already been made by the defendant, of such filling in, in violation of the obligation of the Commissioners. The flooding of the 90-foot strip, embankment and tow-path, whether permanently or for 20 years, is inherently dangerous to the canal. The leases in question, which the Court below held authorized 7 such submergence for 20 years, are, in terms, assignable to iri*e- sponsible parties without the Canal Commissioners’ consent. The flowage contract authorizes the holder to dismember the Kankakee Feeder, which flowed northwardly from the south and carried the water of the Kankakee River across the Des Plaines and emptied into the canal. The flowage contract authorizes its holder to cut off and remove so much of the Feeder as carries the Kankakee waters across the Des Plaines and north of the Des Plaines into the canal ; and the Feeder lease authorizes the holder to use the balance of the Feeder in feeding the waters of the Kan- kakee into the water-power pool. This is an appropriation to private uses of public property. The flowage contract was made with Griswold and his assigns independent of any consent to assignment by the Canal Commis- sioners. The lease of the 90-foot strip and riparian tract was made with Griswold and his assigns independent of any such consent, but was made expressly subject to the rights of the holder of the flowage contract. This separated the two, so that one could be assigned to A and the other to B. They should l)e considered as distinct contracts, and each as void. But, if construed together, they amount to a lease of water- ])ower. The statute forbids any leases of water-power except after advertising and to the highest bidder. There was no such advertising or bidding for tliis water-])ower lease. The sale of the riparian tract was conducted by an employe of the Commissioners, in the absence of all the Commissioners and without any authorization, and is void. The deed professedly simply carries into effect the void sale, and is therefore also void. The deed expressly renews the void covenants of the Canal Commissioners in the void flowage contract and lease, and is therefore void. The deed is made expressly subject to the reserve of the flowage right. s l)ut that flowage riglit never left the Canal Commissioners, and therei'oi-e the grantee ac(]uired no right to flood such lands. The entire series of contracts is against public policy and in ex- cess of the powers of the Canal Commissioners, and void. The leading part and object is that of maintaining the dam and flowing lands in perpetuity, which is void. Where the leading part and object of a contract is void, no part of it will be upheld. Con- tracts growing out of and connected with an illegal transaction are themselves also illegal. The entire series of contracts leading up to the deed was a series of devices and instruments which were adapted to, and did, defeat free, open and competitive bidding at the sale. The sale was ad- vertised to be subject to the rights conferred by the ftoivage con- tract and lease. Nobody was going to bid for a piece of land that somebody else could overflow in perpetuity with water sixteen feet deep, and of course nobody did bid except the holder of the flowage contract and lease. The entire series of contracts was adapted to and did defeat any free, open and competitive bidding at the sale. The contracts were attempted evasions of the statutory prohi- bitions against the sale of the 90'-foot strip, against the making of a lease of either land or water power for more than 20 years, and against any sale except upon free, open and equal competitive bidding. The Court below by its rulings upheld several of these princi- ples of public policy; but the decree which it entered is inconsist- ent with its opinion. The Court erred in not carrying these prin- ciples into effect by its decree. The Court held the flowage con- tract void; but it did not decree it void, as it should have done. The Court below held that the renewal provision of the lease vras void; but it did not so decree. The Court erred in not decreeing each of the contracts void, and erred in not treating them in the same way in the decree. The court’s decree ignores the flowage contract altogether. As to the renewal provision of the lease, the decree provides that it shall be without prejudice to other proceedings to obtain 9 an adjudication of its invalidity. ''Flie (^)urt holovv (Joclarod it was void. The bill prayed for an injunction because it was void; and the bill prayed for general relief. The Court should have de- creed it void; and even if it were right to dismiss the bill without prejudice as to such lease, then it should also have dismissed the bill without prejudice as to the flowage contract. The decree presents the same inconsistencies as to the Kanka- kee Feeder lease, Exhibit C. The Kankakee Feeder lease con- tains a similar renewal provision. If the dismissal was rightly made without prejudice to a future attack on the land lease having a renewal clause, then it should have been without prejudice to the same attack on the Kankakee Feeder lease. ‘‘98. As PUBLIC IMPROVEMENT. — Intimately connected with the question of improvement of navigation is that of the construction of canals. Transportation facilities are an absolute necessity to the development of a country. Be- fore the invention of the locomotive, the only adequate means of furnishing it was the water way. When this existed in a natural state of capacity sufficient to meet the demands upon it, well and good; but when the natural water ways were of insufficient capacity, it was usually regarded as a govern- mental duty to improve them so as to furnish the needed facil- ities for intercourse and commerce, and in case there were no natural water ways, it was also a governmental prerogative to create them. These artificial water courses are generally known as canals, and may be constructed for short distances beside a natural water way to avoid falls and rapids, or they may be constructed for long distances through sections of country where there are no natural water courses, and the water taken from natural sources and turned into them to furnish means of transportation. * * * Such improve- ments, however, proved expensive, and placed a burden of taxation upon the people, and the expenditure of the money involved in their construction proved a severe strain on offi- cial honesty, so that, with the advent of the railroad, there was a popular revolt against the government’s undertaking such work; and it is prohibited now in many constitutions.” (1 Farnham, Waters, Ch. VII, Sec. 98, pp. 448-9.) In Woodivard v. Seeley, 11 111., 157, and 164-5, the Court said: “In this case, the license, while unrevoked, authorized the complainants so to erect their dam as to overflow the land of defendants, and released them from the damages, to which they would otherwise have made themselves liable in so doing. 10 but did it give them the right to overflow the lands of the de- fendants, and deprive thefn of their use perpetually and for- ever? If so, the license certainly carried with it an interest in the land, and if the grant of the interest was valid, the license became irrevocable. But can such an interest be granted by parol! To hold that it could, would, to use the language in 1 Sugden on Vendors, 80, be fin the very teeth of the statute,’ which declares that every contract for the sale of lands, tene- ments or hereditaments, or any interest in or concerning them, for a longer term than one year, shall be in writing. If one man can accpiire by parol, the right so to use another’s land as to render it useless to the owner, it will be but taking a short and easy step, and going very little further, to hold that he may acquire the title itself, by parol ;/or ofivhat avail is it to a man to have the naked title to a piece of land, which he can- not use, hut ivhich, in spite of him, another has the right to keep forever covered with water? * ^ * In our judgment, a license perpetually to overflow the land of the defendants would create an interest in it, and, therefore, could not be granted by parol ; consequently the license in this case carried with it no interest and was revocable at the will of the party granting it. ” ^ • * In Wilmington Water Poiver Company v. Evans, 166 111., 548, at 557, the Court said : ^‘It is claimed for the award by the appellant, that it vested in the Kankakee Company the right to overflow the land of Patrick Judge, the ancestor of the appellees. Such right to overflow is an interest in land. It is well settled that a parol license or agreement giving such right is within the Statute of Frauds, and void. Such a license is revocable at any time. {Tanner v. Volentine, 75 111., 624). In Woodivard v. Seely, 11 111., 157, this Court held that a license perpetually to overflow the land of the party granting such license would create an interest in the land, and therefore that the license could not be granted by parol. A license coupled with an interest in land must be in writing. The doctrine of the Woodivard case was subsequently endorsed and adhered to in the case of St. Louis Nat. Stock Yards v. Wiggins Ferry Co., 112 111., 384. ^‘It may be said that the award here is not a parol license to overflow the land, and does not convey or purport to con- vey any interest in land. But even if it be regarded strictly as an award and not as a parol license, it is pleaded as a bar to the present suit, upon the ground that, by its acceptance by both parties, the Kankakee Company acquired a .vested right in the lend of Jiids^e amounting to a perpetual easement to overflow his land. A submission and award should be in writ- ing where a writing is required to pass the title to the thing in contest. {Smith v. Dcnujlass, Ki Jll., .‘>4; 2 Am. & Ency. of Law, 2d ed., p. 543). An oral submission to ar})i- tration and an oral award are valid, exc^ept where an instru- ment in writing is required to pass the title to the thing in dispute. A perpetual easement to overflow land being an in- terest in land which requires an instrument in writing to pass the title to it, the acceptance of an oral award cannot be said to vest such an interest. ’ ’ In Cooh V. Stearns, 11 Mass., 533, at pp. 536-8 (1814), the Court (Parker, C. J.) said: ‘Mt is evident, therefore, that the defendant claims a perma- nent interest in the plaintitf’s close, a right to maintain the bank, dam and canal, which he formerly placed there by con- sent, and to enter upon the plaintiff’s close at any time to make necessary repairs. Now, this is an interest in land, which cannot, by our statute of 1783, C. 37, pass without deed or writing; for all interests in land, according to that stat- ute, whether certain or uncertain, are declared to be estates at will, unless the evidence of them exists in deed or writing; and if a continuation of the interest is intended for seven years, it must not only be passed by deed, but the deed must be acknowledged and registered, in the same manner as is re- quired in the transfer of a fee. * * * ‘‘The distinction is obvious. Licenses to do a particular . act do not in any degree trench upon the policy of the law which requires that bargains respecting the title or interest in real estate shall be by deed or by writing. They amount to nothing more than an excuse for the act, which would other- wise be a trespass. But a permanent right to hold another’s- land for a particular purpose, and to enter upon it at all times without his consent, is an important interest, which ought not to pass without writing, and is the very object provided for by our statute. If the defendant had a license, from the former owners of the plaintiff’s close, to make the bank, dam and canal, in their land, this extended only to the act done, so as to save him from their action of trespass for that partic- ular act; but it did not carry with it an authority, at any fu- ture time to enter upon the land. As to so much of the license as was not executed, it was countermandable ; and transferring the land to another, or even leasing it, without any reservation, would of itself be a countermand of the license. For although when one is permitted to do certain things upon the land of another, an implied authority is given to enter upon the land to do the thing, and to repair it, if it is of a permanent nature, yet the first permission or license must be by grant, in order to draw after it this consequence.” 12 \ In Mnmford v. Whitney, 15 Wendell, 581, at 393 (1836), the Court Savage, C. J., said: ‘‘If A agree with V> that B may huild a dam upon the land of A, or across an island, as in the present case, if it is to be permanent, or anything more than a mere temporary erec- tion, such an agreement is not technically a license. The ob- ject of A is to grant, and of B to acquire an interest which shall be permanent; a right not to occupy for a short time, but as long as there shall be employment for the water power to be thus created ; can such an interest, such a right, be created by parol! As Mr. Sugden says of the case of Wood v. Lake, ‘It appears to be in the very teeth of the statute which ex- tends generally to all leases, estates or interests/ It declares that all leases, estates, interests of freehold, or terms of years, or any uncertain interests, of, in, to or out of any lands, made by parol, and not in writing, shall have the effect of estates at will only. To decide that a right to a permanent occupa- tion of the plaintiff’s land may be acquired by parol, and by calling the agreement a license, would be in effect to repeal the statute.” Even a license to erect a permanent dam on another’s land, or overflow another’s land, must be hy deed, for it is the sale of an estate in land. Broivn v. Woodivorth, 5 Barb., 551. Hotaling v. Hotaling, 5 Barb., 379. Davis V. Toivnsend, 10 Barb., 338; Id., 496. An agreement for perpetual flowage is an absolute sale of an in- terest and right of perpetual possession. Thus in Fitch v. Constan- tine Hydravdic Co., 44 Mich., 74, in that case is stated by the Court, Campbell, J. : “It appears that on the 31st of July, 1873, defendant, hav- ing been organized for hydraulic purposes, and finding it nec- essary to build a dam in "the St. Joseph River to get the requi- site facilities, entered into a written agreement with a number of riparian owners, including Fitch, for the purpose of ‘ob- taining the right to perpetually flow such lands as may be nec- essary to the erection and maintenance of their water power as aforesaid.’ The agreement proceeded as follows: It was first provided that the land owners would agree to allow the defendants to erect their dam and raise the water until August 1, 1874, without objection, and that at that time each should convey the necessary right of flowage to maintain the dam and power, provided defendants should pay such damages as had then accrued or might accrue, in the manner specified, which was — Firsts that dcreiidants should, within a reasoriahlo time after the aetiial amount of damage (!ould be as(*ertained, and before that day, pay sueh sum as should be agreed upon ; sec- ond, if not agreeing, tliat they should arbitrate in accordance Avith the statute, the award to fix the damages and provide for a conveyance; or, third, that the lands might be condemned. ‘‘Articles of arbitration were thereafter entered into, but did not fix any Court in which judgment should be rendered. An award was made of one hundred dollars, but judgment of confirmation was vacated on the application of Fitch. The award was signed by one of the two arbitrators named in the agreement of submission. “Fitch afterwards notified defendants to abate their dam, and on failure thereof brought suit. The Court held he could not recover, basing the ruling on the arbitration and refusal to accept the tender of the amount awarded. ^ * The work which such companies erect must nec- essarily be designed for permanence, and when they are given a right of flowage, it resembles the rights procured by other corporations, such as railways and canals, of subjecting land to permanent conditions in the use of permanent structures. The ivritten agreement already quoted provides for a perpet- ual use, and contains no clause of forfeiture on default. It contains provisions whereby the land owners can obtain dam- ages under provisions capable of legal and equitable enforce- ment. The damages are payable once for ah. The agreement is an absolute sale and right of immediate and perpetual possession, in consideration of a future payment. It is in no sense a license of a revocable character. It is in its necessary meaning a grant as irrevocable as any other grant or sale on time and for credit. The interest once granted is no longer permissive but absolute.’’ It, if valid, conveys an estate which precludes the grantor from any use inconsistent with the beneficial exercise of the flowage right. Phillips v. Watuppa Reservoir Co., 184 Mass., 404, 08 N. F., 848. The interest purported to be conveyed by the foivage contract is perpetual. No loords of inheritance are necessary to the crea- tion of a perpetual right of, flowage. Cole V. Lake Company, 54 N. H., 242. Clark V. Strong, 105 N. Y. App. Div., 179. Siveetland v. Grants Press Power Co., 46 Oregon, 85. Phillips V. Watuppa Reservoir Co., 184 Mass., 404, 68 N. E. Rep., Mass, 848. So li j)ei-i)etiial riglit is conveyed by sucli a contract conferring a rigid ‘bso long as the grantee, liis heirs or assigns, perform the {'onditions and pay a certain sum annually.” {Tuttle v. Harry ^ 56 C^'onn., 194; 14 Ath, 209), or using the words ‘‘heirs and assigns” so long as grantor shall keep pits, etc., without forever’^ (9 Allen, Mass., 159), and the words “successors and assigns forever,” without “heirs” (46 Oregon, 85, supra) ; and “as long as the sec- ond party or any of their family own or occupy” (105 N. Y. App. niv., 179, supra) ; create estates of easement in fee (in the latter cases determiuahle fees) ; Imt perpetual rights subject to be di- vested, etc. So, a lease of the right to draw water from the canal of the lessor to the mills of the lessees “for and during their pleasure,” without words of inheritance or other limit of time, was held to confer a right of perpetual enjoyment. (1874) Cole v. Lake Co.y 54 N. H., 242. A luminous discussion of the subject will be found in the case last cited. The common-law rule requiring the word “heirs” in the crea- tion of an estate of inheritance by deed is inapplicable in creating a permanent easement. Chappell v. New York, A. H. S H. R. Co., 62 Conn., 195 ; 24 Ath, 997. (A. D. 1892.) H and T entered into a written agreement, under seal, “that the said H agrees and consents for the said T to back water, if neces- sary, up into his field, on condition that said T will allow the said H as much woodland along the line fence on the south side of the river. Said T is allowed to raise a dam eight or nine feet high. This agreement to remain good as long as T keeps up a mill at the W place; afterwards, to be null and void.” Held, that the easement conferred on T by the agreement ex- tended to his heirs, though the agreement contained no words of inheritance. Hall v. Turner, 110 N. Car., 292; 14 S. E., 791 (N. Car., 1892.) So it is held that a contract by which a land owner gives to an- other the right to convey water from a spring is not a lease. The Court said : “The parties have also therein referred to the rights grant- 15 0(1 or MgTOod upon as a ‘ privil(‘^>^o.’ If llio a^>rooin(;rii is oon- sidcrod as a more li(!Oiisc it was revoked })y tlie death of the licensor even if there was a (lonsideration paid therefor. ( Wise- man v. Liiclx singer, 84 N. Y., 31; Echerson v. Crippen, 110 id., 585; Cronlxhife v. Cronhliite, 94 id., 323.) We tJmik the agree- ment icas an attempt to convey all easement in the grantor\s lands. Tlie right to lay pipes over real property and convey water from a spring thereon is an easement for the benefit of the dominant estate. {Nellis v. Munson, 108 N. Y., 453.) The term in the agreement is stated to be ‘as long as the second party or any of their family own or occupy said lands.’ An interest for such term is not an absolute fee, because it is pos- sible that it may at some time be terminated. It is a base or qualified fee or freehold estate. (Gerhard Titles, 4th Ed., 115.) “The agreement not having been executed and delivered before at least one witness, and not having been acknowledged, does not take effect as against a subsequent piirchaser or in- cumbrancer of the grantor.’^ Clark V. Strong, 105 N. Y. App. Div., 179. So a grant of the right to “flow and overflow” lands and au- thorizing the grantee to build a dam maintaining the waters of a pond at a certain height, implies the right to have the land left as part of the reservoir so to be formed and filled with water, and as such precludes any use by the grantor inconsistent with the grant. The owner could not fill up the land so as to exclude the water. Phillips V. Watuppa Reservoir Company, 184 Mass., 404; 68 N. E., 848. A grant to a power company and “its successors and assigns forever” of the right to go on land on the bank of a river and construct an abutment for a dam and to keep the same in repair is a grant of an easement in fee. Siveetland v. Grants Pass Poiver Co., 46 Ore., 85; 79 Pac. Rep., 337 (Oregon, 1905.) “An easement in gross where the grant is to the grantee, his successors and assigns, is capable of assignment, and is therefore in perpetuity, though not technically in fee. 10 A. & E. Ency. L., 2d Ed., 403; Houston v. Zahen, 44 Ore., 610 (76 Pa., 641) ; 65 L. R. A., 799; Pinkum v. City of Eau Claire, 81 Wis, 308; (51 N. W., 550.) The difference is said to be purely u; te(‘.lini(*al and does not alTeet any substantial right in the prem- ises.” H)i(L These decasions conclusively settle the law that a validly created perpetual right of flowage is not a license but a perpetual interest in the land — and a contract which purports to confer such right without limit of time, purports to confer a perpetual interest, and when made for a money consideration purports to make a sale thereof. By the Canal Acts the Commissioners were empowered to make three kinds of contracts concerning canal lands: 1 . Sale at public auction. '1. Water-power leases of power and lots and lands at i)ublic auction for twenty years. d. Land leases for twenty years. The contract of perpetual flowage is not No. 3. It is not a lease for twenty yec.rs. It is not No. 3, a water-power lease for twenty years. It is a sale of an interest, but not at public auction. It vio- lates the statute and is void. When the order of these events is considered, it is seen that they comprise an original intention by the Commissioners to sell and by Munroe to buy and an advertisement of the riparian tract for sale, then a postponement of that sale, then the making of the flowage contract without advertisement, which amounted to a sale. The flowage contract left to the Canal Commissioners only the naked title to the riparian tract and to the ninety-foot strip throughout these six sections and more — and they merit the in- quiry of this Court in Woodward v. Seeley, 11 111., 165, viz.: ‘‘Of what avail is it to a man to have the naked title to a . piece of land which he cannot use, but which, in spite of him. another has the right to keep forever covered with ivaterf^’ 17 T. THE FT.OWACiE CONTRACT (JRANTINO THE RIGHT TO Fl.OW THE 90-FOOT STRIP, THE TOW-PATH BANK, AND THE RIPARIAN TRACT IN PERPET- UITY IS A sale of real estate. 1. As such sale it violates the statute forbidding a sale of canal real estate, except upon advertisement and to the highest bidder, and is void. (See Act of 1899, Sec. 8, Cl. 8, cited herein at p , supra.) 2. As such it is an attempted sale of the 90-foot strip and vio- lates the statute reserving the 90-foot strip from sale. That such a contract conferring the right of permanent flowage of land is a sale and grant of an estate in land, see the following authorities : (1849) WoocUvard v. Seeley, 11 111., 157. Wilmington Water Poicer Co. v. Evans, 160 111., 548. Deyo V. Ferris, 22 111. App., 154. Mumford v. Whitney, 15 Yvend., 381, 393. Cook V. Stearns, 11 Mass., 533, 536-8. Nellis V. Munson, 108 N. Y., 453. (1887) Fitch v. Constantine Hydraulic Co., 44 Mich., 76; S. C., 6 N. AV. Eep., 91. THE FLOODED AREA. The area to be flooded in pei'iietuity thereunder is : (a) The ninety-foot strip through three canal sections (25, 31 and 29) expressly named. (b) The ninety-foot striji up stream so far as it bordered the river. (c) The liiparian Tract in Section 31 lietween the canal and the river. (d) The tow-iiath liank. The riparian tract, subject of the flowage contract, lease and deed, is frecjuently referred to in the re('ord as the “so-called 17-acre tract.’’ Counsel for defense put in evidence (p. 2697) from the Canal IS lk(‘'j)()i-i of under the title “Unsold (hinal I^ands Xovemljer :>(), 1{)()0,” the following item, on [)age 4-2: “l.ols. Block I Valuation KANKA KUU. ! docks dO, :n, 22, :u, 27 , 2S, 29 , 40 and 42, be- ing in Se(*tion 21, township 2)4, liange 9 Kast, 2rd P. M., containing 16 22-100 acres, at $25 i)er acre MORRIS.” $408.00 Total $408.00 This is listed as containing 16 22-100 acres, and on page 2699 counsel for defense states it to lie “the 16-acre tract for which we gave yon $2,200. ’ ’ This listing hy the Canal Commissioners is the source of a se- rious error on their part. Commissioner Sackett and Superin- tendent McDonald continually refer to the tract as the so-called “17-acre tract.” In reality the tract so described and listed is so much of this riparian tract as lies north and west of the Kankakee feeder and less than one-third of the tract. The “Town of Kankakee,” of which these lots were so listed as ])art, is not the present City of Kankakee, hut the old town of Kan- kakee, located at the confluence of the two rivers of which the State put in the plat (Transcript, p. 4424). This is apparent from the fact that the lots are listed in Section 21, Township 24 North, Range 9 East, in which Johnny Beard’s Town of Kankakee is located, while the present City of Kankakee is several miles wide. That the riparian tract, in fact, had a much larger area is easily demons tr able. The Court judicially knows the principle of mathematics of which the rules of mensuration are a part. By the rules of mensuration the area of any tract of land whose dimensions are known can readily be ascertained. The area of an irregular tract of land is ascertained hy dividing it into triangles at every change of the direction of the ])oundary lines and by adding the areas of the triangles together. Applying this method to the tract shown upon Hille])rand Exhibit 2 as the 19 tract conveyed by tlie deed of the Coniinissioners, its ar(‘a is read- ily ascertained. The irillebrand Exliibit 3 is proven l)y the testimony ot* Mr. Ifille- brand to be a true and correct plat from actual survey truly drawn to the scale of 100 feet to the inch. The dimensions of the tract are therefore given and its area is ascertained in the manner above described. Applying this method, the area is ascertained: 1. Of the tract {excluding the 9t)-foot strip along its northern edge and) extending on the south edge to the meander line of the Eiver Des Plaines, which is shown by the marginal line of the river, which is 32.59 acres 2. Of the area of the adjacent north half of the river between the marginal line and the middle thread of the Des Plaines, claimed by defendant, which is 26.33 acres Total area, riparian tract 58.92 acres The area of the feeder right of way 240 feet wide lying south of the center thread of the Des Plaines is 3.51 acres additional — and of the 90-foot strip in this section (which, though formally excluded from the deed, was to be flooded in perpetuity, under the flowage contract) was in all 17.71 acres. THE FLOODED AREA OF THE NINETY-FOOT STRIP. The area of the 90-foot strip less the 12 feet at the top of the tow-path is 6670x78. What the defendant was to get in all was 80.14 acres. The Ilillebrand Exhibit being drawn to a true scale and sworn to be correct from direct survey of the field, the dimensions of the entire tract are truly shown by it. In Scanlon v. San Francisco S S. J. V. By Co. (Sup. Ct. of Cal.), 55th Pac. Rep., p. 694, the Court applied the rule which we invoke here. They held from an inspection of plans which gave measure- ments that they were able to and did compute the area and con- tents of the railway eml)ankment and affirmatively held the testi- 20 inony of witnesses to a different set of figures to be wrong. The Court said: The Court takes judicial notice of the laws of nature (Code Civ. Proc., Sec. 1875, subd. 8), among which are the jjrinciples of mathematics. The science of mensuration, which must control in this case, is a branch of pure mathematics, with which the Court is presumed to be acquainted. By the rules of mensuration, the contents of an irregular prismoidal body, such as a railway embankment, is ascertained by divid- ing it by vertical planes at every change of contour of the un- derlying ground into a series of prismoids, and computing the contents of each of these prismoids by adding together its two end areas and four times its middle area, dividing this sum by six, and multiplying the quotient by the length of the pris- moid. The product will be the actual contents of the pris- moid. See Enc. Brit. (9th Ed.), art. ‘Mensuration.’ This method was not employed by the witness. His method was an approximation, which assumes that the middle area of a pris- moid is equal to half the sum of its end areas. This is true only in the case of a prism, or in a prismoid consisting of the frustrum of a regular pyramid. This approximation, it is true, will give results correct enough for practical purposes in very uniform embankments, where there is but little differ- ence in height. But in other cases its results are always too large, and it would be easy to suppose cases in which the ex- cess would be greater than the difference between the esti- mates of the respective parties in this case.” And see cases cited on Judicial notice herein. That the Commissioners should carry the property on their . books in one description and then should contract to flood it, should lease it and should sell it by another description covering three and a half times as much area, is one of those gross mistakes which of itself justifies the vacation of the contracts, if they were valid in other respects. The Court took such action in Macoupin Co. v. People, 58 111., 191, and in Beall v. Dingman, 227 111., 294, and as applied to water areas in Fuller v. Shedd, 161 111., 462, at 481-2. And when the value of the water-power rights in the property claimed by the defendant as included in the transfer is considered, the disparity of the consideration received is beyond debate. 21 IT. THE FLOWA(iE CONTRACT IS BEYOND THE POWERS OF THE CANAI. COM- MISSIONERS, AND IS VOID. The Canal Commissioners are statutory officers. They derive their powers from the statute. They have only enumerated spe- cial powers. These are set forth in ‘‘An Act to revise the law in relation to the Illinois and Michigan Canal, and for the improve- ment of the Illinois and Little Wabash Rivers,’^ as amended by Act of April 21, 1899, L. 1899, p. 82, 4 Starr & Curtis, Ch. 19, pp. 89-91. Power to make this contract will not be found there. The Commissioners have no powers by implication. Statutes delegating powers to public officers are strictly con- strued, and all parties interested must look to the statute for the grant of the power. Acts of the Commissioners not within the terms of the statutes are void. (1837) 111. & Mich. Canal v. Calhoun, 1 Scam., 521. (1907) Diederich v. Bose, 228 111., 610, affirming S. C. 133, 111. App., 384. State of Illinois v. Delafield, 8 Paige’s Chy., 528. In these cases, contracts by the Commissioners which were ad- vantageous to the canal property were defeated because they were outside the xiowers granted by the Commisisoners. In 1 Scammon, 521, the Commissioners in selling lands in 1837 auneNed unauthorized conditions thus : “That in case any holder shall fail to comply with the terms of the sale, during the days of sale, on which the sale of the lot is made, his bid will be forfeited and the lot resold, the first purchaser being held accountable to the Commissioners for any loss that may accrue trom the sale, but entitled to no profit therefrom.” In that case the Commissioners sold lands on these terms, and the Commisisoners resold the lands at a lower iirice and then brought suit against the bidder. Judgment on demurrer for de- fendant was affirmed. The Court said (pp. 522-3) : “P>y the provisions of the act referred to, creating the Canal lioard, it will })e ()})vi()ii8 that the (k)iiiinissi()iiers were not au- th()]-iz(Ml to annex to the ('onditions of the sale, the teians ini- ))osed hy the notice given. The second section of tlie Act of (^)ngress, having heen the mode adopted by the .‘Uitli section of the a(*t (pioted, for the government of the sales, tliey were not at liberty to im))ose otliers, or substitute tliose that would jm])ose conditions of tlie cliaracter descril)ed. The refusal by the i)urcliaser to pay for tlie lot in the manner provided by law, on the day of sale, reipiired them to ])ut uj) the lot again for a re-sale, and to prohibit such purchaser refusing to pay for the lot jireviously purchased from being a bidder for any other lot on the day of sale. # * * * # # * # * * * ‘^If this reasoning be correct, it followvs as a consequence, that by the adoption of the penalty of forfeiture of the bid of tlie delinquent purchaser, and the prohibition to become a pur- chaser of any other lot at the sales, are the only terms which the Commissioners could legally impose and enforce. They had no discretion to exercise any other powers than such as are conferred by the act ; and those adopted are not among those granted.” In Diederich v. Bose, 228 111., 610 (affirming 133 111. App., 384- 391) the Commissioners having power as to canal lots and lands in Chicago to lease for 20 years and no power to sell same, made a lease containing the following provision: ‘At is expressly understood and agreed that at the expira- tion of this lease, if the party of the second part should be un- successful in obtaining a renewml of the same, that the party or parties to whom the canal commissioners may lease said premises shall be required to purchase and pay for the build- ings or structures owned by said party and situate on said lot at an appraisal to be made by three judicious, disinterested freeholders— one to be chosen by the Canal Commissioners or authorized agent, one by said party of the second part, and the third appraiser to be selected by the two thus chosen.” The lessee (appellant) made such improvements. Pending the lease the statute was changed so as to authorize the Commission- ers to sell the land, and they sold it to one Harmeyer subject to the lease; Harmeyer sold to Eose (appellee), who asserted title to the improvements and denied the right of appellant. Whereujmn appellant tiled his bill to establish his lien under the clause above quoted. This Court said : ‘^Statutes delegating powers to public officers must be strictly (‘onstrucd, and all parlies itdxn-(‘st(Ml must look to tin; statute for the i»i‘aut of power. (2 lj(*wis’ Sutli(*rlarid ou Stat- utoi*y (\)ustructiou, 2d ed., Se(*. 51)2; Illinois (iftd Michif/an Canal v. Calhoun, 1 Scam., 521 ; Hfale of Illinois v. Delafialrl, cS Paige’s Oh., 528; 2() iVm. (fc Kug. hhi(*.y. of Law, 2d (;d., p. 1)55, and autliorities there (hted.) Under the A(‘t ot 1851) this Oourt held that the Canal Conmiissioners liad no authority to annex other conditions or terms than those provided in the act. When the language is clear and admits of hut one meaning there is no room for construction. Courts cannot change tlie clear meaning of words used, even though the conserpiences ap- ])ear not to be such as were contemplated. {St. Louis S Cairo Railroad Co. v. Postal Telegraph Co., 173 111., 508; 26 Am. & Eng. Ency. of Law, 2d ed., p. 598, and cases there cited.) We are of the opinion that the Canal Commissioners had no i)ower to provide, as they did in tliis lease, that if the premises should not be re-let to appellant then the new tenant should he required to take the improvements at an appraised value.” This being the law, what then were the powers of the Canal Com- missioners on September 2, 1904, in respect to the matters here contracted about? These ])owers are defined hy the act of A])ril 21, 1899, amend- ing the ‘LVet (of 1874) to revise the law in relation to the Illinois and Michigan Canal and for the im'i)rovement of the Illinois and Little lUabash Livers” (L. 1899, p. 82; 4 Starr & Curtis Supple- ment by Jones & Addington, Ch. 19, p]). 89-91), as follows: ^^Par. 2. Powers of Commissioners. — -Se(‘. 8. Said Com- missioners shall have control and management of the Illinois and Michigan Canal, including its feeders, basins and appui*- tenances, and the pro})erty thereto belonging, and all locks and dams and other improvements of the navigation of the Illinois and Little AVahash Rivers, and shall have authority : *********** Second — ^To prescribe reasonal)le rules and I'egulations in res])ect to all matters connected with the navigation and use of the said canal, locks and dams and transportation on or through the same. * * * power granted in this arti- cle shall apply as well to that part of the south branch of the (4iicago River within one thousand feet of the lock at Bridge- port, and to the canal basin at or near the termination of the (‘anal on the Illinois River, and to that part of the Illinois and Little M^al)ash Rivers above and below the several locks and (lams within one tliousand feet thereof, and to all feeders, l)a- sins and latei-als as to the canal, locks and dams. *********** ‘VKiftli — To leas(i fi*oin time to time any of tlie canal lands or Jots owned by the State: Provided, no lease shall be for a period exceeding twenty years. Sixth — To lease from time to time, to the highest bidder therefor, any water power and lands or lots connected there- with. Before any such lease shall he made, at least thirty days’ public notice of the intended letting shall be given by pul)lication in some newspaper published in the neighborhood, and such other notice as the Commissioners shall deem best. The Commissioners shall have power to require that bids be accompanied by security, and may reject all bids not satis- factory to them, and readvertise until they shall receive sat- isfactory bids. No lease shall be for a period exceeding twen- ty years, but the Conunissioners may provide for the exten- sion of any lease from time to time, not exceeding twenty years at any one time, at a rent to be fixed by an appraisal, to be made by three disinterested appraisers, to be appointed by the Governor, and such appraisal shall be subject to the ap- proval of the Commissioners. All leases of water power and extensions thereof shall be subject to the right of the Commis- sioners to resume, without compensation to the lessee, the use of any such water power for the purpose of the canal, and also wholly to abandon or destroy the work by the construction of which the water privilege shall have been created, whenever, in the opinion of the Legislature, such work shall cease to be advantageous to the State. Seventh — To lease from time to time to the highest and best bidder (after publishing notice in some newspaper in the County where the ice privilege to be leased may be), in sec- tions not exceeding one thousand feet, lineal measure, upon such terms as not to interfere with the proper use and man- agement of the canal, the right to take and harvest ice there- from, or from any of its feeders, basins and appurtenances, and to prohibit all persons from taking and harvesting ice therefrom without such lease: Provided, no such lease shall be for a longer time than, twenty years. ‘^Eighth — To sell and convey, whenever in their judgment the interest of the State will be promoted thereby, any canal lands or lots now owned by the State other than those con- nected with water power upon the said canal and the ninety- foot strip along the canal. But before making any such sale they shall obtain the approval of the Governor thereto, and to the time, place and manner of making the same: Provided, that before any such sale shall be made, thirty days ’ previous notice thereof shall be given in some newspaper published in the County where such land is situated. And said land shall be sold at public auction to the highest and best bidder.” Nothing can be found in this statute or any other giving the (\>ininissi()nors power to nioke a (*()ntra(‘t autliorizino- an individual tor his private gain. (I) To build a water-power daiii a('ross the Des Plaines, d(ief)en the Illinois and maintain these works in perpetuity. (1^) To attach (ajid maintain in perpetuity) the water-power dam to the tow-path and canal embankment which was l)uilt by tlie Canal Anthorities and is needed to retain the canal waters in place. (3) To flood in perpetuity this canal embankment and use it as a retaining wall for the water-power pool. (4) To flood in perpetuity the reserved 90-foot strip of land bordering the canal. (5) To raise the tow-path, attach and enclose a levee thereto, use the gravel and other material (building stone, piers, etc.) of the canal in constructing such works and perpetually maintaining the same. (6) To enter upon or fill in portions of the canal in perpetuity for the purpose of maintaining such works. (7) To maintain a line of power poles and wires, 25 miles long, upon the tow-path of the canal. (Ex. K, Abst., p. 77.) f (8) To flood in perpetuity the canal riparian lands between the Des Plaines River and the canal. (9) To excavate and remove (i. e., destroy) so much of the canal feeder acquired and constructed by the State at great ex- pense as part of the canal (and which formerly fed the waters of the Kankakee River into the canal) as extends into and north- wardly beyond the Des Plaines River (Ex. A, Clause 8; Abst., p. 30) and to use the remainder of the Kankakee Eeeder as a tribu- tary of the defendant’s proposed water-power plant. (By lease. Ex. C, Abst., p. 30, for 20 years, with jjrovision for renewal sub- ject to right of cancellation.) (See, also. Ex. A, Clause 5.) (10) To appropriate the waters of the Kankakee River and empty them thereby into defendant’s water-power ])ool above the dam instead of letting them flow naturally into the Illinois below. (II) To divert and turn back from the Des Plaines River the tributary stream known as the Kankakee Cut-otf and make it run liarkward and into tlio Kankakee Kiver as an outlet or spillway for liigli wat(M*s fi'oni the water-power pool — oi* to do any other of the tilings aiitliorized l)y the flowa^e ('on- tract. The ])rovision about ‘‘perpetually” is in a peculiar form — tliaT the grantee sliall “ ])erpetually tliereaftei* maintain tlie same in good condition.” The grantee could not perpetually maintain it in good condition without perpetually ])eing in possession of it. Tn other words, the contract was a contract in perpetuity, and therefore not valid. The Canal ( ■ommissioners had no authority to grant any such con- sent. The Ckinaf Commissioners had no power to authorize them to entei* upon and in the canal and put structures in the canal as they have done. Tliey had no right to give away the feeder, nor to authorize them to overflow' this land in perpetuity. The contract to oveniow that land in perpetuity was itself equivalent to a sale of the land; and when the public sale was postponed it afterwards was privately consummated in effect by means of this contract of dowage. III. THE CANAL LEASES AKE ILLEGAL AND VOID. Having made the sale of the easement in reality at a private sale to Munroe by means of this flowage contract, the Commissioners then leased the naked legal title of the riparian tract to him for twenty years with pirovision for renewal. On the same day they gave him, his successors and assigns, the lease K — being a twenty year lease of the tow-path itself for !25 miles, for the ])urpose of maintaining a line of trolley jioles thereon — eleven months later, August 8, 1905, they gave him (Exhibit of Information) a lease for twenty years of the Kankakee Feeder, with a t)rovision for renewal for twenty years more at rent to be fixed by a])praisal. The statute will be searched in vain for any authority to give such renewable lease as Exhiliit B (Abst., p. 34), or for any au- thority to make the Kankakee Feeder lease Exhibit C, or for any 'll auiliorily to i>i\“mt tli(‘ ri^lit to maintain a ‘Jo-inilc* troll(;y [;oI(; lira? on tile tow-|)atli. In the land lease !>, the lessee (‘ovenanted on his pari: (1) i\) i)ay the rent (and paid it) and (2) idiat he was eharged with knowledge of the flowage con- tra et, and (0) To pay $500 more for a second twenty years, and (4) To notify the Commissioners of his election to take a sec- ond twent}^ years, one year before the expiration of the first twen- ty years. In return the Canal Commissioners — (1) Leased to him and his assigns the following premises : (a) The riparian tract, and (h) The 90-foot strip throngh six sections of land, and (c) That part of the Kankakee Keeder and the 90-foot strip on each side of it throngh two sections of land (Sections 31 and 5) for twenty years, snliject to the flowage contract; (2) Covenanted that in case the Commissioners shonld deter- mine to re-let the property, then '‘the said pcnii) of the second part shall have the first right to release the same/’ (d) For* as ninch as shall he offered hy anyone else; (e) Or an a])praised rental fixed hy three ap|)raisers, hnt not less than $500; (f) Took an absolute covenant from him to ])ay $500 for the second 20 years. 1. The lease, exhibit b (September 2, 1904), by its renewal CLAUSE VTOl.ATES THE STATUTE. The renewal (hanse is set forth at Abst., ]). 35, and is plainly part and parcel of the contract of lease and not a separate con- tract. It provides : ' 'It 18 furtJter understood and agreed * * * that in case said ])arty of the first part shall determine to re-lease the land herel)y demised at the expiration of this lease, that then and in snch event, the said party of the first part, shall have the first right to re-lease the same hy paying therefor as mnch as shall he offered l)y any other '])erson or party therefor; Pro- vided, however, that snch rental may at the o|)tion of said ])arty of the first part he ascertained, determined and fixed by three a])praisers, one to he chosen by each of the ])arties here- to and the third ])y the two thus chosen, Imt in no event shall tlie rent l)e less tlian the amount fixed in this lease; the said party of the second part hereby covenants and agrees that he tuill and he 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/^ The instrninent has many seeming inconsistencies, ])ut here is an absolute covenant to pay for tlie second term the same rental as is paid for the first term. Not only there is no authority granted the Commissioners to make such a 40-year contract, but the statute expressly forbids the making of such a contract. This was a power which ^‘tlie Legis- lature had not only negatively denied them, but had affirmatively, so to say, taken away from them.” (Diederich v. Rose, 133 111, App., 391.) The statutory grant of power to the Commissioners to lease is as follows : ‘‘Fifth — To lease from time to time any of the canal lands or lofs owned by the State ; Provided, no lease shall be for a period exceeding twenty years^ The attempted grant of this right of renewal is in violation of this statute, illegal and void. Illinois and Michigan Canal v. Calhoun, 1 Scam., 521. Diederich v. Rose, 228 Ilk, 610; affirming Id., 133 111. App., 391. State of Illinois v. Delafield, 8 Paige’s Chy., 528. This renewal clause amounts in itself to a lease for the extended term (so held in case of a water-power lease) (Per Dixon, C. J.) Noonan v. Orton, 27 Wis., 300; S. C., 31 Wis., 265. 2. THE LEASE FOR PURPOSES OF FLOODING THE 90-FOOT STRIP AND THE TOW-PATH BANK ENDANGERS THE CANAL AND IS AN INVASION OF THE CANAL. The 90-foot strip, the tow-path (nut the herm haul; are integral parts of the canal. Such leasing of several miles of the 90-foof strip and toiv-path bank for private purposes which are inherently dangerous to the canal is beyond the power of the Canal Commissioners. The contracts authorize the flooding of the 90-foot strip along 29 the line of tlie eanul tlironj>li six seetions of hind. For a ij^ri^at l)art of this distance tlie canal is so located that less than 90 feet of earth intervene between water’s edge and water’s edge at the low water stage of the river in its ])resent condition, ''riiis sti-ip, less than 90 feet wide, is occupied by an artificial embankment, on the top of which is the tow-path. The level of file water at the bottom of the canal is about 18 feet above the level of the river; and defendant purposes to submerge this bank to a depth which will bring the water in the river up to the level with this water in the bottom of the canal, the two bodies of water being separated only by the artificial bank. Defendant further proposes to raise the tow-path two feet higher and broaden the bank by filling in on top without increasing its breadth on the river side, but filling on the canal side for about 5 feet. A slight berm had been formed on the canal side of the bank near the surface of the canal water; and defendant’s filling on the canal side covered this berm. ^‘BERM (also written berme) * * * 1. A narrow ledge; specifically, in fortification, a space of ground or a terrace from 3 to 5 feet in width, left between the rampart and the moat or foss, designed to receive the ruins of the rampart in the event of a bombardment, and to prevent the earth from filling the foss. * * * 2. The bank or side of a canal which is opposite to the tow- ing path. Also called berm-bank.” (Century Dictionary Definition, Vol. 1, p. 529. The same discrimination against the State appears throughout. The defendant may select its assignee of the contract and respon- sibility. The State can not object. The defendant’s bank is made 113 feet wide, slopes varying from two and one-half to four to one, paved with hand-placed and tamped stone. The canal bank is left 68 feet wide, except for five feet filling on the canal side invading the canal, and leaving the defendant’s pool undiminished by filling. The filling was only the dump of a general spoil-bank. (Testi- mony of Rudolph, Trans., p. 2250; Abst., pp. 772-773; testimony of Kramer, Trans., p. 355; Abst., [>. 355; testimony of Bremer, Trans., p. 2281; Abst., ]). 780; testimony of Benezette Williams, Trans., }). 638; Abst., ]). 337 ; testimony of Cooley, Trans., pp. 2520- ;]() 2.)o(); Al)s1., ])j). S4()-84S.) No ))laTis were made for any further treatment. And tlie witness Ileywortli testified that the work on the hank was (‘omphded. (Trans., ]). 7()9; Ahst., p. d78.) Defendant’s witnesses afterwards modified this, but tlie admis- sion against interest should be taken most strongly against the de- fendant. This slender bank (about 32 feet thick at the bottom of the canal and top of the water-power ])ool), between these two bodies of water, is an inade(piate ])rotection of the canal, if the additional ))urden is to l)e brought against it. The canal is seriously im- periled by the construction of this work. When the Drainage Channel was laid out alongside the river, the Drainage Commissioners diverted the river and pushed it over into a new bed from 600 feet to half a mile away from the Drain- age Channel and built high retaining walls for the Drainage Chan-, nel and levees for the river. Such a course is impracticable here. The land rises from the canal in a steep bluff (^^ Dresden Heights”) so that it would be impracticable to move the canal more than 10 feet away from the river, and then only at a great cost, involving the building of substantially a new canal at this point. It is obvious that a bank, at least as strong, would be needed for the side of the pool at its foot as for its adjoining end. The plans of the defendant gave its own works a bank substan- tially double the thickness and strength that they gave the canal. This condemns the scheme at the outset as inherently dangerous, and the testimony of the witnesses for the State left no doubt on this point. THE NINETY-FOOT STRIP. In the construction of the Illinois and Michigan Canal there was set apart and properly dedicated, a strip of land ninety feet in width on each side of the basin of the canal, to lie used in connec- tion with the canal and as a part and appurtenant therto. This applies to the sections of land owned by the State of Illinois, to wit, the odd numbered sections of land. In the even numbered sections of land that were retained by the United States Government the Supreme Court of the United States, in Woerlmp v. IngersoU, 181 •) • > V. S., 1»)1, lield itliat there was ^iveii })y the lIiiitcMl Stat(is a suf- heieiit aiiioiiiit ot land on each side ot the basin of tlie e.arial to pro})erly support it and For ne(*essary use in eonneetion tht;rewitli, witliont referenee to whether the same was 1)0 feet wide or more, or less. We contend that this strip of land (90 feet in widtli on eacli side of the basin of the canal in the odd numbered sections, and whatso- ever width it may be in the even nnmbered sections), constitute a part and parcel, and a necessary part and parcel, of the canal itself; that the Canal Commissioners have no rigid, power or au- thority to alienate that 90-foot strip, or any part of it; that they conld make no contract that would subject that 90-foot strip to any use other than for the direct use of the canal itself, and that conse- (piently the tlowage contract, and the lease under which the de- fendant claims, are absolutely void. In Alexander v. Tolleston Club, 110 111., 65, this Court, speaking through Chief Justice Sheldon, says : The case in its general out- line as made by the proofs, is, that during the spring of 1871 cer- tain gentlemen of Chicago formed an association called the “Tol- leston Club,” the object of which was shooting and fishing in the Tolleston marshes. They purchased a tract of sixty acres of land in Lake County, in the State of Indiana, situate about one-half mile from the Little Calumet River, in said County, upon which were erected a clu])-house, and ])arn, outbuildings, and large boat-house, the buildings being of the value of some $10,000. The fishing and hunting of the members of the club could only be prosecuted in the Little Ckdumet River and the marshes adjacent to the banks there- of, in front of the club house. About that time Alexander, with S. 11. Turrill and dames 11. Foster, all being members of the club, purchased certain lands between the land of the club and the river and the marsh. In the fall of 1871 the club excavated a canal across the land of Alexander, Turrill and Foster, with their full knowledge and consent, at a cost of $2,500, it being for the purpose of })assing boats from the river to the boat-house, the latter being at the upper end of the canal, about one hundred yards from the club-house. The water being seldom of sufficient depth for the passage of boats, the members of the club were accustomed to tow or pole their boats from the marsh as far as the depth of the water 32 would allow, and walk the rest of the distance, following a uni- form path along the canal. The path was used only for foot travel. There was a plank walk, composed of two planks, and being about three feet wide, put down along this path, from the (‘lub-honse to the marsh, in 3875. * * * This Court said : ‘‘It is contended the lease gives no right to use the plank walk laid along the bank of the canal. The foot-path was ever in constant use by the members of the club, in connection with the use of the canal, from the time the canal was dug. The mode appears to have been for the hunter to have someone to paddle or push the boat, with its accoutrements in it, up and down the canal, and he would walk along the bank. A year or two after the canal was dug, from the taking away of a dam upon the river, the water in the canal became lowered, and to such an extent as to cause a disuse of the canal, in a great measure, but it cannot be said to have been abandoned. It rarely was used through its entire length or greater part but a portion of it next the river could always be and was used for the boats. This disuse of the canal increased more and more the use of the foot-path. Boats would land at various points along the bank, according as the depth of water admit- ted of the passage of boats, and the members of the club would walk the rest of the distance along the bank. The canal and this foot-path were the only practicable means of access from the river and marsh to the club-house back of them. When- ever there is the right of navigaMon there is the incidental right to use the hanks of the stream, to a greater or less extent as the purposes of navigation may require. The lease is, in terms, ‘all the ground in section 18 now used for said canal.’ We think this may not unreasonably be held as including all the ground then used, together with the canal, or in connection with the canal. This foot-path, we may infer from the evidence, was as much used in connection with the use of the canal as the canal itself was used. It had ever been so used before, and was so used at the time of the making of the lease, and has been ever since, until in 1881, with cer- tainly the knowledge and consent, and without objection, of the lessors. “It is the rule that whenever a thing is granted, all and every easements necessary to its beneficial enjoyment will pass. (Angell on Watercourses, secs. 158, 358). Although this foot- path was not absolutely necessary for the use of the canal, as is the toir-path in the case of an ordinary canal where the mode of propelling boats is by animal power, still its use ivas an actual, constant incident of the canal’s use, — such a conven- 33 ioiicc therein, and aecessory, and so tar neee.ssary, that its us(.* may, not iinpro})erly we think, be regarded as appurtr.iuntl to file vanaL and passing by the laasr ihrreof/’ (110 HI., 7o-f).) .“In ]\Ioryan et al. v. h*ass at (d,, 14 Fed., dod, tln^ ('onrt Drummond, d. says: ‘The jury found a verdict for the plain- tiffs in this case, under the instructions of the court, and th(‘ defendants liave made a motion for a new trial. Tt was an ac- tion of ejectment bronglit for a strip of land about 17 feet wide, more or less, lying on the canal basin, and claimed to be the northern part of lots 562 and 563 of Hanna’s Addition to Fort ? Wayne. Lots 562 and 563 were each 50 feet wide, and bounded on the east by Harrison street, on the south by Pearl street, and on the north by the canal, or canal land. On the plat which Hanna made, and which was recorded, the depth of these lots north and south was marked as 163 feet, but the lines of the lots extended to the canal basin, and, as the court thought, and so instructed the jury, they were intended by Hanna to extend to the canal, and therefore the northern boundary of these lots was on the line of the canal, whether it was more or less than 163 feet north of Pearl street. The court did not instruct the jury that this north line w^as necessarily the water line of the basin, but laid down some rules to govern the jury as to the quantity of land that was covered by the canal, stating that it included the bottom, sides, and the tow-path, and any portion of the adjoining banks that w^ere appropriated by the canal com- missioners and used for the purposes of the caned, stating at the same time that as the canal was intended as a means of communication by watei', it must be assumed that certain por- ,, tions of its banks 'were to be used for the purposes of com- rnerce, and for receiving and delivering freight along the line of the canal ; and the court also stated that there was nothing in the evidence to indicate how far from the water line on the banks of the canal the right of the commissioners or owners of the canal extended, and that in those cases where no ])or- tion of the banks of the canal had l)een appropriated for the ; uses of the canal, it must be assumed that the owners of ad- joining lots abutting on the canal wmuld own their property to . the canal, subject of course, to the uses of the canal, as hereto- fore stated. can have no doubt that these instructions thus given by the court were substantially correct, and that they laid down the true rules upon the subject.” In State of Ohio, ex red, etc. v. C. C. By. Co., 37 Ohio St. 157, the court holds : '‘This was a petition, in the nature of an information, brought by the Attorney Geneial of the State of Ohio, its ob- ject being: ’ ^ "To determine the authority of the defendant to occupy and iis(^ as a ti'a(‘k i‘ov its I'ailway a ])()rti()n of tlie ])enne bank of tlio Miami k Krio (kinal, belonging to tlie state, within the (y\)iinty of ilaniilton. This involves the poiver of the hoard of public worls of the state to enter into the agreement here- inafter set forth, witli the defendant, under wliieh the latter elainis the right to ])ernianently oceui)y and use for the pur- poses of its track, that portion of the l)erine bank of said canal lying ])etween Broadway, in the city of Cincinnati and the six mile stone, north of said city. It is alleged that this portion of the canal is in constant use for the purposes of navigation; that about one-third of the distance is composed of embank- ment ; one-third of the embankment on one side, and excava- tion on the other, and exclusively of excavation for the residue of the distance. ^‘The petition charges, that the contract under tvhidh the de- fendant claims to act is without authority of law, and is void, that defendant is making preparations to construct and main- tain its track on said bank, and threatens to permanently occupy and use the same as a railroad, which if consummated, will constitute a permanent trespass on the property of the state, and be a violation of its rights. ‘ ‘ The answer, after setting out the corporate character of the defendant under which it is authorized to construct and operate a railroad between the termini named, denies that it is acting without authority of law. It sets up a contract made with the hoard of public tvorks, under certain orders of the board dated January 4, 1881, the terms and conditions of which were in all respects complied with by defendant, by virtue of which it has the latufyl right to build, maintain and operate its railroad on and along said bank between the points named, in consideration of the payment of $500 per annum, and the performance of certain requirements of the board of public works. ^ ‘ The most cursory examination of the numerous provisions of laiv relating to the public works of the state will show, that while the legislature has freely granted the largest powers to the board for this purpose, it has at the same time, by regula- tions, prohibitions and penalties, sought to guard this property from, all encroachments , individual or corporate, and to pre- vent the acquisition of rights or easements in the canals or its hanks except by express authority of laws passed fgr that pur- pose. The board of public works possess no poiver to grant rights, easements or privileges for private advantage, unless expressly authorized by law. The statute authorizing the abandonment or sale of certain sections of the canals, the trans- fer to railroads and cities for their purposes, of other sections, the permission granted by statute to use the berme bank in certain instances, the leasing of the canals, the leasing of the surplus waters, the sale of ice, and the restrictions as to cross- iiig- by public rouds, and by railroads, all sliow that the board in the opinion of the legislature possessed no implied power to grant rights and privileges, or to create easements or burdens upon this public property in favor of individuals or corpora- tions. In each of these cases express authority was conferred by statute/’ ^^But it is urged, that the board of public works have not agreed to a/nythmg tending to destroy or impair the public uses to which the canals have been dedicated, but that this con- tract is imt ended to simply add an additional use, by so improv- ing the berme bank so as to be more useful to the canal. This is not a question of what is expedient or beneficial to the pub- lic. It is a question of power. If the board is vested with a discretion to subject the berme bank of the canals to a new USE FOREIGN TO THE ORIGINAL PURPOSE, and Competing with the canal as a means of transportation, ivhere is the limit of that discretion? The exercise of this discretion ivould in time great- ly impair the revenues of the canals, and ultimately destroy the canals themselves. ^ ^ In 18 Ohio St. 92, Hatch v. C. & I. R. R. Co., it was held: ‘‘The question here raised was whether, under the twelfth section of the Act of May 1, 1852, of Ohio, to provide for the creation and regulation of incorporated companies, etc., a rail- road company may, in the exercise of the delegated powers of eminent domain, appropriate to its use, for the purposes of a railroad, the land constituting the body of a canal acquired by the exercise of like delegated power, by a canal company, for the purposes of such canal, against the consent of the lat- ter. It was held that an appropriation of land by a canal com- pany for the purpose of a canal, in the absence of any contract or statute to the contrary, ivill be presumed to have included land for a berme-bank as tvell as for a toiv-path; and the exclu- sive power of the company over the land necessary for such bank is the same, whether it consists of a natural or artificial deposit of earth.” In this case, the trial court instructed the jury as follows: ' “I charge you, however, that a berme bank was needed for the use of a canal, and the necessity for it was not dispensed with in consecjuence of the location of the canal at the base of a hill; that it anstvered the same purpose there as elsewhere, namely, to support the crater, and could also be employed for other incidental ]uirposes, as at other places. It was there- fore the duty of the canal company to appro])riate or other- wise acquire land for a berme bank through the property of the plaintiff, of the dimensions of the herme bank of the Miami Tanal ; and the canal company must be presumed to have done its duty in that respect.” 36 This instruction was assigned for error by tlie i*ailroad com- ])any, but the Supreme C^ourt of Ohio says: “In what was said by the court helow in its charge to the jui'y, in res])e(d to tlie berine bank of the canal, we see no er- ror. A benne hank for the canal was necessary for the uses of the canal; and whether it (‘onsisted of a natural or arti- fi(‘ial deposit of earth (*an make no diff'erence. It must have fomaed a part of the orlfpimd appropriation tjy the canal, un- less tJiere were a s])ecial agreement to the contrary, and its dominion over it u'as, in lair, exclusive d' In Edwards v. Schlimd, 21 Ohio C. 0. 193, in determining what lands were and were not actually taken by the State for the con-^ struction of a state canal, eitlier by condemnation or i)urchase, at the time of its construction, of wliich no record was preserved, the court holds : “That, in completing tlie canal, the canal commissioners might easily have entered upon adjoining land of the owner and have driven piles, etc., along the edge of the river to protect the canal from being washed away by the river, and that the mere taking possession of such lands for that purpose is not to be construed as having given the State the right to that land; but land between tlie canal and the river, over which, by the evidence, it appears that a slope from the canal hanks ex- tends substantially , if not entirely, to the river and ivas made for the purpose of sustaining the tow-path, is hekl to he State land, on the theory that the State took actual possession of so much of the land as was necessary to form the bed and hanks of the caned, and the tow-path, and the hank necessary to hold the tow-path and keep it in position.’^ In Pennsylvania Coal Co. v. Harris, 101 Pa. St. 80, it was held, the land which a state took for a canal will be presumed to have been of the width necessary for the reasonable enjoyment of all rights appertaining to a canal. In 11 Pa. (1 Jones) Schuylkill Nav. Co. v. Berks County Com’rs, it was held, that an incorporated caned inclueles as con- stituent parts, the bed, herme hank, tow-paths, and toll houses, and collectors’ offices, and if the canal is not subject to taxation, the property forming such constituent parts are not taxable. In Western Pa. R. Co. v. Childs, 3 Pittsb. K. 168 it was held. The vendees of public works of Pennsylvania, and those claiming under them, have a title in fee simple to edl the land occupied by the canal, :i7 including that covered by the slopes and emhanhments originally constructed j and the natural accretions of the same from time to time. We respectfully sutunit that the above and foregoing decisions sustain our contention that the ninety foot strip on each side of the Illinois and Michigan Canal constitutes and is an integral part of the canal itself, and as such, cannot be alienated or put to any use other than that which pertains to the canal. In the laws of 1871-2, page 788 (Canal Compilation, p. 150) is a Resolution passed by the Legislature pertaining to the ‘‘Illinois and Michigan Canal-Lease.” By the preamble of said Resolution it is recited that on December 2, 1870, the Board of Trustees of the Illinois and Michigan Canal executed a lease to one Adam Smith a portion of this ninety-foot strip, thirty thousand feet in length, and that Resolution, speaking of that lease, recites, “and it being the property of the Illinois and Michigan Canal” and further re- cites that in the judgment of the General Assembly said paper or lease is not binding on that State of Illinois and that it is contrary to the interests of the people thereof that said Smith or any other person should, upon any pretense whatever, be permitted to have or acquire any interest in said strip, or any right to use or occupy the same in any manner or to any extent whatever. Therefore, “Resolved by the House of Representatives, the Senate con- curring herein, That said paper so executed and chdming, be and the same is hereby declared not valid, and not binding upon the State, and tliat the Governor l)e requested to instruct the Attorney General of this State to give notice thereof to said Adam Smith and to the Board of Trustees of said Illinois and Michigan Canal and to institute and prosecute such legal and ])roper proceedings as may be necessary in the case to disaffirm the same and to protect the rights of the State.” The policy of the State with reference to this ninety foot strip is certainly most clearly set forth in the above preamble and reso- lution, and expresses the determination on the part of the state not to permit the ninety foot strip to be interfered with, and ex- pressly characterizes the ninety foot strip as being a part of the Illinois and Michigan Canal. Again in the Act of March 7, 1872, Laws of 1871-2, page 213 un- der Section 5 entitled “Power to lease lands” in providing for the 38 leasing of lands, (contains tlie following proviso. ‘‘Provided, how- ever, that no part of the ninety foot strip along the canal, or any of the real estate in the city of Chicago, shall he sold.’’ The last expression of the Legislature prior to the making of the lease in controversy in this suit was the Act of April 21, 1899, Laws of 1899, page 82, entitled, “An Act to amend Section 8 of an Act to lievise the law in relation to the Illinois and Michigan Canal for the improvement of the Illinois and Little Wabash Livers, approved March 27, 1874, in force July 1, 1874, as amended by the Act of June 19, 1891, in force July 1, 1891” (Canal Com- pilation, p. 173). Both the Act of 1891 and of 1899, deal exclu- sively with Section 8 of the Act of 1874. Subsection 8 of Section 8 of this Act appears to be relied upon by defendant as shown by the answer to this bill, which enumerates the powers of the com- missioners, and said Subsection 8 is in the following language: “To sell and convey whenever in their judgment the inter- ests of the State will be promoted thereby, any canal lands or lots now owned by the State, other than those connected ivith water-power, upon the said canal, and the ninety-foot strip along the canal, etcd’ Here again this ninety foot strip is protected. In fact, there was no authority existing in the commissioners to sell said ninety foot strip at the time of the making of this lease. If any authority can be found for its leasing it must be found in the Act of April 21, 1899, Laws of 1899, page 82, which Act amends Section 8 of the Act of 1874 above referred to, as previously amended. Subsection 5 is as follows : “Fifth — To lease from time to time any of the canal lands or lots owned by the state; Provided, no lease shall be for a period exceeding twenty years.” The ninety foot strip was neither lands nor lots. It was canal. Then Subsection 6 of the Act of 1899 provides for the leasing of water-power and lands and lots connected therewith, and provides that said lands may be leased for a period of twenty years, and also provides for an extension of twenty years. The so called flowage lease or contract seems to have been attempted to be made under the provisions of that subsection, hut none of the conditions con- tained in that subsection were observed in the mahing of the lease. 39 that is, in the thirty days notirc i’(‘(juir(Ml hy that s(‘cti()n for tho leasing’ of any water-})()vver and lands and lots ('onn(;et(*d therewith, hi other words, it seems that in the drafting of tln^ so cal hid flow- age contract under consideration, the attempt was made to make a lease under the provisions of this Subsection fi of the Act of April 2, 1899, and at the same time they did not regard the lands thus leased as tvater-poiver and lands and lots connected therewith, and did not comply with the conditions of notice provided in that sec- tion. Said Subsection 8 of said last amended Act expressly re- serves the ninety foot strip from sale by the Canal Commissioners. We respectfully submit that the above and foregoing shows con- clusively that the policy of the State, up to the time of the making of the flowage contract by the Canal Commissioners to Griswold and by him assigned to the defendant, was that this ninety foot strip of land shoidd not he alienated hy lease or otherwise; i\\ni no express authority had been given to the Canal Commissioners to alienate this ninety foot strip, and without special authority given to them, it being a part and parcel of the canal, it could not be leased or sold. The reasons for this, we submit, are clear. This ninety-foot stri]) was needed for the sipiport of the tow-path and berme banks of the canal and was so regarded by the State, and accordingly, its alienation was prohilhted or not authorized. People using this canal for the transportation of grain, lumber and other commodities needed a place to load and unload the boats and this ninety foot strip was necessary for the reasonable accommodation of the people who patronized or used the canal, as well as for the support of the canal itself and the other reasons heretofore ex- pressed. The Act of the Legislature of Illinois of May lb, 1905 (Laws 1905, page 81) is an Act to amend Section 8 of the Act of 1874 as it was amended by the Act of June 19, 1891, and by the Act of April 21, 1899. This Act went into effect July 1, 1905. This Act enlarges the right of sale, l)ut in so doing, contains the following: ‘‘Provided they shall not sell any lands or any ]:)ortion of the ninety-foot stri]) along the canal which are now utilized in con- nection with the use of the water-] )ower u])on the said canal, or which will ])revent or interfei*e with the |)ro})er use and op- eration of said canal as a water way, et(r,” and then recpdres the consent of the Governor and j)ublic sale, etc., as theretofore existing. 40 ! r this stalute (‘an he lield to authorize the sale of any part of the nimhy foot sti*ip, it is the fii*st statute passed l)y the Legislature of LUinois authorizing the sale of any part of said ninety foot strip, and it will he reineinhered tliat this Ac^t was passed and went into Forc'e more than a year after the making of the eontrac'ts between the (kuial Commissioners and Griswold and by him assigned to the defendant, and whichi are now in controversy in this suit. Again as indicating that the ninety foot strip of land has been regarded by the 'State as a part and parcel of the canal, the Legis- lature by its Resolulion of May (i, 1905 (Lows of 1905, page 401) submitted to the electors of the State at the next general election held after the adjournment of the General Assembly, the propo- sition as to whether or not that portion of the Illinois and Michigan Canal and the ninetij foot strip on each side thereof lying along the line of the new channel of the Sanitary District of Chicago, should be sold or not. In this they again recognize the ninety foot strip as a part of the canal itself, but looking to the use of the Drainage District channel for future commerce, submitted the question to the people as to whether or not that portion of the Illinois and Michigan Canal should be sold. AVe submit that under this showing, and the policy of the state as manifested thereby, that Item Fifth of Section 8 of the Act of April 21, 1899, that being exactly the same as it was in the Act of 1874 and in the amendment of 1891 except as to the length of time a lease could be made, should not be construed as giving power to the canal commissioners to lease a ten-mile ])ortion of this ninety- foot strip to anybody, for any purpose, and certainly not for the purpose of ftoodhig the ninety foot strip and the herme hank and the slopes of the toic-path to the top thereof, and authority to raise the tow-path to a liigher grade as is provided in the contracts or pretended leases in controversy in this suit, regardless of ndiether or not it will injure the toir-path and other parts of the canal or not. If any purpose can be determined from this statute to authorize a leasing of any portion of the ninety foot strip, a fair construction of it would limit such leasing to small portions of the ninety foot strip for the accommodation of the patrons of the canal, and as in- cidental to the business of the canal. To illustrate, a grain dealer 41 located along the line of this (*anal, and desirirjg to transjjort grain tlironglit the ejmal to (diieago, nnght want a strij) a hundred or two liundred feet in length for the erection of an elevator, to tlie end that grain can be loaded direct from the elevator into a boat on the canal ; or a Inmber merchant located along the line of the canal, using the canal to transport his lumber from Chicago to his place of business, needed access to the basin of the canal for the purpose of unloading his lumber and possibly piling the same on the outer part of the ninety foot strip. Permission thus to use the ninety foot strip, or, if you please, leasing that much of the strip, might possibly come under the head of the provision of leasing the lands as provided in said Subsection 5 above ; but again we say that the lease for a purpose entirely foreign to anything connected with the uses of the canal for large area of this ninety foot strip was never contemplated by the Legislature, and such a leasing is ivithout ivar- rant or authority. In making this statement we do not concede that the authority existed in the Canal Commissioners to lease any portion of the ninety foot strip; that said Subsection 5 above does not embrace or include the ninety foot strip; that the express action’ of the Legislature pertaining to the ninety foot strip, when taken in connection with this Subsection 5 and construed with it, forbids the thought that it was the purpose of the Legislature to authorize the leasing or sale of any part or portion of said ninety foot strip. Finally the Legislature on the 27th day of November, 1907, passed the joint resolution (Laws of 1907-8, p. 101) hereinbefore set forth. IVe therefore respectfully submit that Fxhibit A (Abst., p. 28) and B (Abst., p. 14), the first being the so-called ‘^flowage (*on- tract” and the second the lease made subject to the said tiowage contract, are each and both outside of the power of the (linal Commissioners to make, and are absolutely void. THE FLOWAGE CONTRACT (CLAUSE 9) IN EXPRESS TERMS AUTllORTZED THE INVASION OF THE CAN AH. THIS IS ILLEGAL AND VOID. The provisions of the howage contract includes among other things, the following: ^‘9th. Said party of the second part is hereby authorized 42 to enter upon the lands and premises of tlie State of Illinois, l)art and pareel of flie Illinois and Michigan Canal, and to enter upon said eanal itself in the manner and to the extent it shall he necessary, (1) to raise and maintain the towpath as above ]>rovided; and (2) to attach and build said dam or other works on said towpath bank as lierein y)rovided; and (8) to repair, maintain or renew the same as shall become necessary to the preservation thereof. ’ ’ This is a sjDecitic authority to enter upon the canal itself to the extent needful to attach and build the dam and repair, maintain and renew it. This subordinates the canal to the flowage contract, and it will be needful to enter upon the canal and stay in the canal with some portion. of these works from fbe beginning to the end of their ex- istence. It has already proved necessary and the defendant has already entered upon the canal as the proof shows. It has filled into the canal with filling for the purpose of broadening the tow-path to the extent of about 5 feet. Defendant’s witnesses say this five feet of broadening material lias been placed upon the berm of the canal so as to deprive the bank of its berm. In course of time it will form a new berm by washing down the new material into the bottom of the canal. (See Ev. of Kramer, Abst.. 359: B. Williams, Abst., p]). 338-339.) Every such invasion of the canal is a diminution of its capacity and its efficiency. The right to give away a foot of the canal implies the right to give it all away. . There is no such right. ‘‘2nd. Said party shall have the right and authority to flow the ninety-foot reserve strip of the Canal in Sections 25 and 36, T. 34, E. 8, and in Sections 31, 30, 29 and 20, T. 34, R. 9, up to the canal bank ; also so much of the north fraction of Section 31, T. 34, R. 9, as lies south of the ninety-foot reserve strip along the towpath side of the Canal, where the same may be overflowed by reason of the construction of said dam and other works witli the crest hereinbefore specified, together w'ith the right to flow the water up against the towpath bank of the Canal.’’ The other provisions of the contract authorize invasions of the canal in other ways. Clause 3 authorizes the defendant to excavate 43 ill and remove tlio fcuMior and alter it so as to make it teiMl the water-power pool instead of reedini»- the (‘anal. Th(‘ feedcn* its(*lf is a part of the eanal and tlie rcanoval and alteration of it is a re- moval and alteration of the canal, (danse 8 authorizes the defend- ant to nse the gravel and other material lying along tlie canal. The defendant proposes to occupy all of the ninety foot strip except the 16 feet occupied by the tow-path. This strip received and sustains by lateral support, the pressure of the canal. The occupa- tion of it by a water-power pool is an invasion of the canal itself. It deprives the canal of lateral support. And on the other hand, the strip and the pool upon it will use the tow-path and canal as lateral support for the pool. This is an appropriation of the tow- path and canal inconsistent with the safety of the canal. The grant to Griswold of the right to such lateral support from the tow-path and canal is beyond the power of the Commissioners. It is too clear for argument that these invasions of the canal are acts which the Commissioners cannot authorize. They are foreign to the purpose of the canal. These are of the class of acts to which Lord CoTTENHAM referred in Attorney (General v. Forbes, 2 Mylne & Craig, 123. Lord Cottenham said : ^‘In Attorney General v. Johnson, 2 Wils Ch. 87, 18 Revised Rep. 156, the objection to the jurisdi(5tion was attempted to be raised. The defendants in that case, the corporation of the City of London, were authorized by act of parliament to do what was necessary to be done in the exercise of their duty as conservators of the river Thames; but, in that particular instance, they had assumed to themselves a right to carry on or sanction o])erations, which created a nuisance to the king’s subjects; and the court accordingly interfered to prevent them from so exercising their undoubted legal ])owers. To say that this court, when it interferes in such a case, is acting as a court of appeal from the court of quarter sessions is anything but a correct representation of the fact. The jurisdiction is exer- cised, not for the jmrpose of overruling the ])ower of others, by way of appeal from their authority, but for the purpose of exercising a salutary control over all for the protection of the public.” ‘‘The allegations of fact appearing on the face of this infor- mation and bill may be pure fiction ; but I am to take the record as it stands, and finding that h represents a case where, if the act proposed to be done be carried into effect, a great public 44- misc'liief will he o(*easione(l ; I tliink tlie obvious result of all the authorities is, that \ am ])oun(l to interfere.” Again \jord CoTTENirAM said in Frewen v. Lewis, 4 Mylne & Craig, 249: ‘‘ (1 ) I api)rehend that the limits within which this court in- terfei-es with the acts of a body of public functionaries, con- stituted like the poor law commissioners, are perfectly clear and unambiguous. So long as these functionaries strictly con- fine themselves within the exercise of those duties which are confined to them by the law, this court will not interfere. The court will not interfere to see whether any alteration or regu- lation which they may direct is good or bad; but if they are departing from that power which the law has vested in them; if they are assuming a power over property which the law does not give them, this court no longer considers them as acting under the authority of that commission, but treats them, whether they be a corporation or individuals, merely as per- sons dealing with property without legal authority.” THE RELATION OF THE NINETY-FOOT STRIP, BERM BANK AND TOW-PATH TO THE CANAL AND THE EFFECT OF THE PROPOSED FLOWAGE THEREON. Summary of Testimony of Kramer. P. OF TRANS. 689 The banks of the canal are necessarily parts of the canal to hold the water in the canal. There is now a difference of 23 690 feet in height between the top of the tow-path and the water in the river. At the point where the dam is being constructed 691 the to]) of the tow-path is from 12 to 16 feet wide. 692 At a slope of 2 to 1 on the river side, the bank should have 36 feet of width in addition, making 52 feet. On the canal side there should be a slope of 3 to 1 requiring 18 feet of width. On the tow-path side there should, in addition, be a berm 6 feet high with a slope of 3 to 1, adding 18 feet to the ^vidth. The total width of the hank at the point of the dam under the present height of the water should he 88 feet. If the top were raised 2 feet higher 16 feet of added width would be necessary. 693 105 feet would be the minimum width of bank for the proper maintenance of the canal if this tow-path is raised 2 feet 694 higher than it is now. If this dam is built as proposed and the water is flowed up against the tow-path bank, it will wash the bank and the action of the waves will cut a berm into the bank, and unless it is properly protected, will destroy the tow- 695 ])ath. If the hank is not paved with big stones, the water will 696 eat into the canal bank. The riprap there now extends about 45 luilf the way up. The efTeet oi‘ the flowagc* on tli(* hank wjll eevtaiiily he hurtful. ()99 The river iu liigli water would overflow tlie darn and woul(J overflow the tow-])ath and ruu into the eaual. Ili^h water of 1892 would come to the top of the tow-patli. A few years it 700 was higher by several hundred thousand eiihic feet per min- ute. If there are sufficient Taintor gates in the dam to take care, of this high water then there would be no height of fall, 701 and no power. They are now raising and enlarging the top of the tow-path bank, filling on botli sides, but they are filling up the Illinois and Michigan Canal up to the beginning of the 702 deep water in the canal. It is not a durable rock, it ought not to be called rock. It is wliat I should term a shale. It will disintegrate after a year or two of exposure. In the work they are doing tlie slope has been steepened on the river side. In most of the places they have thrown rocks on the river side so that the slope is 1 to 1 or less than 1 to 1. 703-4 The new^ tilling just about struck the toe of the canal bank. The slope will be much steeper than it used to be. I had charge of the construction of the canals at Marseilles. One was about a mile long and another half a mile long and an- 705 other a quarter. I worked on the Chicago Sanitary District for about 7 or 8 years. I built high banks 20 feet high on the Marseilles Canal 25 feet wide with slopes from one and a half to one to two to one on each side. 708 The plan of this work was familiar to me. I spent four days right there taking soundings over the place in 1900. .1 was in charge of the party making the soundings and to}) 0 - graphical survey under Mr. Munroe’s instruction with a view to the construction of the dam and ])ower-house at Dresden Heights. 709 I advised Mr. Alunroe then and since in regard to the feasi- bility and practicability of building that proposed dam and works. That was in the spring of 1904. The original bank 711 was a good bank. There have been breaks along the tow-iuitb on account of high water. The slope is not regular. The old riprap has a slope of about 24 to 1 and the other part 2 to 1. 712 The high water of 1902 came up just about to the top of that dam. The Des Plaines carried more water in 1904 than in 1902. 714 The pool above the dam would never be a benefit to the old 715 canal bank. Disturbing a bank which has been in position for 50 years would never make it any better. There is a theo- retical strain on the bank from the water in the canal, but it is so slight that you could not speak of it as a strain. It would wash out the bank. 716 In properly constructing you should }>ave the bank from 4G lli(‘ pros(‘Tit rij)i-a|) io the tof) and ])ave tlio tow-patli and pave the canal side of the bank. The wash and debris and action of the current would cer- taiidy do more damage tlian the pressure would exert to help carry the water in the canal. 720 1 don’t think the raising of the tow-path 2 feet would be enough. To properly riprap the bank and pave it from top to bottom and on both slopes would add about $500,000 to your expenditure. I would not disturb the canal bank on the river side at all, I would dredge the old canal and continue the riprap from the present point G feet below the bank up to the top and reduce the slope, carrying it out into the canal, dredging the canal and building up the bank on that side. It would practically mean the construction of a new canal. 721 I don’t think any company organized for gain would spend a half million dollars in improving the canal bank. It would simply mean the impossibility of the scheme. I recommended 722 dredging the canal to Mr. Munroe. (By counsel for the defendant.) Did you give Mr. Munroe the figures that it would cost, a detailed estimate of such work I Ans. I would not like to go into the transactions I had at that time because they were confidential and they are still confidential so far as I am concerned.” * * * 741 When I advised Mr. Munroe in 1904 on the feasibility of the dam near this site, there were no plans or specifications except a report made on the proposition which is still in existence. I had in mind the practicability in expense as well as the pos- sibility, and also the protection of the canal bank. I would rather not go into that because it is confidential. 742 (Counsel for State) C‘We ask counsel for the defendant if they will relieve witness from the confidential fea- ture and let the witness answer.” (Counsel for Defendant) : cannot relieve him because the statements were made before the defendant had anything to do with it and Mr. Munroe has left the room.” 723 The Witness : The proper way would have been to take out the riprap first and put them in new. I don’t think you could ever make another bank like that by altering it and make it as good as it has been. If you don’t build a dam it would be better to leave it just as it was. If you build a dam, you have to change the entire condition of the bank. The width of the 727 present bank is about 70 feet. In making an earth bank you would leave a berm so that the action of the wind would not 47 nlT(H*i it, that is tlie borni. 44 ig water will make its own f)(}rm oil tlie bank. 728-9 I think it necessary to pave the si(l(‘ of the liank ami tow- path beeaiise the Des Plaines river is very nru'ertain. We cannot tell liow nmcli water will go down there. Tlie Drain- age Canal figures on 850,000 cubic feet per minute and the high water of 1904 was 800,000 to a million, that will give you 1,850,000 cubic feet per minute to provide for. You will have to ])ave the tow-path if you only Iniild it to the height you want to build it. With enough gates you could prevent the water from over- flowing the tow-path. 730 You should pave it up to the point the water is expected to rise on the slope. You can’t foretell the water that will come down from the river. If you build a dam there you would always have to figure on the water running over the tow-path. 732 I would pave right to the top even if I could maintain the ele- vation of the water at 80. I would pave the canal side because overflow water would wash that part and wash it worse than the river side and wash it' down into the canal. 733 If the river in high water overflows the bank at this point without any dam, then it would still more overflow the bank with a dam there no matter how many gates were put in. 738 Sometimes the water is let out of the canal entirely so that you have no water in the canal. Then there would be pressure on the bank with no pressure inside to sustain it. 739 The lateral pressure of the canal water 5 feet deep doesn’t amount to much. Tliat saturating the bank with water would diminish its strength especially when there is no water in the canal. The water in the Illinois and Michigan canal is let out each winter. It is drawn out from November up to April. I have seen it so at Marseilles below this point and at the sum- mit level above this point, and at the canal level above this point. It is let out all along the canal as a protection to it against frost and freezing. It would not be a commercial proposition to build a wall along this bank that would protect it from being saturated and weakened by the water to be placed up alongside of it. 740 If they continue the work tlie way they have been doing it at the site of the dam, it would not do any good at all in the way of protecting and saving the bank. 743 To ])ave the tow-path and the slope over into the canal would have to add 5 feet to the bank on the canal side. 744 It would fill up 5 feet of the canal. (Abst., pp. 354, 371.) 48 THE EEEA'I'ION OK THE NINE'I'Y-FOOT SThIK BEKM BANK AND TOW-PATH TO THE ('ANAL AND THE EKEECT OF THE PROPOSED FLO WAGE THEREON. SiimnKni/ of Testimonij of Benezette Williams. V. OF TRANS. ()o4 1 mil ()o years old. I am an engineer. Have i)ursned that calling 35 years and railroad work. Am employed by the City of (Chicago as Assistant Sanitary Engineer, Superintendent of Streets and City Engineer. Have done a great deal of hy- draulic work all through the country. Was on the Chicago ()35 Water Supply and Drainage Commission from 1886 previous to the drafting of the Sanitary District Law. From 1892 to 1895 1 was Chief Engineer of the Sanitary District. Prev- iously 1 was identified with the Commisison on water supply and main drainage. The greater portion of my work has been hydraulic engineering. I have recently inspected the work 636 at the mouth of the Des Plaines River. A canal for commer- cial p'ur])oses consists of the channel, the embankment and the water contained. The proper embankment for such a work as that ought to 637 be 12 to 15 feet wide at the top. It depends on the way it is built and the material of wdiich it is built. On the outside of the canal it ought to have a slope that will stand against the ordinary wear of the weather, washing of rains and floods. In a railroad embankment of good material II to 1, and in a canal it would stand at the same slope if there was no leakage to wet or cause it to slough. If it were of masonry you can built it nearly vertical. This 638 bank was probably built at IJ to 1 and has flattened out some by wearing down and depositing near the foot. It appears now to be about Df to 1. The tow-path is about 18 feet above the ground level on the outside of the c^nal. 639 They have changed the conditions there somewhat by exca- vation. There was a great opening or coffer-dam and they have dumped material all around there which changes the original condition. It might be about 20 feet below the dam. There they have widened out and dumped a great deal of ma- terial. 641 A bank 18 feet high and 12 feet wide at the top would need to be 65 feet wide at the base. If it were made 5 feet higher then it would have to be 83 feet wide. 642 If the outside bank were open and exposed to the air and then flooded with water, it would not maintain its present slope. It would wear away at the top and work down to the bottom and flatten out. It v/ould be injurious. AVliether it would cause a sliding of the bank more than what comes by 4 !) wave aetioii, would (leiveiul on the inat(‘i-ial. ''the eurrent of the river and the wind would wear away at the wat(‘r lev(‘l and below the water level and undermine' the material and eanse it to slougli down on the side of tlie bank. It would need a wave berm. Material enough must be |)nt in so that it forms its own berm. It would do that. Such wash will take y)lace if it is material that will wash at all. 644 It would wash the material and break in on the bank until it did' form a berm there. The process going along, as I could make out from the indications tiiere, which seem' pretty clear, is that they take the material as it comes from their pit, in- cluded in their coffer-dam, 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 three or four or five feet, varying somewhat according to whether the bank is true or not ; giving it a steep slope untibit 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 one to one. Then that forms a widened bank, perhaps 20 feet wide. On that they build up, a]>parently intending to make the finished bank near the width of the pres- ent canal bank on top. Now the steeper slope being made of this to]) material, re- sults in a failure for any matei'ial to reach the toe of the original slope. It is building a baidv on top, a bank with a less slope on top of an old l)ank with a gi’eater slo})e, making a su])erincumbent mass thei'o. 645 I don’t think it can endure or be ])ermanent. It is a soft rock. It is dumped in promiscuously just as it comes from the excavation. I think it will disintegrate by the weather. The disintegration will be rapid for rock. They are throwing the earth into the Illinois and Michigan Canal, widening on the inside from the edge of the tow-path into the canal ])rism. They are giving a greater slope to it than the original slo})e at the present time. 646 The direct effect of what they are doing is to narrow the prism of the canal and in order to make the tow-path stand on the canal side it is necessary to widen it there and to fill lip the canal in ])art, if they follow their present method. * * * 670 The plans of the company’s work, Mr. Cooley had in his possession when we inspected the Avork. They did not show anything as to wliat the company ])ropose to do with the bank or how it ])r()])osed to widen the tow-path. Part of the work seemed to be about completed; other parts not. It was evi- dent they were raising the tow-jiath. They were raising it about 5 or 6 feet above the water in the canal 50 ()71 1 judged that I'roiii the top of tlie hard< where some raising had been don(‘ and by the height of the top of tlie grade stakes where tlie raising had not })een done. The original haidv in j)la('es was ri})rapped })art of tlie wiiy Vvith small stone oiitsiile the eanal, hut it lias been obliter- ated and ('overed with earth. Jt has an earth slope now. (572 ddiere were places where the stone was visible, but for the most ])art not. There were jihu'es that it was covered with stone where the current sets in against it, to prevent wash. They were not dimension stones. I examined the bank for a mile. There was about one-quarter of a mile that was cov- ered up by the material that had lieen deposited there. The original construction showed in 'that (piarter of a mile for the lower half of the slope. I saw the original material above (u])-streani) where the new material was deposited. The new material bad been deposited upon the side and top of the bank for a quarter of a mile. Then another stretch for a number of hundred feet it had been deposited upon the side of the slope and the top had been, evened out to about the original tow-path level. There w^ere trees growing up down the bank in various places. G74 There were more or less of that original paving in be- tween the points and ‘‘Y” on the Hillebrand exhibit. The upper part of the bank was covered with fresh material. (175 but at the bottom of the bank the old bank showed. There was a good deal of the bank that was not protected at all. C)77 You cannot lower flood waters by building a dam. Any- thing you do with a dam vriW raise them. The water in that pool would not be still water. The bank would be de- stroyed with the effect of wave action and winds and being- kept constantly saturated. The action of the wmter from this dam would be much more serious than the action of the (578 high wmter. If you get enough material there of the right kind and i)ut it on that slope, you could protect it. (185 Trees could not have grown on that bank as they did if it had been laid up of stone. The new stone laid in there was the spoil of the excavation, the outer line thrown with some regularity, Imt they are not hand-laid. ()8() In order to construct that bank so as to protect the canal and let the water in it would be necessary either to use a heavy riprap extending dowm to the toe of the bank and building up and ])aving like the pavement of a reservoir, G87 carefully hand-laid different from anything that was there. It would be picked rubble stone or dimension stone. The water held back by the dam wall reach and wash the new work that extends down the slo])e. (Al)st., ])p. 33(1-354.) 51 THE RELATION OE THE DO-FOOT BERM BANK AND TOVV-I’A'P 1 1 TO THE CAN AT., AND THE T^IEEECT OE THE 1 MU) POSED Fr.OWA(;E THEfiEON. SumDiarij of T estim any of Lyman E. Cooley. 2521 If the tow-])ntli hank is raised two feet or more above its lieiglit, and the dam placed across the Des Plaines river, in accordance with the plans that have been submitted, and at such a height as indicated upon the plans, and the dam is maintained at that height, the effect will be to depreciate the 2522 value of the bank, and in the course of time it will be de- 2523 stroyed. The maintenance of a level of water against an off side of the bank is a radical change in conditions so far as affects the stability of the bank and the effect will be to de- grade the bank eventually until it disappears or is greatly reduced : . That would be the inherent and necessary effect of 2524 a situation of that character. I do not undertake to say that it is humanly impossible 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 de- veloped, was in process of change for a couple of thousand feet or more, and it had been staked out, for nearly a mile upstream, and had the appearance of being a completed work for about 1,000 feet up-stream. The bank yms ])eing raised, I judge, about two feet. It was widened on the 2525 canal side about five feet. It extended into the ])rism of the canal about five feet by a riprap dump. That is an expres- sion used for loose rock dumped loosely in water construc- tion for shore ])i*otection. I{i])rap usually designates rocks that are loosely dumped or placed, and a similar riprap on the face of the slojie, on the outer slo])e of the canal, and between this was placed earth, that I judged to be in ])art taken from the excavation. That is the spoil bank of the ex- cavation. This ripra]) slope was as steep as the rock would * stand at the duni}), 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 ma- terial, and w^as not in accoielance with what T should call 2526 good practice. The area of the canal itself was narrowed by five feet. It is a saturated bank, or it would become a sat- urated bank, which requires — which greatly diminishes the stability of the earthen material, and which tends to degrade it to a flatter slope. A flatter slo|)e is recpiired for stal)ility, and at the wave line or the line of fluctuation between high and low water there are wave forces coming from a very ex- tended pond or lake, which are a constant source of degrada- 52 lion. There are i('e floes wliieli sometimes shove a bank of that kind very severely in tlie formation of ice in a pool, and there are de])redations committed by vermin, such as craw- fish and muskrats, which have caused the failure of more earthen dams in northern climates and more levees in south- eiTi climates than all other causes i)ut together. It is not ])racticable to maintain this dam and maintain the canal in its integrity at this point and keep the canal in place where it is without most extraordinary works. 2527 With this pool placed underneath the bottom of the canal, what wmuld be tlie effect on the canal ! A. Taking the view of it that we did when we ^banned tlie 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 of the valley.” 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. That was to avoid percolation and saturation of ground which would produce a slip towards the work, and to insure better security. We thought it wms the wisest precaution. 2528 It is not practicable to take the canal and shove it over at this place on the side hill. The Dresden Bluffs are 80 to 100 feet above the level. Q. How wide an earthen bank would reasonable precau- tion 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 possi- bly of the specification which the company has already made in regard to the short piece of dam between the power sta- tion and the tow-path bank with the top of it doubled or , tripled in width, provided that in place of fiat pavements as they have put in there, that they put in genuine pavement such as is used on the dikes of the Hudson river and 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 called for a front slope of two and a half feet to one and for a back slope of three and four to one, as the company have 2529 drawn it for their own embankment. I referred to a bank that is mentioned in the specification and plans of the com- pany connecting the site of the power station with the tow- path and 175 feet long, of which a specification is given as shown on the plan. That is down at the points of the junc- tioii of ilie (lam a('r()ss the strcwun with Uk^ l()w-[)alli where there is a peninsula of gTound some 400 feet wide between the tow-path and the river. In looking ov(n' the plans it o(‘- enrred to me that that was the judgment of the engineer who made those plans, as to what kind of a hank should he 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 that bank could be completed on the present right of way of the canal without shifting the canal over onto the bluffs. 2530 That is practicable to a limited extent only, on account of the height of the bluff. You may shift it for perhaps 10 or 15 feet without encountering great difficulty. * * * 2648 (After examining the contract). Exhibit A, it is not prac- ticable to do the things required to be done by the party of the second part under that contract for less than $100,000. 2650 It is not practicable to do the things required by clauses 6 and 9 in such a manner as will not interfere with navigation on the Illinois and Michigan Canal nor in such manner as not to interfere with the use of the tow-path in connection with the canal (iVhst., pp. 846-878.) Mr. Cooley testified (Al)st., pp. 841, 846-848) that the defend- ant’s plans and specifications contained no provision for any em- bankment or work on the embankment between the tow-path and the river. Defendant’s engineer. Mead, identifies his plans. Exhibit F, as the plans of the embankment that he made, and states that he made no plans for riprapping the bank of the tow-path of the canal. (Trans., p. 3889; Abst., p. 1150.) The specification for an embankment to which Mr. Cooley so re- ferred is Specification E (Abst., p. 1204) of defendant’s dam, and the detail i)lan G1556, which it makes a part thereof. G1556 shows as [)art of the dam, an earthen embankment, 175 feet long, extending crosswise of the river, from the right-hand end of the power-house to the tow-path of the canal. It is shown to l)e 113 feet wide at the base, 16 feet high from the natural surface of the ground, to the road- way at the surface; on the up-stream side of the pool in the river it has a slo])e of two and one-half to one inch, ‘‘])aved with lime- stone 4 inches thick and of such surface dimensions as will admit of laying securely and evenly in the work, and after ])eing laid tamped with a wooden tamper until brought to a solid bearing in 54 ilie oiiihankiiUMil.” SpCM'ific'atioii K. Sec. (>, Clause (1)). On the (lowii-streani side, away from the ])()()1, it has a slope of four to one siniilai'ly paved the rest of the way down. Asked how wide an earthen einl)ankinent would reasonahle pre- (‘aiition call for i)etween two such bodies of water at these two levels, he said: “ 1 think I would ai)prove possible of the specification which the conii)any has already made in regard to the short piece of dam between the power station and the tow-j)ath ])ank, with the toj) of it doubled or tripled in width, provided that in . place of flat pavements, as they have put in there, that they l)ut in genuine pavement such as is used on the dikes of the Hudson Kiver and on the Erie Canal, 15 to 20 inches in depth, stood on edge at the chafing line of the waves and the ice. “That the specification calls for a front slope of two and a half feet to one and for a back slope of three and four to one, as the company have drawn it for their own embankment.” The plan as drawn (G1556 in the section marked BB) shows this embankment with its slopes and its paving laid flat (appar- ently about 6 inches thick), just as described by Mr. Cooley. It shows the embankment’s top 16 feet wide; while Mr. Cooley de- sired an embankment just double this width at the top, and with the same slope, which would give a corresponding increase of width below. (Abst., p. 848.) This work, he said, wmuld cost over $100,000.00. It will be re- membered that Griswold testified (Abst., p. 852) that when he took the contracts he would hardly be good for a $75,000 contract — cer- tainly not for a $100,000 contract ; and that he never saw the place or property or any of the Canal Commissioners, and never had any intention of building any dam or carrying out the require- ments of the contract. The defendant attempted to meet this by the evidence of va- rious engineers, who testified that in their opinion the 2 :)resent bank would be strong enough if riprai>ped and that it could be ri23- rap])ed for $50,000 or thereabouts. (See Mheeler, Abst., p. 1249.) (See Mead, Abst., }). 1140.) (See Moore, Abst., ^3. 1008.) This allowed nothing for thickening the bank. Some of the (leroiulaiii’s witnesses said lli(*y had ^atcis (moii^li in the dams so they (*onld let all the Hood watcn- run away. This is over(‘ome by the testiniony that o('easional ly th(‘ i-iv(n* in high water overHows this bank into the canal, though tlnna* is no dam there at all. Test, of Sackett (Abst., ]). 225). Test, of McDonald (Abst., ]). 291). Again, some of the witnesses advanced the ridiculous sugges- tion that the water-power pool on the side of the l)ank would sup- port it — would relieve it of the strain caused by the canal water, would protect it against vermin^ such as muskrats and crawfish. (Sackett, Abst., ]). 249.) (Mead, Abst., p. 1141.) (McDonald, Abst., p. 291.) (Wheeler, Abst., pp. 1245-1246.) This bit of disingenuous theorizing condemns their testimony on the whole subject of the strength of the bank. The canal, forty feet wide at the base and four and one-half feet deep, does, of course, have the lateral pressure on the bank, which such a body of water will make. But it is in no need of such ^‘su]> ])ort” or ‘‘relief.” Per contra, the water-]mwer ])ool, over 1,000 feet wide and twenty feet deej), will put a counter })ressure on the other side that will not merely “relieve” and “support” the bank, but press it to the bursting ])oint in high water. And the vermin, muskrats and crawfish, live under and substan- tially at the edge of the water and would never touch the bank on the river side at a point 16 feet above the water; but when the water-power i)ool is put in and the water raised on the river side to the canal level, the line of the top of the water on the river side (being that of the bottom of the canal on the other) will make the 32 feet of earthen bank between them a muskrat, wai'reu and craw- fish bed. The saturation, slipping and breaking of the bank and undermining of the canal will soon be complete. The defendant replies: The work must be done “to the satis- faction of the (kinal Commissioners;” and they had Kehoe look- 5(1 iiig- on and inspoeling' until lie died. Ergo, the State has no reni- edy. And the trial, court held that the Canal (.'oinniissioners iniglit compel the defendant “to take down its works if necessar 3 \ J)Ut such a (‘ontract l)y the Canal Coinmisisoners is inherently dangerous, is for use of canal property antagonistic to the uses of tlie canal, and is he^mnd tlie power of the Canal Commissioners, and void. And especially this is so when the contract is in the teeth of the statute in other particulars. The fact that this is an artificial bank and an exposed portion of the Canal is sliowm by the following: “From the Du Page to Dresden the line has been but slightly changed since the first survey, but the quantity of slope wall to protect the Canal at the Kankakee bluffs has been considerably increased to render the Canal doubly se- cure at the exposed point. (Engineer Gooding, December 10, 1888 — Canal Report, 1900, p. 156.) Again, in his report for 1836 Mr. Gooding said: (Canal Report, 1900, p. 124.) “About two miles below the crossing of the Du Page a very difficult and expensive portion of the line commences and ex- tends nearly to Dresden, below the mouth of the Kankakee River. The bluffs^ which are from 100 to 150 feet in' height, approach the river so as to be washed by it at their base, and the toiving path hank which ivill he partly or wholly huilt in the river at the base of the bluffs will require slope wall to protect it against ahraslon from the flood waters of the river, for an aggregate distance of 2 miles and 50 chains. ^‘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 he wholly in the river, and the embankment must he formed by 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 prism of canal in the bluff u'oidd increase its tendency to slip and consequently en- danger the canal. Heavy protection tv all will be here 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 ex 57 amiiicition bofore a final loc'ation is made of* ibis [)aa*i of* llio, lines between Drescien and Mar\seilles. “A dam may be built at the foot of the bluffs and a towirif^ path eonstrueted along their base so as to pass this difficull })ortion of the line by slack water at much less ex|)ense than the })resent estimate of an indei)endent canal, and would un- doubtedly be quite as secure an improvement. By raising the water 15 feet (and a dam of this height can be rendered per- fectly secure, for there is a good rock foundation), the line would be thrown ten and one-half feet lower than the survey made to Lock No. 8, of eight feet lift, between the Aux Sable River and Nettle Creek, and two and one-half feet lower than the line surveyed from this lock to Locks Nos. 9 and 10, a short distance above Marseilles. This would involve the necessity of a change in the plan of crossing the Aux Sable, an aque- duct having been estimated and a dam being required, if the plan suggested hereafter be adopted, and the river would be crossed considerably further down.” STATUTES ON 90-FOOT STRIP. As already shown in the statement of facts under the heading ‘‘The Ninety-Foot Strip” (supra) , the Act of January 9, 1836, by Section 16, reserved a strip of land ninety feet wide on each side of the canal to enlarge its capacity. (Compln. of Canal Laws, pp. 30-32.) In 1846-7 when the canal was being laid out and constructed, the Canal Trustees caused a strip ninety feet wide on each side of the canal to be laid out, surveyed and marked otf as a reserve strip from one end of the canal to the other. (Report of Canal Commis- sioners for 1900, Abst., p. 1855; Fv. of Orr, Abst., p. 386.) The Act of March 7, 1872, in Sec. 5, expressly provided as fol- lows : “Provided, however, that uo part of the ninety-foot strip along the canal or any part of the real estate in the City of Chicago shall be sold.” (Canal Compln., pp. 152-3.) The Act of March 27, 1874 (R. S., Chap. 19, Sec. 8, Clause 8) authorized the sale of canal lands “other than those connected with tlie water-})ower upon the said canal and the ninety-foot strip along the canal. * * (Canal Compln., p. 159.) The amendatory Act of June 19, 1891, took away the i)ower of »ale of lands altogether. (Canal Laws, pp. 171-2.) 58 The aiiieiKhitoi y Act of April 21, 181)!), restored the provisions ol tlie a(*t ot 1874, authorizing sale but ex(*luding tlie ninety-foot strip therefi-oui ((4inal Laws, pp. 173-5), and this was the act in foix'e at the time of the transaction in (juestion. In 1872 the legislature, by joint resolution, declared the lease of 30,000 feet of the 90-foot stri]) to Adam Smith, not valid, and 01 ‘dered the Attorney General and Canal Trustees to take the nec- essary ])roceedings to disaffirm the lease and protect the rights of the State (Canal Complm, p]). 150-151.) THE 90-foot strip IS AN INTEGRAL PART OF THE CANAL. ‘‘The Board of Pulilic Works ])ossess no y)ower to grant rights, easements or privileges for private advantages unless expressly authorized by law.” Ghio ex rel. Aitoiiiey General v. Chi. Cent. B. Co., 37 Ohio St., 157. “The berm bank of the canal is part thereof, and equally l)rotected by law from all occupancy or intrusion as any othei* l)art.” Ihid. The foot path or tow-path and strip of land occupied by it along a canal is part of the canal. Alexander v. Tolleston Club, 110 111., 65. Moran v. Bass, 14 Fed., 454. Hatch V. C. S 1. R. Co., 18 Ohio St., 92. Edwards v. Schlund, 21 Ohio St., 193. Schuylkill Navigation Co. v. Berks Co. Comrs., 11 Pa. (1 Jones), 202. Mtdlen v. Lake Drummond Canal & Water Co., 63 L. K. A., 883. In Alexander v. 'holiest on Club, 110 111., 65, the Court said (speaking of a lease of a canal to connect the club house with the lake) : “The canal and this foot path were the only practicable means of access from the river and marsh to the club house back of them. Wherever there is the right of navigation there is the incidental right to use the banks of the stream, to a greater or less extent, as tlie purposes of navigation may r(;- (piii-e. The lease is, in terms, ‘all ilie ground in Scudion 18 now used for said canal.’ We think this may not iini-(iasonahly lx; held as iiududing all the groimd then used, together with the canal, or in connection with the canal. This foot path, we may infer from the evidence, was as much used in connection with the use of tlie canal as the canal itself was used. It had ever been so used before, and was so used at the time of the making of the lease, and has been ever since, until in 188], with certainly the knowledge and consent, and without objec- tion, of the lessors. , “It is the rule that whenever a thing is granted, all and every easements necessary to its beneficial enjoyment will pass. “ (Angell on Watercourses, Secs. 158, 358.) Although this foot path was not absolutely necessary for the use of this canal, as is the tow-path in the case of an ordinary canal where the mode of propelling boats is by animal power, still its use was an actual, constant incident of the canal’s use — such a convenience therein, and accessory, and so far neces- sary, that its use may, not improperly, we think, be regarded as appurtenant to the canal, and passing by the lease thereof.” Morgan v. Bass, II F. K., I5I, was an action of ejectment brought for a strip of land about 17 feet wide, more or less, lying on the canal basis, and cliumed to be the northern part of Lots 5()2 and 503 of Hanna’s Addition to Fort Wayne.* * * On the ])lat which Hanna made, and which was recorded, the depth of these lots north and south was marked as 163 feet, but the lines of the lots extended to the canal basis, and as the Court thought, and so in- structed the jury, they were intended by Hanna to extend to the canal, and therefore the northern boundary of these lots was on the line of the canal, whether it was more or less than 163 feet north of Pearl street. The court did not instruct the jury that this north line was necessarily the water line of the l)asin, but laid down some rules to govern the jury as to the quantity of land that was covered by the canal, stating that it included the bottom, sides, and the tow-])ath, and any portion of the adjoining banks that were appropriated by the Canal Commisisoners and used for the purposes of the canal, stating at the same time that as the canal was intended as a means of communication by water, it must be assumed that certain portions of its banks were to be used foi* the purposes of commerce, and for receiving and delivering freight along- the line of tlie canal; and the court also stated that there was nothing in the evidence to indicate liow far from the water line on the banks of the canal the right of the Commissioners or ownei-s of the canal extended, and that in those cases where no f)ortion of the banks of the canal had been appropriated for the uses of the canal, it must be assumed that the owners of adjoining lots abutting on the canal would own their property to the canal, subject, of course, to the uses of the canal, as heretofore stated. In Hatch V. C. & 1. R. R. Co., IS Ohio St., 92, the question here waived was whether, under the twelfth section of the Act of May 1, 1852, of Ohio, to provide for the creation and regulation of in- corporated comjDanies, etc. (3 Curwen’s L., 1860) a railroad com- pany may, in the exercise of the delegated powers of eminent do- main, appropriate to its use, for the purposes of a railroad, the land constituting the body of a canal acquired by the exercise of like delegated power, by a canal company, for the purposes of such canal, against the consent of the latter. It was held, that an ap- propriation of land by a canal company for the purpose of a canal, in the absence of any contract or statute to the contrary, will be presumed to have included land for a berme-bank as well as for a tow-path; and the exclusive power of the company over the land necessary for such bank is the same, whether it consists of a nat- ural or artificial deposit of earth. The lower court, in instructing the jury on this point, used the following language : “Secondly, the plaintiff claims that the railroad company have taken and used not only the land which had been be- fore appropriated and used by the canal company, but also a strip of his other land adjacent thereto, which the defendant denies. In order to ascertain whether such additional strip of land has been taken or not, it will be necessary for you t6 ascertain from the evidence what were the dimensions of the canal. “The charter of the canal company authorizes them Ao lo- cate and construct, upon the general plan and dimensions of the Miami Canal, a navigable canal, with all the necessary locks, towing paths, basins, aqueducts, culverts, waterweirs, dams, wharves, embankments, toll houses, and all other neces- sary appendages.’ And the railroad company have offered evidence tending to prove what the dimensions of the Miami Canal were— that it included, among other things, a berm fil hank, having a slope IVoin the water’s (‘dge, the hoi-izontal width of whieli was three and a halt te(d,, and that troin the top of said slope the henn haidc extended an additional width of six feet ordinarily. The plaintiff, on the other hand, elainis lie has shown hy evidence that the canal at this [ilace was located along the base of a hill, with herm hank next to the* hill; that, in consequence thereof, no henn liank was needed, and that no land was in fact appropriated or used therefor; hut, on the contrary, that it was agreed between the plaintiff and the canal company that the land should only be ajipro- priated to the water’s edge on the side opposite the towing path. I charge you, however, that a berm bank wms needed for the uses of a canal, and the necessity for if was not dis- pensed with in consequence of the location of the canal at the base of a hill ; that it answered the same purpose there as else- where — namely, to support the water — and could also be em- ployed for other incidental purposes, as at other places. It was therefore the duty of the canal company to appropriate or otherwise acquire land for a berm bank through the prop- erty of the plaintiff, of the dimensions of the berm bank of the Miami Canal ; and the canal company must be presumed to have done its duty in that respect.” This instruction was assigned for error by the railroad com- pany, but the Supreme Court of Ohio, through Brinkerhoff, J., says : ^Mn what was said by the court below iu its charge to the jury, in respect to the berm bank of the canal, we see no error. A berm bank for the canal was necessary for the uses of a canal ; and whether it consisted of a natural or artificial de- posit of earth can make no difference. It must have formed a part of the original appro])riation l)y the canal, unless there were a si)ecial agreement to the contrary, and its dominion over it was, in law, exclusive.” In Edwards v. Schlund, 21 Ohio C. C., 193, the court said: ^‘This l)ank is held to be state land, on the theory that the State took actual possession of so much of the land as is nec- essary to form the bed and banks of the canal and tow path, and the banks necessary to hold the tow path and keep it in position.” In Schuylhill Naviyation Co. v. Berks County Conimisisoners, 11 Pa. (1 Jones), 202, the court said : C^An incor])orated canal includes as constituent ])arts, the bed, berm 'banks, tow-])r(ths and tool houses and collector’s of- fices, and if the (‘anal is not subject to taxation, the ])ro])erty forming such constituent parts are not taxable.” Fn Western Pa. II. Co. v. Childs, F^ittsl)iirgli \i., 11 G; “Tlio vorukies of public works of i^ermsylvania, and those (‘lainiing- under tliein, liave a title in fee simple to all the land occaipied by the canal, including tliat covered by tlie slopes and embankments originally constructed, and the natural accre- tions of the same from time to time.” ”ln constructing a canal its banks sliould be made strong enough to retain the water in its channel, not only against the adjacent land in the condition it then is, but also against any lawful use that such land may he put to.” (1827) — Staffordshire & Canal Nav. Co. v. Hallen, 6 B. & C., 317; S. C., 9 I). & K., 226 ; 30 Kev. Kep., 333; 13 E. 0. Ij., 151. 3. The canal commtssionees hold the canal with all its INCIDENTS IN TRUST FOR PUBLIC USES, AND CAN GRANT NO EASEMENT THEREIN FOR THE BENEFIT OF PRIVATE PARTIES AND TO THE EXCLUSION OF THE PUBLIC. We maintain that the same rule applies to the Canal Commis- sioners, public officers holding public property in trust for pub- lic uses, as applies to a municipal corporation holding streets in trust for public uses. The whole law on the subject is stated in the well known cases of Field V. Barling, 149 111., 556. Hihhard v. Chicago, 173 111., 91. Snyder v. Mt. Pulaski, 176 111.,- 397. The law on the subject was summarized by this court in the Pulaski case thus: ^^The streets of a city are dedicated for public use, and for these purposes the city council may improve and control them and adopt needful rules for their management and use. But that body has no power to alien or otherwise encumber such streets so long as they are public streets, but must hold them dn trust for public uses only, and hence no easement or right therein not of a public character can be granted by a municipality or acquired by any individual or corporation for exclusive private use, to the exclusion of the public. {Field V. Barling, 149 111., 556; Hibbard & Co. v. City of Chicago, 173 id., 91.) A permanent encroachment upon pub- lic streets for a private use is a purpresture, and is in law a nuisance. {Briggs v. Phillips, 103 N. Y., 77; Smith v. State, ) > L\‘) N. J. L., 7lL^; AffonK’if (Ameral v. Hcislum, 1 Mote., 115; ///'/>»- ((■ 6V>. v. Clii) of Chicago, supra.) hi tlio last (*as(‘ ('itod it was said (p. 98): ‘Whore the city has autlioriz(‘d a toin- porary iiso whioh causes a temporary olistriictiori, one hav- ing- been licensed to exercise such temporary use would not he liable for a penalty, under the ordinances, for obstruct- iiig the street, as it was permitted as a matter of grace or favor. That such permission was given may be implied from circumstances. {Gridley v. City of Bloomington, 68 111., 47.) But when the city demands the removal of such a structure, it, if permitted to remain thereafter, becomes a nuisance.’ {Snyder v. Mt. Pidaski, 176 111., 402-3.)” The other cases cited in the brief, from New York, New Jersey and Vermont, are in full accord. If public servants, employed to take care of public property and conserve it for the public, can give it out for private uses to Munroe, and Griswold, and the Economy, there soon will be no public property left. The case is aggravated when the property is put not merely to a private use, but to a dangerous private use, — as in the Barling case, when the defendant was permitted to blockade a public highway by an elevated bridge, which shut out light and air, pre- vented the passage of fire apparatus, and imperiled passers-by. In that case the court cited with approval Barnett v. Johnson, 15 N. J. Eq., 481, saying that: “ ‘even the Legislature would have no more right to deprive them (abutting owners) of it without com})ensation than they would have to draw oft the water from a navigable stream.’ ” Here, also, the work is dangerous. It imperils the canal; and, as the court there cited the rule against blockading streams as applicable to structures blockading streets, so now, we cite the cases protecting the streets as equally effective to protect the stream. 4. TilK LEASES AKE IN TERMS ASSIGNABLE TO IRRESPONSIBLE PARTIES WITHOUT THE (vVnAL OoM M ISSIONERS ^ CONSENT, AND THIS WILL RE- LEASE THE DEFENDANT AND I.EAVE THE StATE NO REMEDY FOR THE PRO- TECTION OF THE CANAL. And again it will be remembered that the contract was made with Griswold and his assigns, and that the familiar clause for such assignable contracts to the effect that ‘‘this contract shall not be assigned or underlet without the consent in writing of the ])arty of the first part had and obtained,’’ was conspicuous for its absence. It could be assigned to a bootblack, to a beggar, or to a multi-million corporation, the moment after it was made, and re- assigned to another at any time thereafter, without any consent, let or hindrance on the part of the Canal Commissioners. But the assignment clause is conspicuously present in general contract of the defendant with its contractor, Heyworth. It pro- vides in the general contract form. Clause 8, “that he will not as- sign, by power of attorney or otherwise, any portion of said work, unless by and with the previous consent of the party of the first part.” “The rule is, as the liability of the assignee grows out of privity of estate and that only, it ceases when that ])rivity ceases to exist, and each successive assignee is liable only for such breaches of covenant as occur while there is privity of es- tate between him and the lessor.” Consolidated Coal Co. v. Peters, 166 111., 361, at 367-8, • citing Taylor on Landlord and Tenant, Sec. 452; Wood on Landlord and Tenant, Secs. 307, 339, 340, 349. It follows from this that the defendant could assign these con- tracts and leases “to a beggar, or a person who is on the eve of quitting the country forever,” the town pump, or any insolvent assignee, or each one to a different insolvent assignee, and divest itself of liability. (2 Taylor Landlord and Tenant, Sec. 452.) It did not enter into the covenants in the first place and is there- fore not primarily liable. It is liable only by privity of estate, and its privity of estate can be cut off by assignment to an in- solvent assignee. (Ibid., Secs. 452, 454.) And no bond or security of any kind was taken for the [xn-fonn- ance of the work to tlie satisfaction of the Canal (Jonnnissiornn-s or for the protection of the (yanal. The evidence affirmatively shows that after the assignment to the Economy Light & Power Company, defendant notified the Canal Commissioners that it was about to begin work and asked the Commissioners to designate an inspector to oversee the work on the part of the Canal Commissioners ; that they designated one Kehoe, who has since died, and no inspector has been appointed in his place. This, clearly, amounted to an acceptance ])y the Commissioners of the defendant as the lessee, which released the original tenant of any responsibility. The consequence is that only the assignee in possession is liable, and it can acquit itself of liability whenever it chooses. We are told that this merely shows that the Commissioners made and improvident, a foolish contract. The fact that such a contract is made assignable to an insolvent assignee independent of any consent by the Canal Commissioners, itself constitutes an element of peril to the canal, and the reason why the court of equity at the suit of the state will scrutinize the transaction closely. It amounts to an unconscionable contract, and if otherwise violates the law it will be pn,t an end to by the court. 5. THE KANKAKEE FEEDER LEASE IS VOID. The canal was provided with feeders from the beginning. Among these was the Kankakee feeder, concerning which it ap- pears in evidence from the (kinal Ke])ort of 1900, ]). 218, as follows: ‘ ‘ K.INKAKEE FEEDER. ^^A navigable feeder from the Kankakee Piver 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 ex- cept at lower end, where the depth was to be 5 feet. The slope to be 2 to 1 raised 5 feet above top water line — declivity 2 inches to the mile. This feeder was com])leted in 1848. The termination of the feeder was at a point on the canal 1,820 feet S. E. of the N. W. corner of Section 31, Tp. 34 N., R. 9, 6G piissos ill a soutliwost ('oiirse across tlio Du I^age River, wliere it enters Section ofi, Tp. :U N.,’R. H; thence S. W. l,05f) feet to the center section line oMS feet west of the east line of the sec- tion ; thence south to a point 792 feet north of the south line of Section MG; thence southeast, entering Se(*tion Ml-34-9 again at a point MG4 feet north of its southwest corner; crossing this (‘orner it then passes through Sections G, 4 and 5 to a 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 appears in the plat hook No. 2, Canal Records. “The total cost api^roximated very nearly to $50,000. “The Kankakee feeder has not been used for several years. The aqueduct that carried the water over the Des Plaines and Du Page Rivers has long since gone to decay. There are, however, over 125 acres of good land used for this feeder that now belong to the State of Illinois.” Elsewhere it appears in evidence that use of the Kankakee to convey water to the canal ceased in the year 1888, less than 20 years before the suit was begun, and 14 years before the lease was made. Evidence of Dimmick (Abst., p. 501). Evidence of McDonald (Abst., p. 275). This feeder is the* subject of two of the lea^ses in question. By the lease. Exhibit B, September 2, 1904, the Commissioners leased to Griswold and assigns, for 20 years plus 20 years more, not only (1) the 90-foot strip along the tow-path side of the canal through six sections of land, and (2) the riparian tract in Section 31, but “Also that part of the Kankakee feeder and the 90-foot strip on each side of said feeder in Section 31 * * * and in Section 5^ * * * ■\^in County, Illinois.” Tills covered the mouth of the feeder, the part crossing the ripa- rian tract and Des Plaines River and the adjacent portion of the feeder. By the second lease, exhibit C, of this information, dated August 8, 1905, the Commissioners leased to Griswold, his successors and iissii>ns, ilip right ot the State to divert the waters of tlie Kanka- kee River into the Kankakee Feeder and discharge theai into the Des Plaines River in Section 31; that is, into the pool to be formed by the dam (thereby the feeder, a feeder of the mill-dam instead of a feeder of the canal) ; Together with the right of the state to repair and construct the dam across the Kankakee River ; Also such right of the state as is within the control of the Canal Commissioners to construct at each end of the Kankakee Feeder suitable gates for controlling the discharge of the waters of the Kankakee River through the feeder ; Also such right as the Canal Commissioners have to enter upon the feeder and dam in connection therewith. This lease also was made subject to the former lease. This lease ran for 20 years for the rental of $150 a year, payable on August 10th of each year. (A) This lease contained, among other provisions, the follow- ing: ‘^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.’’ Also the following: ^^It is herein further provided that this lease may be ex- tended for a further period of twenty years at a rent to be fixed by an appraisal, to be made by three disinterested ap- praisers, to be appointed 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 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 canal property, they shall deem the interests of the State require it to re-possess and use said property for State purposes.” The Legislature of the State are, it is submitted, the proper officers having charge of canal property. The Legislature, on No- vember 27, 1907, passed the resolution which is set out supra. It is siibinittod tliat the power of cancel lation reserved in the lease l)y the (/Oinmissioners, the agents of the Legislature may ])i-operly be exercised, and was properly exercised, by the i)assage of this resolution. '']’'lie failure and refusal of the Canal Commissioners to obey this resolution does not defeat the will of the Legislature, but it is an added ground for maintaining the present proceeding and for the passage of the Act of December 6, 1907. It is further submitted that by the Act of December 6, 1907, en- titled ^‘AN ACT recognizing the Des Plaines and Illinois Rivers as navigable streams, and to prevent obstructions being placed therein, and remove obstructions therein now existing,” the power to cancel said lease was properly exercised. Said Act is as fol- lows: ‘CSection 1. Be if 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 Sani- tary District of Chicago, in tlie 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 didy 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 As- sembly; and the Governor and Attorney General are hereby authorized and directed to take necessary legal action or ac- tions to remove all and every obstruction now existing in said rivers that in any wise interferes with the intent and purpose of this Act. ^‘Section 2. Whereas, an emergency exists; this Act shall be in force and effect from and after its passage. Approved, December 6, 1907.” (Laws of Illinois, 1907-1908, pp. 32-33.) It is submitted that the rule is the same in respect to such bodies as the Canal Commissioners, as with regard to municipal corpora- tions, which is laid down by the Supreme Court of the United States in Laramie County v. Albany County, 92 U. S., 307, at 312, in the following words : ‘‘Political subdivisions of the kind are always subject to the general laws of the State; and the Supreme Court of C^on- necticut decided that the Legislature of that State have inline- 69 morially exercised the power of dividing towns at their pleas- ure, and upon such division to apportion the common property and the common burdens as to them shall seem reason al)le and equitable. Granby v. Thurston, 23 Conn., 419; Yarmouth v. Skillings, 45 Me., 142 ; Langtvorthy v. Dubuque, 16 Towa, 273 ; Justices’ Opinion, 6 Cush., 577. ‘‘Such corporations are the mere creatures of the Legisla- tive will ; and, inasmuch as all their powers are derived from that source, it follows that these powers may be enlarged, modified, or diminished at any time, without their consent, or even without notice. They are but subdivisions of the State, deriving even their existence from the Legislature. Their officers are nothing more than local agents of the State; and their powers may be revoked or enlarged and their acts may be set aside or confirmed at the pleasure of the paramount authority, so long as private rights are not thereby violated. Russell V. Reed, 27 Penn. St., 170.” The direction of the Legislature to exercise the reserved power to cancel this lease was therefore binding upon the Canal Com- missioners; and in this proceeding in equity that which ought to have been done will be treated as done and the feeder lease is therefore to be considered as a canceled lease. (B) Again, this feeder lease is void by reason of the renewal provision, in like manner as the lease Exhibit B. (Abst., p. 34.) But, further than that, the feeder itself is an integral part of the canal, and as such is beyond the power of the Canal Commission- ers to barter away for 40 years, or 20 years, or one year, or any other time. The statute under which the Commissioners were acting at the time this lease was made, conferred upon the Commis- sioners the following general authority: R. S., Ch., 19, Sec. 8 (Anidt. of Apr. 21, 1899) : “Said Commissioners shall have control and managemenl of the Illinois and Michigan Canal, mcluding its feeders, basins, and appurtenances, and the property thereto belonging, and all locks and dams and other improvements of the navigation of the Illinois and Little Wabash Rivers, and shall have au- thority,” etc. (Here follow the nine enumerated specifications of author- ity, which include) : “Fifth — To lease from time to time any of the canal lands or lots owned by the State: Provided, no lease shall be for a period exceeding twenty years. “Sixth — To lease from time to time to the highest bidder 70 therefor, any water ])ower and lands or lots eonneeted there- with. ^ (Here follow the provisions for advertising, limiting leases to 20 years, requiring bids to be accompanied by security, and also the following) : (C) The Kankakee Feeder lease (Exhibit (1, Abst., p. 36) is a water-power lease. Section 8, Clanse Sixth. * * * ‘‘All leases of water-power and extensions thereof shall be subject to the right of the Cornmissi oners to resume, without compensation to the lessee, the use of any such water power for the purpose of the canal, and also wholly to abandon or destroy the work by the con- struction of which the water privilege shall have been created, whenever, in the opinion of the Legislature, such work shall cease to be advantageous to the State. “Seventh — To lease from time to time to the highest and best bidder (after publishing notice in some newspaper pub- lished in the county where the ice privilege to be leased may be), in sections not exceeding one thousand feet, lineal meas- ure, upon such terms as not to interfere with the proper use and management of the canal, the right to take and harvest ice therefrom, or from any of its feeders, basins and appurte- nances, and to prohibit all persons from taking and harvesting ice therefrom without such lease: Provided, no such lease shall be for a longer time than twenty years.” 4 Starr & Curtis’ Ann. Stats. (Supp., 1902), pp. 90, 91. (D) No power is conferred on the Commissioners to let out the Canal Feeders. None of these confer power to lease any part of the Canal proper, or its dams, feeders, basins or appurtenances. The ab- sence of an express power to do these things is the withholding of such power by the Legislature. It is clear that the Canal Commissioners have no right to alien- ate, or dispossess the State of the canal or any part of it. The very language of the statute, “The canal, including its feeders/’ makes the feeder part of the canal, and plainly it is so, independ- ent of any statutory words. (E) The lands acquired by the State for the Canal and for the feeder do not revert to former land owners upon the abandonment 71 of the canal. And its inni-nser confers no authority on the (^nn- inissi oners to dispose of it. Ilexford v. Knight, 31 N. Y., 308. Frank v. Evansville S Co., Ill Tnd., 132. Mason v. Lake Erie & S. W. Eg. Co., 1 Fed. Hep., 712. Craig v. Allegheny, 53 Pa. St., 477. And uses of canal property for purposes not connected with tlie use of the canal (e. g., driving along its banks) are not excused by the fact that the bridge over the canal was broken, and rendered any other course difficult. White V. State, 14 Ohio, 468. (F) No length of non-user will extinguish the rights of the State in the canal property. Curran v. Louisville , 83 Ky., 628. Nor does the State by permitting the feeder (in this case a feeder covered by timbers, planks and earth) to be used as a pas- sageway for more than 20 years, cease to hold the feeder as a feeder or become liable for injuries upon it as a street or highway. Donahue v. State of N. Y., 112 N. Y., 142; 2 L. E. A., 576. or lose its title to the property. State V. Doig, 2 Eich. (S. Car.), 179. The feeder is still the pro])erty of the State, as the above quota- tion from the Canal Commissioners’ report for 1900 shows. There are, hoivever, over 125 acres of^ good land used- for this feeder that now belongs to the State of Illinois.’') (Canal Eeport, 1900, p. 220.) The Commissioners have no power to dispose of this property. The defense sought by use of the words ‘Cxbandonment,” ‘^ease- ment” and “reverter” to justify this ultra vires act — we reply that no competent evidence of abandonment or reverter was re- ceived, that what evidence as to this was received was incompetent and erroneously received — we further re])ly that whatever right and title the State had, it was the duty of the Commissioners to conserve. Like the Consuls of the Eepublic, they should take care ‘‘ne quid res puhlica detrimenti capiat.” Tlio act of tlie Commissioners in leasing this part of tlie canal, ev(‘n if it is in disuse, is nltra vires and void. TV. Till*: FI.()\VA(iE (’ONI’RACT AN!) TFIK LKASE OF THE RIPARIAN TRACT, TOW- PATH BANK, AND OO-FOOT STRIP^ ARE SEPARATE CONTRACTS. THEY MAY' PASS TO SEPARATE GRANTEES, AND SHOULD BE CONSTRUED AS DISTINCT AND SEPARATE CONTRACTS. BUT IF CONSTRUED TOGETHER AS ONE CONTRACT, THE RESULTING CON- TRACT IS A water-power lease made in violation of the stat- ute THEREON, AND THEREFORE VOID. 1. The contracts are separate contracts. It has been contended contra that the fiowage contract, lease and pole-line lease of the tow-path, being made on the same day, are to be construed as one. We deny this contention. The lease itself (Ex. B) (Abst., p. 34), to Griswold, his successors and assigns, is expressly made ‘'subject to a contract dated the 2d day of Septemlier, A. D. 1904, to Harold F. Griswold, affecting said premises,” and “it is further cove- nanted and agreed between the parties aforesaid that said party of the second part is hereby charged with knowledge of all of the provisions contained in said contract with Harold F. Griswold in so far as they affect the ju'emises hereby leased.” Each contract is made assignable without the consent of the Commissioners. They may be assigned to different assignees and the second is expressly made subject to the provisions of the first. This was for the express purpose of making the assignee of the second take subject to the rights of the adverse assignee of the first. ‘‘Griswold, his successors and assigns” in the one is not the same party as “Griswold, hi's successors and assigns” of the other. They are separate contracts. The trial court so held. During the closing argument the Court said (p. 4898) : “You may, perhaps, shorten your argument, Mr. Reeves. You may assume that if the flowage contract is to be dealt with separately from the 20-year lease, and that if the true inter- pretation of it is that it grants right in perpetuity it is void. You need not argue that.” (Alist., ]>. 1718.) IW And Inter ( p. 4t)0-l-) : The Ooiii’t: slinll hold tliein to be separate ('ontraets.” And ill its final opinion tlie trial eourt said: ‘‘Now, as to the interpretation of tlie lease and the flowage contract. In my judgment these two documents are distinct and separate; they were intended to be distinct and separate. ' They were so intended by the parties, and they use express language which has so clearly indicated it. They are two sep- arate documents, both sealed instruments, and that as a mat- ter of common law would make them separate and distinct deeds. Then the second instrument refers in terms to the first and charges the grantee expressly with knowledge of it. There would be no need of their charging the grantee with knowledge, particularly if the grantee was the same person, if they were intended to be construed together. The very fact that he is expressly charged with knowledge of another in- strument in the making of a second instrument, is to my mind clear evidence that the parties intended that the instruments should be separate and distinct, both being assignable in their nature. ’ ^ Also : “As to the contract itself, there being no limitation of the time, it seems to me that it is an attempt on the part of the Commissioners to grant a right in perpetuity to Griswold and ^ his assigns to overflow this land ; that the grant of such a right in perpetuity is equivalent to the sale of an interest in the land, the sale of the easement, and that such sale of the ease- ment is beyond the power of the Trustees because they could not make any sale at all of the 90-foot strip.” 2. But if construed together the lease and flowage contract con- stitute a water-power lease made in violation of the statute, and are therefore void. Construed together, they are a lease of the right to build “a dam and other works” and to extend the dam across the river and 90-foot stri]), to maintain the dam 22 feet high, to attach it to the tow-palh em])ankment, to flow the water u}) against the tow-])ath bank and use the tow-path embankment itself as a retaining wall, to overflow the 90-foot strip and the riparian tract and hack the water up alongside the canal for 10 miles, and to convey the ])ower as electrical energy by a ])ole line on the tow- path for 25 miles. These are all the distinctive features of a water-power lease. And all this was agreed upon with the avowed purpose on the 74 ])art of tlie lessee of eonstrueting* an extensive permanent water- powei' ])lant. The ordinary (4ause in such leases for eancellation on 30 or 00 days’ notice was left out l)ecause inconsistent with the permanent works proposed. Commissioner Sackett’s testimony on the subject (condensed) is: ‘‘That clause in the lease giving an option of renewal to Griswold and assigns was suggested by Mr. Walker (attorney for Canal Commissioners). Most of the canal leases provide for a cancellation upon notice; that feature was discussed ; that if in a work of that sort there was cancellation provided upon 80 or 60 days’ notice, it would hamper this proposition.” (Ahst., p. 241.) The lease is expressly designated both by Munroe and the Com- missioners, themselves as a water-power lease by the proceedings of the Canal Commissioners, at the meeting of April 5, 1905 ; there, as the record shows, “Mr. Charles A. Munroe was present, sub- mitted proposition for additional lease of ivater power on the Des Plaines Kiver.” (x\l)st., p. 262.) Additional to what! Additional to the lease of water-power he had received before. The only one he had received before was Exhibit B. (Ahst., p. 84.) Exhibit B interpreted as to the uses intended, by referring to the flowage contract (as was done by the court below) is a lease of water-power and as such is void, because not made by public advertisement to the best bidder as the statute provides. The statute on leases of water-])ower (as in force in 1904) reads as follows : “Section 8. Said Commissioners * * * shall have au- thority ^ ^ ^ Sixth — To lease from time to time, to the highest bidder therefor, any ivater-power and lands or lots connected there- with. Before any such lease shall be made, at least thirty days’ public notice of the intended letting shall be given by publication in some newspaper published in the neighbor- hood, and such other notice as the Commissioners shall deem best. The Commissioners shall have power to require that bids be accompanied by security, and may reject all bids not satisfactory to them, and re-advertise until they shall receive satisfactory bids. No lease shall be for a period exceeding twenty years, but the Commissioners may ]:)rovide for the ex- tension of any lease from time to time, not exceeding twenty years at any one time, at a rent to be fixed by an appraisal. 75 to ho iiiado by throe disiiitorostod appi’aisco-s to l)o appointed by tlio (lovonior, and snob appraisal shall b{‘ snbjeof to the approval of the (75)niinissioners. All leases of water-})ower and extensions thereof shall !)e subjeet to tlie right of the Commissioners to resume, without compensation . to tlie lessee, the use of any such water-power for the purpose of the canal, and also wholly to abandon or destroy the work by the construction of which the water privilege shall have been created, whenever, in the opinion of the Legislature, such work shall cease to be advantageous to the State.” (R. S., Ch. 19, Sec. 8, Cl. 6, as amended by Act of April 21, 1899, Canal Laws, pp. 173-4.) None of these restrictions were observed. It follows that con- struing the three contracts together as a water-power lease, it is void. The defense contended contra to this that ‘‘The water-power re- ferred to in the Act as the water-power, c/ the canal, created by the canal . ” ( p . 907 . ) But that is not the statute. The water-power covered by the statute is any water power. V. r THE SALE OF CANAL LANDS WAS MADE BY AN EMPLOYE OF THE CANAL COMMISSIONEKS, IN THE ABSENCB OF ALL THE COMMISSIONERS, AND WITHOUT ANY AUTHORITY CONFERRED UPON HIM, AND WAS VOID. The testimony as to the sale is given by the employe of the board, John M. Snyder, as follows: “Witness Snyder: I conducted the sale at the time named in the notice, viz., Lecember b, 1904, at 10 a. m. There were also present Mr. Munroe, Mr. Kehoe (a canal employe, who died January, 1908), and the employes of the office. None of the Canal Commissioners were present, nor was Mr. Walker, the attorney for the Board. I offered the property for sale. There was no one bid except Mr. Munroe. I struck it off and declared it sold. I was instructed, I think, in the absence of the Commissioners or the attorney, by the superintendent , to conduct the sale, and did so in pursuance of those instruc- tions. “My recollection is that it was the general understanding that Mr. Walker would come down and conduct the sale, but 7 (; at the last moment lie eoiild not be present. I think Supt. Mc- Donald was eompelled to be in Chicago on that day. ‘‘My instructions were received from Mr. McDonald. I was instructed to conduct the sale.” From this it appears that no single one of the Commissioners was present at the sale; that it had been arranged with their at- torney, Charles L. Walker, of Rock Island, so to conduct the sale; that Charles R. Walker, of Rock Island, was not present at the sale; that he gave; no instructions regarding the sale; that there- upon another employe of the Commissioners, Leon McDonald, in- structed a third employe, John M. Snyder, which Snyder accord- ingly did. The invalidity of such a sale is too clear for argument. The Commissioners absented themselves. They had no power to delegate the making of the sale ; and, indeed, there is no evidence that they sought to do so; but it was assumed by the minor em- ployes that the attorney would act. He absented himself, and (it is said by the assistant secretary) delegated his assumed authority by a telephone to the superintendent; the superintendent did not shoulder the responsibility, but delegated it to the assistant secre- tary. The sale by the assistant secretary was void. There was no power to delegate. A delegated authority cannot he re-delegated. (2. Co. Inst., 597, Story, Agency, Sec. 13.) (1842) Mason v. Wait, 4 Scam., 127 (Guardian’s sale un- der special legislative authority, made by Guardian’s attorney in fact, invalid.) (1874) Sebastian v. Johnson, 72 111., 282 (Administratrix’ sale, made by an agent or auctioneer whom she engaged for the purpose, but in her absence sale held void and re- lief denied to purchaser.) (1816) Heyer v. Leaves, 2 Johnson’s, Ch. 154 (Master’s sale by deputy master, invalid.) (1850) Poivell V. Tuttle, 3 N. Y., 396 (Two loan commis- sioners authorized to sell; sale by one invalid.) (1857) Moss V. Peary, 2 Pat. & Heath (Va.), 483 (Sale by one of two, the other being absent, invalid.) (1876) Noland v. Noland’s Admr., 75 Ky., 426 (Court Commissioner; sale by auctioneer in absence of, in- valid.) (1861) Cheatham v. Phillips, 23 Ark., 8C (Swamp Land Commissioners; sale by sub-commissioner invalid.) 77 (1894) h*i}(‘ kerf 011 v. (h’imc,s, 8 Wash., 47)1 ((.\)uiity (joininis- sioners; sale au(*tiorieer 's servi(*.es uiiauthorizcHl.) (18()4) White v. Lester, 40 N. Y. (1 Keyes), .410; (Loan eoinmisisoners ; sale hoik being present; book entries by one, valid.) That (Commissioners may employ anetioneer if lie acts in their immediate presence and under tlieir present control. See Blossom v.R. Co., 3 Wall., 205. " The rule is well stated by the NeAv York Court of Appeals (Har- ris, J.) in Powell v. Tuttle, 3 Comstock (N. Y.), 396: ‘^The sale took place at the time and place appointed. No l)ersons were present except George Kingsbury, one of the Commissioners, and the defendant, Stephen Tuttle. Kings- bury offered the premises for sale pursuant to notice, and Tut- tle became the purchaser for $468.50, the amount due upon the mortgage for principal and interest. *#*##*****# ‘^Several other parcels of land were advertised by the Com- missioners to be sold at the same time, but the sale of these parcels, with one exception, was postponed until the afternoon of the same day. On a subsequent day both Commissioners executed to Tuttle a deed of the premises as the purchaser thereof at the sale, and at the same time Tuttle delivered to the Commissioners his mortgage upon the same premises for the amount of the principal due upon the Everitt mortgage, and paid the interest and costs. *********** ‘^HARRIS, J. The first, and as it appears to me the vital question in this case is, whether the power to sell conferred by statute upon the Commissioners has been well executed. But none of the Commissioners was present at the sale. The plain- tiffs insist that the power of sale is vested in the Commission- ers jointly, and that in the absence of one, no valid sale could be made by the other. On the other hand, the defendants con- tend that the sale, being a ministerial act, one Connnissioner might delegate to the other the power to sell, and, in this in- stance, the execution of the deed to the purchaser is evidence of such delegation, and a ratification of the sale by the absent Commissioner. Whether the commissioner acted discreetly in making the sale, or whether he should have kept the sale open, as he did in other instances, until afternoon, is not now to be considered. There is no allegation of fraud or collusion in the bill. ‘^The sole (luestion is, whether the Commissioner had au- thority to make the sale ivihen and as he did. “In the terms of the statute itself, there is certainly nothing wliieli rcHjiiires, or indeed seems to favor, the constructfoii for which the defendants contend, and wliich is necessary in order to sustain this sale. The dOth section of the act {Sess. Laivs of 1837, p. 129), declares that upon the neglect pf the borrower to pay the yearly interest, etc., the Commissioners sliall be seized of any absolute and indefeasible estate in fee in the lands, but the mortgagor, his or her heirs or assigns, shall be entitled to retain possession of the premises until the first Tuesday of February thereafter, and to redeem the same as provided in the act. The 31st section requires the Commis- sioners to advertise such premises to be sold on the first Tues- day of February then next, at the court house. The 32d sec- tion directs the Commis*sioners to expose the lands described in the mortgage foreclosed, to sale at public vendue, on the first Tuesday of February, and upon such sale to convey the lands to the highest bidder. By the 34th section the Commis- sioners are authorized at any time, before the premises are actually struck off, to postpone the sale at their discretion, for the purpose of inquiring into the value of the premises. In all these provisions relating to the sale, as well as in every other provision of the act, involving the powers and duties of the Commissioners, the Legislature seems to have contem- plated the presence and participation of both Commissioners in every official act. I think it very clear that it was intended to secure, in every essential act to be performed by the Com- missioners, their joint deliberation and united judgment. When a duty merely mechanical is to be performed, as in the case of fixing up the advertisement of sale, the Commissioners are authorized to cause such duty to be performed. But when any act is to be done, which involves, in any degree, the exer- cise of discretion, it seems to have been the policy and purpose of the Legislature to secure the benefit of the joint exercise of such discretion by the Commissioners themselves. It is a fa- miliar rule of law that a special authority must be strictly pursued. When such authority is prescribed by statute, and when, in its exercise, it operates to divest the citizen of his property, courts cannot be too sedulous in confining it within the boundaries which the Legislature have thought fit to pre- scribe. At this day and in this country, especially, the protec- tion of private rights demands this safeguard; and he who will review the adjudications of our courts involving this prin- ciple, will be interested to observe with what uniformity and increasing jealousy the exercise of such a power has been re- stricted to its own specified limits. {Sherwood v. Beade, 7 Hill, 431 ; Striker v. Kelly, id. 9; Same case in error, 2 Denio, 323; Sharp v. Speir, 4 Hill, 76; Downing v. Bugar, 21 Wend.. 178.) In the latter case, Cowcn, J., says, ^The rule seems to be well established, that in the exercise of a public as well as 1 \) privato auiliority, whether it l)(‘ [niiiisi(a-ial oi* judicial, (ill the persons to whom it is eommitted must (‘ontei* and acd. to- i>-ether, unless there t)e a i)rovision that a less numher may [)roeeed.’ ” Cliaiu'ellor Kent, still earlier, tiad stated the rule in strong terms as to judieial sales, in llei/er v. Deaves, 2 Johnson’s Oh., 154, thus: “The Chancellor. Tlie master, l)eing sick, did not at- tend the sale, but deputed a competent agent, who attended and sold the land. The objections to the fairness and regu- larity of the sale are denied and completely removed except the objection that the sale was not made by a master who was ])resent. The statute says (Laws, Sess. 36, Oh. 95, Sec. 11), ‘that all sales of mortgaged premises, under a decree, shall be made by a master’; and I do not think it proper to allow such a trust as this to be subject of a special deputation. It appears, by one of the affidavits, that the master in whose name the mortgaged premises were sold, was, at the time, in the city of New York, about 90 miles from the place of sale. If he had been present, and had employed an auctioneer or crier, it would still have been his sale, and the parties would have had all the benefits of his superintendence and judg- ment. But to allow such a sale as this to stand, would open the door to a very lax and dangerous practice. The statute intended that such sales should be under the immediate di- rection of a known and responsible public officer. An under or deputy-master is not an officer known in law.” So in Cheatham v. Phillips, 23 Ark., 80, the Supreme Court of Arkansas (English, C. J.), said: swamp lands belonged to the State, by grant from Congress. The title to them was not in the commission- ers; they derived their power to sell them from the statutes, and had to follow their requirements in order to make valid sales. There was no provision of the statutes authorizing the Board of Commissioners to appoint deputies or sub-commis- sioners, and to delegate to them the power of selling the swamp lands, and they could not, without authority of law, transfer to other persons the power of sale entrusted by the legislature to them.” The other cases present the rule in language equally strong. It was suggested at the bar of the trial court that a different rule should be applied to Commissioners’ sales from that applied to judicial sales. This was a misapplication of the doctrine that judicial powers cannot be delegated. It is true that judicial powers cannot be delegated, and with stronger reason, if possible, it is 80 true that legislative power cannot be delegated. The legislature had tlie power to sell tliese lands or order their sale. Tliev did order or authorize their sale in a certain manner l)y certain officers with (‘ertain i*estrictions. If a court commissioner or master wrongfully assumed to dele- gate his })Ower to a third person, the court could the more readily set that sale aside because the commissioners are compelled to make report to the court and obtain confirmation. The very ab- sence of this step from the commissioners’ sale makes it the more necessary that the power should be rightfully exercised by the statutory officers in the first instance. Functions to be exercised by county officials cannot without special authority given by law, be delegated to strangers wdth power to act in their stead.” (1875) Jackson Co. v. Brush, 77 111., 59 at 65. (Tlie above was a case of county bonds in aid of railroad put in escrow^ wfitli trustees for delivery by them when they find conditions of 'county subscription complied with; held that power, county commissioners to deliver bonds or find conditions complied with cannot be delegated.) VI. THE DEED OF THE EIPARTAN TRACT IS VOID. 1. We have seen (IV, supra) that the sale wms void. The deed which professedly simply carries the sale into effect necessarily falls with the sale. But the deed presents other infirmities also. 2. It expressly renews the void covenants of the canal com- missioners in the void flowage contract, and is therefore void. The deed above referred to, dated January 6, 1905, from the Canal Commissioners to Griswold, is made with a reservation which is in the following words, to wit : ” Subject, however to the terms, conditions and provisions of the flowage contract and lease, made to said Harold F. Gris- wold and bearing date September 2, 1904, which terms, condi- tions and provisions still remain in full force and shall he fidly kept and performed/’ The flowage contract itself is illegal and void. The clause quoted 81 from the deed above is a re-affirmation by tlie (/anal Commissioners of tliat illeg'al and void eontraet and a covenant that its ‘Herrns, conditions and provisions still remain in full force and shall be fully kept and performed.” This danse is a part of the granting danse of the deed. It is an express covenant by the Canal Com- missioners that their former illegal contract shall be enforced. It is the introduction of the illegality of the flowage contract into the deed. It is a part of the consideration for which the purchase money of the deed is paid and comes within the rule laid down in the cases heretofore cited that if any part of the consideration of the contract is illegal, the entire contract fails. 3. It is subject to the reservation of the fioivage right ivhich {because the fioivage contract is void) never left the Canal Com- missioners. The effect of the clause above quoted from the deed is to defeat any claim of right under the deed in the grantee to flow the prop- erty. The deed of the riparian tract conveys ivhat was left after the right of fioivage had previously been disposed of by the flowage contract. What was left (if that contract was valid) was the Utley minus the right of fioivage. Therefore the grantee as grantee ac- quired no right of flowage. The provisions of the flowage contract and lease by the express terms of this deed are to remain in full force as a reserve provision against this deed, and if the flowage contract and lease are valid then the holder of the flowage contract is the one and only one who has the right to flood the lands, and as that flowage contract is illegal and void and conveyed no rights to the grantee in such con- tract, as held by Judge Mack, then (^uery: AVhere is the right of flowage? Answer: It must remain in those who attempted to grant it, viz. : the Canal Commissioners for the benefit of the State. (The lease also is made subject to the flowage contract ; and the provisions of the flowage contract are expressly reserved from the lease. The lessee takes no right of flowage as lessee. That right remains in the grantee of the flowage contract, but as the flowage contract is illegal and void and no rights pass from the Canal Commissioners by virtue of it, then it still re- mains in the (^anal Commissioners even against the holders of the lease, and therefore from any construction that can be 81^ put upon it the ri^iit of flowa^e lias not passed from the Canal (^ouiiuissionei-s and no right of dowage has passed to the lessee in the lease nor to the grantee in the deed.) vrr. THE ENTIRE SERIES OF CONTRACTS IS AGAINST PUBLIC POLICY AND VOID. The illegality cannot be purged from the do wage contract, the lease, the sale and the deed and leave a valid subsisting contract. The entire series of contracts with Munroe (in the name of Gris- wold) were the outgrowth of a determined effort on his part to acquire everything which could he acquired at this locality from the Canal Commissioners. The negotiations began with the proposal by Munroe in the name of Griswold to buy, and the Canal Com- missioners to sell, and led to the advertisement of the property for sale. When the time for sale came no Commissioner was present hut their clerk announced that the sale was indednitely postponed. At the next meeting of the Commissioners the Commissioners voted that the property be withdrawn from sale because it could be leased to hetter advantage, and a contract to dow in perpetuity the riparian tract (54.5) acres (the so-called 17-acre tract) and the 90-foot strip for several miles in length was granted to Munroe without any advertisement or notice. Then, a lease for twenty years with a renewal clause for twenty more was let unto him subject to the dowage contract. Then the pole line contract to maintain a line of trolley poles 25 miles long upon the tow-path w'as given to him. Then the property w^as advertised for sale subject to these rights. The sale was made not by the Board but by an employe in the absence of every and any member of the Board, and then the deed was given which renewed the covenants of the dowage contract. Then the Commissioners leased him the Kankakee Feeder. Each one of the transactions was illegal. The dowage contract was a grant in perpetuity, wdthout com- petitive bidding, and illegal, and in the teeth of the statute. 83 The lease assumed to give a right of renewal wliieh was })eyond the power of the Commissioners and was illegal. The sale was conducted by a delegate or employe of the Com- missioners, who could not delegate their power and was illegal. The lease and sale were made expressly subject to the illegal perpetual contract. The covenant in the deed that the provisions of the void flowage contract shall still be performed is itself illegal. The lease of the feeder covered an integral part of the canal. And all were transacted with the purpose on the part of the grantee to defeat the express policy of the law to secure free, open and equal bidding, and to obtain special and exclusive advantages to the grantee. All were transacted for the purpose of evading the statute on the leasing of water-power, and for the purpose of maintaining a series of works inherently dangerous to the canal. All were so made as to enable the grantee to assign and escape responsibility. The illegality runs through all the contracts and all must fall to- gether. PUBLIC POLICY OF THE STATE AS TO 'THE CANAL AND CANAL LANDS. It is the policy of the State: — (1) To maintain the canal in its integrity and allow no part of it to be alienated. (2) To allow none of the canal lands, the bounty of the nation to be sold except after public advertisement, at public auction .to the highest bidder: — (3) To secure free, open and equal bidding at such sale. (4) To have that sale conducted by the sworn officer of the State, appointed for the purpose. (5) To allow no water-])ower, the x)roperty of the canal to be per- manently alienated or leased for more than 20 years. (6) To allow no such water-])ower to be leased even for 20 years except after public advertisement at public auction to the highest bidder. 84 (7) To secure free, open and e(|ual bidding at such letting of \vater-])o\ver. (8) To allow none of the canal lands to he leased for more than 20 years. (9) To allow no private grants in perpetuity of rights in the canal property. (10) To allow no private interests to encroach upon and imperil the canal. Each of these principles of public policy was violated by the contracts held by appellee. The candl lands, the gift of the nation to the State to aid in con- structing and maintaining the water way are a public trust of which the State is trustee. The restrictions in the canal laws were enacted to preserve this trust. The Commissioners as agents of the State, like the Roman Consuls of old, should take care that the State suffers no harm. In this instance they have first let the feeder go to decay, then contracted, leased and sold the canal property, not only against the interest of the State, but in disregard of the positive restric- tions of the statute. 1. CONTKACTS VIOLATING POLICY OF THE STATE AEE VOID GENERAL PRINCIPLES. These contracts are against public policy. The law upon this is well summarized in the following authorities : ^‘But if such contract bind the maker to do something op- posed to the public policy of the State or Nation, or conflicts with the wants, interests, or prevailing sentiment of the people, or our obligations to the world, or is repugnant to the morals of the times, it is void, how^ever solemnly the same may be made.” Greenhood on Public Policy, p. 1, Rule 11. ‘^We may take it as well settled that, in the law of contracts, the first purpose of the courts is to look to the welfare of the public; and if the enforcement of the agreement would be inimical to its interests, no relief could be granted to the party injured, and even though it might result beneficially to the party who made and violated the agreement.” Greenhood, p. 2. 85 ‘‘ Ml is tlio duty of all courts of justi(*o to kco}) their eye steadily u[)ou the interests of the public, even in tlie adminis- tration of communicative justice; and wJien they find an ac- tion is founded upon a claim injurious to the public, and which has a bad tendency, to give no countenance or assist- ance in fora civili/ Id., p. 2, citing Crawford v. Wick^ 18 Ohio St., 190, 20-1-. ‘‘The question of the validity of the contract does not de- pend upon the circumstance whether it can be shown that the public has in fact suffered any detriment, but whether the contract is, in its nature, such as might have been injurious to the public. It matters not that any particular contract is free from any taint of actual fraud, oppression, or corrup- tion. The law looks to the general tendency of such con- tracts.’^ Id., p. 5, citing IlolJoday v. Patterson^ 5 Ore., 177, 180; Richardson v. Crandall, 48 N. Y., 343. “And any contract made for the purpose of giving effect to any agreement within Rule II, (i. e., void), or given in consideration of the same, or of any contract so given or made, or directly having its origin therein, or based thereon, or growing immediately out of the same, although the maker thereof is ignorant of its illegal character, or there be em- braced therein legitimate indebtedness, is void, * * Id., p. 8. “It is immaterial that a contract appears on its face to be within Rule I (i. e., valid), if the circumstances surrounding tlie transaction will briug it within Rule II; or if the contract be only* made as a cover for a contract plainly within Rule II (i. e., void), the contract will be held void although sucli object may be capable of proof by parol evidence only.” Id., p. 113. “The general rule is that all agreements which have for their object anything which is repugnant to the general policy of the common law or contrary to the provisions of any statute, are void and will not be enforced. And so, again, a contract which, in its execution, contravenes the policy and spirit of a statute is equally void, as if made against its posi- tive provisions.” (ruenther v. Deivein, 11 la., 133. lAntracts between private parties are sustained as far as pos- 86 siblo; but this doeti'ine lias no aiiplication to tlie contracts of pub- lic*. officters. ‘‘Statutes delegating powers to imblic officers must be sti'ictly construed and all parties interested must look to the statute for the grant of power.” Dirdericli v. Hose, 2:^8 111., 610, at 615. So the liurden is on the ])arty who claims the benefit of the con- tract wdth a public officer to show its validity. There is no pre- sumption that it is valid. If authority for it cannot be found delegated by the statute, then the contract must fall. Dement v. RoJcher, 126 111., 174. In this respect the rule as to public contracts is precisely the reverse of what it is as to private contracts. (Ibid.) And in general it may be said that the rules as to invalidity of contracts ore applied with greater strictness to contracts by public officers tban to those by private individuals. So, while it may be the law that if a private individual with a power to lease for 10 years made a lease for 20 years, the lease would be sustained in equity for the 10 'years for wdiich he had the power, no such rule is -ap- plied to a contract by public officers ; and the court below expressly excluded this doctrine from any consideration. And this applies with peculiar force to grants, or corporate privileges, or franchises in public property. Jones V. Kline, 41 N. H., 238. State V. Garland, 7 Ired., 49. Ohio ex rel v. Board of Public Works, 36 Ohio St., 409. Ohio ex rel. v. Cin. Cent. R. Co., 37 Ohio St., 157. 2. THE COURTS WILL RESTRAIX THE PERFOEMAXCE OF CONTRACTS HOSTILE TO THE POLICY OF THE STATE. “Equity will not only refuse enforcement of any contract within Rule II (declaring such contracts void), but will re- strain a suit at law thereon, and will order its surrender and cancellation except when the invalidity thereof is apparent upon its face, or when such aid would encourage a breach of trust; and will restrain the execution of all contracts which are opposed to public policy when the consummation of their objects may be thereby prevented. * * Greenhood, p. 131. 87 Tills lias 1)0011 appliod and oiifoi'c'od hy tln^ SuprcniK; (joiirl of 1 lliiiois. Ill State of Illinois v. Delofield, 8 Paigo’s Pli. (N. Y.) 527, llio Court (Walworth, Cli.) had before it a suit eonoernin^- oaiial bonds issued by this State to raise money under the Aet of dan- uary 9, 188(), for the eonstruction of this very canal, it was a bill by the State of Illinois to enjoin 'a purcbaser who bad obtained possession of canal bonds (under a contract witli the agents of the State, who exceeded tbeir authority) from dealing with the bonds. The bonds bad been delivered by the agents who bad contracted with him for the sale of the interest bearing bonds on credit, for tbeir delivery in advance, and for deferred payments by bim in instalments wntbout interest on the deferred payments. The sale was held to violate the statute (1) because on credit and (2) because it amounted to a sale below par; and therefore to be void; and the State was held entitled to recover its property in bis bands, and to an injunction restraining bim from any fnr- tber dealings with the property wbicli was tlie subject of the con- tract. The Chancellor said: ‘‘It is said, however, that the State of Illinois has con- firmed the acts of the agents who made these sales; and that it is now too late to rescind the agreements as having been made without authority. But no officer or agent of the State bad any power to make or to authorize the making of such contracts originally; and of course none of them bad the l)ower to confirm them afterwards. For no person can confirm an authorized agreement, made by another, un- less be bad himself the power to autboilze the making of such an agreement. As the sovereign power of the State, by a Legislative act, bad prohibited any of its officers or agents from selling its stocks below tbeir ]);n‘ value, it follows, of course, that nothing short of a law of the State, proceeding from the same authority, can legalize such a transaction. “The contract for the delivery of the bonds being wholly un- authorized, and there having been no subsequent ratification by the legislative power of the State of Illinois, or by any offi- cer or agent who liad the iiower to ratify these illegal sales of the stocks, an injunction must l)e granted as praved for.’’ (pp. 541-2-8.) 88 'rii(‘ serpetual flow- age contract; that is, the lessee was to obtain what was left, bur- dened and encumbered by submergence under a contract. The court resorted to the void flowage contract as evidence to ascertain the purpose for which the lessee took the lease and found it to be his purpose to lease the ground for purj^oses of flowage. In other words, the court treated them as separate and independ- ent contracts for the purpose of determining their validity and treated them as if they weie a united and entire contract for pur- poses of interpretation. 94 5. A contract, bond or deed which provides, among other things, to do something forbidden by statute, is void in toto. ‘^Aiid (lifferenee was taken between a })on(l made void by statute and l)y eomnion law; foi' n})on the statute of 23 H., 6, if the sheriff will take a bond for a point against that law, and also for a due debt, tlie wliole bond is void; for the letter of the statute is so; for a statute is a strict law.” Norton v. Sinrmes, Hobart, Vic. ‘‘T have heard my Lord Hobart say upon this occasion that because the statute would make sure work and not leave it to exposition what points should be taken, therefore it was added that bonds taken in other form should be void. However, said he, the statute is like a tyrant, where he comes he makes all void; but the common law, like a nursing father, makes void only that part where the fault is and preserves the rest.” (Twisdex, J.) Maleverer v. Redshaiv, 1 Mod., 35. ^ ‘Where one of two considerations, or a distinct part of one consideration, is for any reason not capable of sustaining a contract, birt is not otherwise obnoxious to the law, the courts universally recognize the situation as a partial failure of con- sideration, and permit a pro tanto recovery. But ivhere one of tivo considerations, or a distinct part of one consideration, is unlawful, as being forbidden either by the statute or by common law, the prevailing view is that the partial illegality taints the entire transaction and the contract itself is vovd.’^ State V. Wilson, 73 Kan., 334. “If any part of the entire consideration for a promise or any part of an entire promise be illegal, whether by statute or common law, the whole contract is void. If there are provi- sions in a contract for compensation which is just, yet if those provisions are blended and confused with others which are forbidden, the whole contract is a unit and indivisible. That which is bad destroys that which is good and they perish to- crether. ^ ^ (1898) Critchfield v. Bermudez Paving Co., 174 111., 466, at 481, affirming 62 111. App., 221; following Henderson v. Palmer, 71 Ilk, 582 (mortgage to secure note in renewal of former note for fee for services in procuring discon- tinuance of prosecution.) In Clark v. Baker, 5 Mete., 452, the court said: “ ‘If the contract is entire, if it be one bargain, then it mat- ters not if there be one or many articles, and though each may Iiavo an appi’opriato pi'ic'C. In ilio ono casc^ IIk^ vcnidor rni^j^lit llavo 1)0011 nnwillin'^' to soil one portion without soiling the wliolo; in anotlior tlio buyer ini^lit not be willing to take a [)art unless be could liave tlie whole.’ ‘‘To tlie same effect is N orrington v. Wright, 115 TT. S., 188, and in Coos Bag Wagon Co. v. Crocker, 4 Fed., 577, it is said: ‘Wlietlier a contract is entire or severable depends upon the intention of the parties to be gleaned from all the facts and circumstances in the case.’ ” McMidlen v. Hoffman, 174 U. S., 639, is the case of an action on a partnership agreement for an accounting and a distribution of profits on a contract with the City of Oregon, obtained by a com- bination to prevent competition. It was “Held, that this contract was illegal, not only as tending to lessen competition, but also because the parties had com- mitted a fraud in combining their interests and concealing the same, and in submitting the different bids as if they were hona fide and that the court will not lend his assistance in any way towards carrying out the terms of an illegal contract, nor will it or any court enforce any alleged rights directly springing from such a contract.” Opinion by Mr. Justice Peckham, at p. 653. ‘‘The unity of the contract is not severed or its meaning or effect in any degree altered by putting part of it into writing and leaving the rest in parol. “Concluding as we do that this agreement between these ])arties is as a whole of an illegal nature and that the portion thereof which is reduced to writing cannot be separated from the balance of the agreement, the (]uestion then arises as to the result of such (‘onclusion upon the parties to the agree- ment. *********** “If the partnership agreement that' is contained in the writing above set forth is in truth but part of an entire agree- ment, which contains utterly illegal provisions, then this action cannot be maintained within any of the authorities.” Furtber, in quoting from McBlair v. Gihhs, 17 How., 232 : “ ‘It may be admitted that even a subsequent collateral contract, if made in aid and in furtherance of the execution of one infected with illegality partakes of its nature and is equally in violation of law. * * “The concurrent doctrine of the text books on the law of contracts is that if one of two considerations of a promise be void merely, the other will support a promise, but that if one of two considerations be unlawful, the promise is void. When, 96 however, for a legal eonsideration a party undertakes to do one or more acts, and some of them are unlawful, the contract is good for so much as is lawful, and void for the residue. When- ever the unlawful part of the contract can be separated from the rest it will be rejected, and the remainder established. But this cannot be done when one of two or more considera- tions is unlawful, whether the promise be to do one unlawful act or two or more acts, part of which are unlawful; because the whole consideration is the basis of the whole promise. The parts are inseperable.” (Citing text writers.) ‘‘Whilst a partial want or failure of consideration avoids a bill or note only pro tanto, illegality in respect to a part of the considera- tion avoids it in toto. The reason of this distinction is said to be founded, partly at least, on grounds of public policy, and partly on the technical notion that the security is entire, and cannot be apportioned; and it has been said with much force that tvhere parties have woven a net of fraud or wrong, it is no part of the duty of courts of justice to unravel the threads and separate the sound, from the unsound/^ Widoe V. Webb, 20 Ohio St., 435. But in the case at bar the trial court through inadvertence was taken by the over-acuteness and subtlety of the suggestion that it could prune away the void renewal clause from the lease, could separate the void flowage contract from the lease, could treat the void sale as valid, and then look into the void flowage contract to find a use and purpose to which to devote the tow-path, 90-foot strip, canal bank and riparian lands, viz., sidmiergence by a water- poiver dam. 6. A new contract connected ivith or growing out of an illegal transaction is itself also illegal. Commisisoners of Delmvare Co. v. Andrews, 18 Ohio St., 49 (1868). There the County Commissioners made an illegal subscription for bonds of the railroad and paid the subscription by means of County orders payable at a future date, and the County received the railroad bonds so subscribed for. The railroad company’s di- rectors diverted the funds so obtained from the purpose of con- struction and then gave their individual bonds to the County Com- missioners to insur.e the completion of the road by specified date before the County orders became due. Default was made on this 97 also, and tliei‘eiii)Oii the suit was on tlio individual bonds of the directors. The court held that these individual bonds w(n-(^ the outgrowth of the original transaction; that the original ordco's were void and the indemnifying bonds were also void. The court said : ‘^Moreover, as if this was intended to ratify the original transaction, the Commissioners retain the mortgage bonds that they received* for the orders.- ‘‘The money was paid on the orders after the delivery of the defendanCs bonds : The first order was paid on the day the first bond was given, and the orders after the date of the bond in suit. Hence it would seem that the bond was taken to keep alive and make effective the illegal orders, so that they might be available to the company for the accomplishment of the purposes for which the orders were issued. The bond was thus entered into and became a part of the transactions of the board of Commissioners in the unauthorized and illegal dis- position of the County credit and County money in aid of tlm railroad corporation. The whole transaction was clearly against the spirit and policy of the constitution and laws of the State. To sustain transactions like these would nullify the salutary ])rohibitions of the constitution and open wide the door to the very evils thereby sought to be obviated.” It will be noted that the indemnifying bonds were to operate for the protection of the County against the loss of the money ille- gally paid out; that is, the indemnifying bonds were for the bene- fit of the public, but this did not give them validity; they were ])art of the illegal transaction. The people who wrongfully got the public money might be liable directly for its return in an action for money had and received, but the indemnifying bond to indemnify the County for the illegal acts and payments of its Commissioners was void because it flowed from, and was a part of, the illegal transaction. So of a note given for a share of profits from a prohibited trans- action, though in the hands of a hona fide transferee for value without notice. Cough V. Pratt ^ 9 Md., 526. Bell v. Quinn, 2 Sandford’s Sup., 146. “Where a contract grows immediately out of, and is con- nected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it. And if the contract be, in fact. 98 only ('oniioctcHl with the illegal transaction, and growing im- nu‘(Iiatcly ()iit of it, thongli it he in fact a new contract, it is (Hjiially tainted by it.’’ Armst I'oHfi Toler, 11 WJieat., 208, at 278, opinion by iMarshall, C. J. (cited, followed and applied to a con- ti’act growing out of a wager in NesJi v. Monheimer, 20 111., 217), This is ])recisely the relation of the contract of lease to the flow- age contract. The lease was subsidiary to and an afterthought consequent upon the flowage contract. It grew out of the flowage contract. The lease was an afterthought to the flowage contract. This ap- pears from the testimony of Canal Commissioner Sackett sum- marized above as follows : On the same day that this flowage contract was made there was a lease made from the Commissioners to Griswold. The flowage contract had been under discussion and prac- tically agreed upon up to the time of the introduction of this lease. The lease was second or practically at the same meet- ing, hut it came in after the flowage contract had been debated, considered and practically decided on. It came as a result of a discussion relative to the rights re- cited in the river. Either the President of the Board or at- torney for the Board saying to Mr. Munroe that we did not consider we had any right or jurisdiction to give to the river. Mr. Munroe ’s position was that if we were correct in the as- sumption that we had no rights in the river that it would do no harm for us to allow them to be set forth, and perhaps might do them some good. So the testimony of Mr. McDonald on the subject is heretofore summarized as follows : Mr. Munroe first came to see me about acquiring this tract in the spring of 1904. He had a tentative proposition con- cerning the flou'age of it and possible leasing or buying it. I went with him and examined the property. He outlined in a general way what he proposed to do — damming the river, over- flowing the riparian tract, attaching the dam to the tow-path as a retaining wall for the pool to be formed, and flow the 90- foot strip. It was mentioned by at least one and probably more than one of the Commissioners or their attorney that the Commis- sioners had no power to confer a right to do these things that you suggest. Mr. IVIiiiiroo said that if the (/V)mrriissioiiers had nothing to give away tlie insertioM of what he asked for in the eoritract Avonld not cost them anything. The general subject of making the necessary contracts, leases, deeds, instruments securing these rights came up at every meeting of the Commissioners. 7. The peepetuat. elowage contkact and illegal kenewal I.EASE WERE DEVICES AND INSTRUMENTS WHICH WERE ADAPTED TO DE- FEAT AND WERE SUCCESSFUL IN DEFEATING FREE, OPEN AND COMPETI- TIVE BIDDING AT THE SALE. Contracts operating to defeat the State in this way are void. The effort of the court was to hold the contract, part good and part had — throw away the bad and save the good to the party seeking to profit at the expense of the State. The fiowage contract the court held void. The renewal clause in the lease the court held void. The lease itself was made subject to the fiowage contract and the sale was advertised to he subject both to the illegal floiuage contract and the lease ivitli the illegal provisions. The fiowage contract and lease were mentioned in the advertise- ment (Ex. 1, Abst., p. 258), and any prospective buyer was given notice of the fact that adverse rights existed in Griswold and that the same included both rights of fiowage and rights of lease. Of course nobody else bid. The lease brought only $500 rental, and the deed only $500 purchase money, while the perpetual fiowage contract brought $2,200 purchase money; and the pole line lease brought $750. This operated to cloud the title, to chill the bidding, to depress the value. They prevented free, equal, open, competitive bidding. All these contracts went to the same party, who became the final purchaser. The sale originally contemplated, advertised, post- poned, and then re-advertised and conducted by an irresponsible employe, was so conducted as to be in the end the sale contem- })lated in the beginning, and to secure such advantages to the pur- chaser as to preclude any competition. The several steps in the transaction were so related that it was impossible for any other ])arty to hid ‘‘on eipial terms” with that party in the bidding, im- ])ossible for the State to secure the benefit of such public competi- 100 tioii as tile policy ol the law reijuires. And these elements render all the (‘ontracts void. The naked legal title when encumbered by tbe Oowage contract, the o])tion of renewal in the lease, the possession of Griswold and his assigns and hedged in by the pole line contract for eight miles in one direction and seventeen in the other, was indeed of no avail to the Oommissioners and of no avail in the market. The lease itself for twenty years was unimportant to the lessee, except as an instrument to aid in ac(‘oni])lishing the illegal purpose of the flow- age contract. In Dement v. Hoick er^ 126 111., 176, the courts specifically held with reference to the letting of contracts by State officers for State pilnting as follows : “ ‘Letting by contract to the lowest responsible bidder’ necessarily implies equal opportunity to and freedom in all whose interests or inclinations might thus impel them to com- pete at the bidding. No one may be compelled to bid at such a letting, but there must be entire fairness and freedom in competition ; and no one can, within tbe meaning of the pro- visions of the constitution and statute quoted, claim to be the lowest bidder, where others, who otherwise would have bid, are, by an arbitrary arrangement to prevent competition, kept from bidding. * * * “Counsel for defendants in error, however, contend that inasmuch as these sections do not expressly declare that con- tracts made in violation of their provisions shall be void, and as the penalties which they declare are not on the making of such contracts, but on the persons doing the things prohibited, they cannot be resorted to for tbe purpose of establishing the invalidity of these contracts. It is, in considering this con- tention, pertinent to keep in mind the distinction between con- tracts where the contracting parties liave an inherent power to contract and contracts where, as here, there is no inherent power to contract, but the contract is purely by virtue of a spe- cial statutory authority. In the former instance the contract is presumed to be lawful, and it devolves upon those who claim its invalidity to show that it is within the statutory authority. It is, therefore, not upon these plaintiffs in error, in the first instance, to establish the invalidity of these contracts, but upon defendants in error to establish their validity— in doing n'hich, as ive have seen, an imdispensahle step is that they ivere the loivest responsible bidders. * * * “All of the authorities are in substantial accord that no one ean derive rights under a contract made for the purpose of 101 preventing competition in bidding. Ilaniilton v. Ilamilion, 2 Rich. Eq., 355; James v. Fulcrod, 5 Texas, 512; Dudley v. I At- tic, 2 Ohio, 504; Jones v. Caswell, 3 Johns. Gas., 29; Thompson V. Daviess, 13 id., 112 ; Gibbs v. Smith, 115 Mass., 592 ; 1 Story’s Eq. el 111 *., Sec. 293. And this applies with like force to public as to private contracts. ’ {Weld v. Lancaster, 50 Me., 453 ; Swan V. Chorpenning , 20 Cal., 182; Greenhood on Public Policy, Rule 175, p. 183.) It may sometimes be difficult to ascertain the mo- tives controlling in the formation of the partnership; but this affects only the question of fact in the particular case. ^‘An argument is sought to he drawn against the necessity of a strict observance of the requirement that the contract shall be let to the lowest responsible bidder, from the facts that the statute also requires that no contract shall be made without the written approval of the Governor; that maximum rates are fixed in the statute, and that the bidding is to be supervised by an expert printer, etc. ; and that, from the nature of the case, if the bidding was supervised by the expert, the amount bid was less than the maximum rate, and the contracts were approved by the Governor, the State should be concluded. But the statute merely directs these as successive steps in the execution of the contracts, and makes no provision that either or all shall he conclusive. Plainly, they are intended as dis- tinct and successive safeguards to protect the State against imposition and extortion. Where the provision of the statute is the essence of the thing required to be done, and by which jurisdiction to do it is obtained, it is held to be mandatory. Rex V. LocJcsdale, 1 Burr., 447 ; Marshall v. Langworthy , 6 Hill, 646; Sinker v. Kelly, 7 id., 9; People v. Schemerhorn, 19 Barb., 558. ‘‘Although the Commissioners may have assumed the con- tracts to be valid, since they were made, and done acts upon the faith of that assumption prejudicial to these defendants in error, if their legality be now denied, the question of the validity of the contracts is still open. ‘The State is never estopped, as an individual or private corporation may be, on the ground that the agent is working under an apparent au- thority which is not real — the conclusive presumption that his powers are known rendering such a consequence impossi- ble.’ Bishop on Contracts (enlarged ed.), Sec. 993, and au- thorities there cited.” So in Littler v. Jayne, 124 111., 123, the court sustained a hill for an injunction against action by public agents, leading to the payment of public money on illegal contracts and the illegality consisted in the letting of the public contract on a misleading ad- vertisement. The facts in that case are familiar to the court. 102 The alleged eoiitraet was for the eonstruction of bronze statues and the advertisement did not specify the kind of material to be used. The court said : “It was important that the material of which the statues were to be made should have been advertised, in order for intending bidders to be able intelligently to make their bids and proposals for the construction of the statues. It is ob- vious, as the proof shows, that the cost of the statues would be dependent upon the material of which they were composed, and would vary very greatly, according to the kind of ma- terial, and whether marble, jdaster, bronze, sheet iron, cast iron, cast zinc, etc. time limited for receiving and opening bids was September 10, 1885, at twelve o’clock M. The contract was actually let to Poulson & Eger September 11, 1885. How is it possible to regard the contract here as let in compliance with the statute requiring that all contracts for labor or ma- terials shall be let after advertising for bids for the same for thirty days, when the materials, the kind of which was of such vital consequence for the making of the contract in question, were not determined upon at the time of inserting the adver- tisement, and not until just before the opening of the bids and the letting of the contract? How could work and materials not known and determined upon be advertised and intelligently bid for? The bid of Poulson & Eger was the only one made for the statues. The contract price, the proof shows, was some $2,800 or $3,000 more than the reasonable value. How could the kind of the material, the character of the work, who was to furnish the models, as described in the contract, have been ascertained and settled upon except through private ne- gotiation ? “We regard this contract with Poulson & Eger for these statues as essentially a private contract made with them, and not as having been publicly let in compliance with the statute, but let contrary to its provisions, and we must hold the same, therefore, to be null and void.” *********** “It is said the Governor’s approval of the Commissioners’ vouchers is necessary for the drawing of any money there- under, that such power of approval is a sufficient protection for the taxpayer, and that the injunction asked for would be an improper interference with the duty of the executive in the exercise of such power of approval. If it were a case where a gross and palpable breach of lav7 was apparent, this power of approval might be a sufficient reliance against the making of any ])ayment under an illegal voucher of the Com- missioners. But in a case of such doubt as appears here, there having been a contrary determination by two other courts, io:5 the (lovei’iior iniglit tcike the view that thei-(i was a judicial (liiestioii involved, which might more pro[)erly he referred to the judicial department of the Government to settle, and so add his sanction to what had been certified to by the Commis- sioners nnder the responsibility of their oflicial duty.” * * * * ’ * ^^Tliis whole proceeding of the commissioners with respect to the contract in question we regard as one in misappropria- tion of the public money.’’ The lease itself was plainly made ‘‘for the purpose of preventing competition in bidding.” The property was first advertised for sale; then the sale was postponed; then the flowage contract and lease made; then the property was again advertised for sale, but subject to Griswold’s rights of flowage and lease. Of course, GrisAvold, and Griswold only appeared to bid. The lease was “for the purpose of preventing competition in bidding.” And ‘Cm one can derive rights under a contract made for the purpose of prevent- ing competition in bidding Therefore no one can derive rights under this lease. 8. The contracts were attempted evasions of the statutory PROHIBITIONS AGAINST THE SAFE OF THE NINETY-FOOT STRIP, AND AGAINST THE MAKING OF A EEASE OF EITHER I.AND OR WATER-POAVER FOR MORE THAN TWENTY YEARS. These contracts grew out of the eATision of these rest]*ictions. All such contracts are void. M unsell v. Temple, H Gilm., 98. There the Comity Commissioners sought to evade the statute which imposed the condition upon the licensing of a grocer that “the ap])licant shall j)ay into the (kmnty Treasury for the priA"- ilege granted a sum not exceeding $800 nor less than $25. * * *” The Commissioners first issued a license on credit to Parke, and Parke gave his note therefor. Afterwards the court authorized the transfer of this license to Munsell for $21.88 and ]\runsell gave his note for that amount and suit Avas brought upon the note. The court says: “As a general rule, where the undertaking upon which the plaintiff relies, was either upon an unlawful consideration, or to do an unlawful act, the contract is void; and this whether 104 the (‘()iiti-a(*t he illegal as l)e’m^ against the rules of tlie eorn- inon law, or the ex[)ress i)rovisions or genera! poliey of any ))arti(‘ulai' statute.” * -r # * * * ^ * * * * ‘Mt is a ])lain v^iolation of tlie express letter of the statute to issue a lieense on eredit, and the undertaking of Munsell to pay was eonsequently founded on a contract against the ex- press pi*o visions and the general policy of the statute, and was therefore void in law, and cannot he enforced.” So in Vilhuje of Dicifjlif v. Palmer, 74 111., 295, it was held that where a clerk of the Board of Trustees of an incorporated village contracted with the village to puhlish certain ordinances for $300 which was rescinded before any work was done under it and such officer then resigned his office, but the contract was never renewed after the acceptance of the resignation, it was held that he was not entitled to compensation for any ordinances he may have pub- lished afterward, as it wms done without authority. The court said : ‘‘The appellee, being himself a village officer, could make no contract with the trustees to do work for the corporation to he paid for out of the treasury and hence the alleged contract for printing the ordinances was absolutely void. It was a work of supererogation on the part of the trustees to attempt to rescind it. It had no binding force at all, and whatever was done by appellee under it was done without any authority from the village. “The money was, therefore, unlawfully obtained. Appellee had no right to it. He was entitled to no compensation what- ever from the village for anything he may have done under the alleged contract while he v»ms one of its officers.” *********** “Appellee has received money out of the village treasury under an illegal contract, and under snch circumstances as render it against the policy of the law for him to retain it.” The same rule was followed in very similar facts in MaKaly v. ^laifor, 3 Hun., 66. “Greenhood’s Public Policy” (Knle 470, p. 545) sums up these cases with many others in the following rule : “When the law imposes restrictions upon public officers any contract which groics oat of an evasion of such restrictions, or which, if enforced, would encourage such invasion, is void.” U).") i). Tlll<: (U)NSII)Ki{ATI()N WAS I N ADKA^UA riC. This is aIlc\i>AHi by tlio Iiironiuition thus: ^‘Snid ('onlrncls, (hA*(l., and leases were, and eaeh oi* them wais, enl(‘r(‘d into on inad(‘(|uat(; eonsideration.” (Ahst., ]>. l^b.) Tlie eonsiderations named are as follows : “Exliihit A,” Per[)etiial Flowaige Fontraet, $2,200. (Ahst., p. 29.) ‘‘Exhibit B,” l.ease of 90-foot Strip, Tow-})atli Bank and l\i])ar- ian Tract, $500. (Abst., p. 34.) “Exhibit 0,’’ Kankakee Feeder Lease, $150 per annum. (Abst., 1). 37.) “Exhil)it J,” Deed of the Riparian Tract, $500. (Abst., p. 46.) “Exhibit K,” Pole Line Lease, Robey St., Joliet, on the East, to the West limit of Morris, 25 miles of tow-path, $1,000. (Abst., p. 48.) These considerations are grossly inadequate. On the part of the defendants, against objection, the evidence of Charles A. Munroe was received : that he became identified with the project in the spring of 1904; that he accpiired 1,700 acres of land surrounding that location ; that he began negotiations with the Economy Light & Power Com])anv in April or May, 1906, resulting in a contract July 31, 1906, and a deed November 30, 1906, convey- ing the property to the Ecoiiomy Light & Power Clompany; and at the same time a trust deed was given by the Ec'onomy Light cC Power CAm])any to the Royal dh'ust (k)mi)any, trustees, to secure an issue of $3,000,000 of bonds, $2,000,000 of which have been sold; that the defendant has ])aid out $135,000 to contractors upon the work of erecting this dam, and that the total work will cost $900,000, exclusive of the land. The mortgage in (luestion also covers some other pro])erty at Joliet (Abst., i)p. 1611-1615). AVhile the State insists that this evidence was incompetent, irrelevant and immaterial, it being received in evidence, it suffi- ciently 'proves the inadecjuacy of the consideration i)aid to the State. The Flowage Contract, the Lease of the Ninety-foot Strip, Tow- J()() ])atli P)aiik, Ixipariaii Ti-act, and Pole-line Lease (i\, P> and K) were made on the same day, and for an aggregate eonsideration of $d,7()(). The deed followed for $^00. Aside from the Feeder l.ease, which was for deferred ])aynients of $ir)() per annum, the ('anal Commissioners received $4,200 for tliese per])etual riglits, tlie lease and the deed, and the right to maintain a j)ole line for conveyance of electricity over 25 miles of the tow-path. The land conveyed, we have seen, aggregated over 100 acres. The defendant refers to the land as the 16 acre tract. This is a description of -so much of the land as lies west of the feeder, and is described in the Canal Report as ‘^certain lots in the old town of Kankakee.” The Canal Report of 1900 put the valuation of the 16.82 acres at $25 per acre. (Canal Report, 1900, p. 42; A))st., p. .) At this price per acre, the 1,700 acres of land, which were the subject of the mortgage would he worth $42,500. If they were twice this sum per acre, the total land area would he worth $85,000, Avhich may he taken as the outside limit of their value. Assuming the defendant’s testimony to be correct that the total plant, in addition to this, will be worth $900,000, the value of tlie property aside from the value of the water power rights, vrould be less than $1,000,000. It is mortgaged for $3,000,000, and mortgages are usually placed on property for not more than half their value. If this property is worth $6,000,000, or even if it were mortgaged for the full value and is worth only $3,000,000, and the total investment aside from the rights obtained from the State is $985,000 — what is there to stand for the $2,015,000? There is the value of the rights obtained from the State, and the possible value of the other property at Joliet. (The defendant claimed to have sold $2,000,000 of these bonds. That the sale was colorable may be inferred here from the fact that the defendant in its suggestions filed here against the extension of time, stated that it was unable to finance the enterprise while this suit was pending.) It was for the defendant to show good faitli and adequacy of consideration here. It had peculiar knowledge of the amount 107 of pi* 0 [)orly otlicM- Ilian tliat at Drosdnn Ihn^lils (anliraccMl in this inorlgago, and its rcdative value. It is a (‘ir('nnisian('(i callin^^- for explanation and ])vo()f of i>’ood faith and adcMpiaey of ('onsid(;ra- tion, when ])ro})erty honght for $85, ()()(), and ui)on which inipi-ov(*- nients to cost $900,000 are planned, is made the subject of a iiioi't- gage for $8,000,000; and the fact that the defendant included in the mortgage 22 city lots in Joliet and its rights in the invalid renewals of the lease on Dam No. 1 — as to the real and pur])orted values of which the defendant had special and full knowledge — made it incumbent on the defendant, in showing adequacy of con- sideration, to show how much of the consideration for this mort- gage related to the Joliet and Dam No. 1 property. That the Joliet and Dam No. 1 property, the 22 city lots and the invalid lease with ten years to run at the time the mortgage was made, were worth $2,000,000 is so improbable as to call for proof from the defendant. Schumacher v. Bell, 104 111., 181. It constitutes one of those cases in which, in the language of Judge Sharswood, ^‘The houa fides of the vendee ought to shine clear as the sun.” Bastion v. Dougherty, 8 Phila. Kep., 80. The failure to furnisli such evidence raises the presumjition that such evidence if furnished would not liave been favorable to the defendant. Stock Exchauge v. Board of Trade, 190 111., 890, 407. xVn idea of the value of the water ])ower which is claimed by the Kconomy Light and Power (hmrpany under the instruments men- tioned, may be gathered from the following estimates: The available fall at the ])oint where the dam is under con- struction is from a minimum of 17 feet to a maximum of 281 feet, or an average of 224 feet. This clearly appears from the testimony of defendant’s cx])ert AVoermann (Abst., p. 1409) — ^^Low water level equals 00 feet,” ordinary pool level equals 77 feet, extreme high water ecpials 84 feet, and on ])age 1480 the extreme depth of the pool is given as 284 feet. Mr. Cooley said: ‘^It (the dam) has an elevation of 78 feet below Chicago datum. lOS ;iii(l nhoiil 221 feet a])ove the lower part of tlie river bed. (Abst., p. 878.) At Look port (Abst., p. 277) the liead is 18 feet. Figured at 16 leet, this fall witli a flow of 200, 000 eiibie feet per minute through tlie Sanitary (banal (the minimum legal how) will develop 9,090 gross, or 6,817.50 net horse power. With a flow of 600,000 cubic feet i)er minute (the maximum legal flow under ])resent condi- tions) 18,180 gross, or 15,665 net horse power. AVith 840,000 (mbic feet ])er minute (the maximum flow which will eventually prevail) 25,454 gross, or 19.091 net horse power. 55,000 foot-])ounds ])er minute (or 550 foot-pounds per second) constitutes a theoretical horse-power. The weight of a cubic foot of water is 62.5 ]munds. These facts are laid down in all the text books of physics and are well known to the court. 62.5 is contained in 550, just 8.8 times. Therefore 8.8 cubic feet of water falling one foot in one second will produce one horse-power. Therefore the number of horse-power in a given fall of water can be ascertained by multiplying the number of cubic feet of flow per second by the fall in feet and dividing the product by 8.8, the num- ber of cubic feet of water necessary to fall one foot to produce one horse-power. The net horse-power is figured at from 75 to 80 ])er cent, of the theoretical. As a compendium of universal knowledge on this subject we beg to refresh the memory of the court by the following: “Power is the rate at which work is done, and is expressed ])y the quotient of the work divided by the time in which it is done, or by units of work per second, per minuute, etc., as foot-pounds per second. The most common unit of power is the liorse-poicer, established by James Watt as the power of a strong London draught-horse to do work during a short interval, and used by him to measure the power of his steam- engines. This unit is 55,000 foot pounds per minute=550 foot-])oimds per second^^l, 980,000 foot-pounds i)er hour, (p, 429..) AVeight of water at different temperatures. The weight of water at maximum density, 59.1° is generally taken at the figure given by Eankine, 62.425 lbs. per cubic foot. Some authorities give as low as 62.579. The figure 62.5 commonly given is approximate. The higtiest authoritative figure is 62.425. At 62°F, the figures range from 62.291 to 62.560. ^riio figure 02. .‘>55 is geiiernliv ;i('('(‘i)le(l as tli(‘ most aeeiiraO*. (547.) POWKH OF A FALL OF WATFIl — KFFKU FNO Y. Tlui g'l’OSS |)0\V(‘|- of* a fall of water is tlie prodiu*! of the weight of water dis- eharged in a unit of time into the total head. i. r., the (Jiffer- enee of vertical elevation of the u|)i)er surface of the wat(n- at the points where tlie fall in (juestion begins and ends, 'idle term Miead’ used in connection with water-wheels is the dif- ference in height from the surface of the water in the wheel- pit to the surface in the pen-stock when the wheel is run- ning. If Q=cubic feet of water discharged ])er second, I )— weight of a cubic foot of waterrr=62.36 lbs. at 00°F., H==total head in feet; then l)QH=gross power in foot-pounds per second, and DQH-^550=.1134 OH=gross horse-power. Tf Q' is taken in cubic feet per minute, Q'Hxb2.36 H.P^ .00189 Q'H. 33,000 A water-wheel or motor of any kind cannot utilize the whole of the head H, since there are losses of head at both the en- trance to and the exit from the wheel. There are also losses of energv^ due to friction of the water in its passage through the wheel. The ratio of the power develo])ed by the wheel to the gross power of the fall is the efficiencv of the wheel. ' ' Q'H For 75% efficiency, net horse-])ower .00142 Q'H=-- ” (]r '00 588). (Kent’s ‘^Mechanical Fngineer’s Pocket-Book.”) Similar definitions may be found in any standard work on the subject. That the court will take judicial notice of such physical facts of nature and physical science as the weight of a cubic foot of water, and the universal standard definition of a horsei)ower a])pears from flie cases on judicial notice cited elsewhere in this brief. In particular in Hauhoni v. People’s Ice Co. (Minn.), 84 N. AY., 641-3 (1900), the Minnesota Supreme Court had to deal with u ])roceeding to restrain the cutting of ice from White Bear Lake as an unlawful depletion of the lake. The plaintiff’s right was no siislaiii(‘(l nTid ilio jiidginorit (‘oiitra was reversed. Tlie court in dealing witli the suggestion that tiie loss was trifling, said: '‘Taking judicial notic'e that a cubic foot of water weighs, in i-onnd nninhers, 02.] pounds, and that water expands one- (deventh in freezing, a conp)ntation sliows that 75,000 tons of i(‘e, when l ediK'ed to water, would amount to about one-cinarter of an inch, when spi'ead over the entire area of the lake. In the 12 years, this would amount to three inches. So smalf an amount of water was considered trifling, and not likely to affect i)laintiff’s property. This computation, however, does not take into account the amount of evaporation caused by removing the ice, and thus exposing the water to the' air.” Sanhorn v. People’s lee Co., 84 N. W. Eep., 643. It sjiecifically a])pears in the evidence that undeveloped horse- ])ower is being leased by the Canal Commissioners at the time these leases were made to this same defendant, at from $10.00 to $12.00 per horsepower. (Evidence of McDonald, Abst., pp. 277-278.) At this figure, applied to the maximum flow, the property is worth $3,772,750. If from this, the $985,000 of their investment is deducted, there is left $2,787,750. We sought to get from Mr. McDonald the information as to the value of the Joliet plant, and were toU by him that it was “in excess of half a million dollars” (Abst., p. 280). If, for large measure, the $787,750 were set apart for this pur- l)ose, there would be left $2,000,000 of value shown, in the rights obtained from the State. An even simpler statement is that of McDonald (Abst., p. 277) that 27,000 cubic feet of water per minute at an 18 feet head, were leased for $10,000 per annum. At the same rate, and same head, practically the minimum at the proposed dam, 270,000 cubic feet per minute, are worth $100,000 per annum, and 300,000 cubic feet per minute (the amount of the Sanitary District contribution) are worth $111,111.00, or 5% of $2,222,222.00. Taking the fall at 22.5 feet and the how at 500,000 feet per minute, or the flow would be 8,333 feet ])er second, the number of gross horsepower would l)e 21,306.70, and the net horsepower 15,1)71).!)^^ wlii('li at $1- |)(M‘ aniiuDi, 11i(‘ i-at(‘ paid to tli(‘ (‘anal (\)ininissi()n(‘rs For other povv(‘r is woi'lli $11)1, 75!). lO. Suhli’aet- iiig- from this the ammal 5% interest eliai‘i»e on $!)85,000, ilio eost of the work, we have in round nnnihers $144, ()()() a year left, which is 5% on $1^,880, 000. This is tlie fair (aipitalized valuer of the al- leged franchise of maintaining the dam, and using the water already turned into the river by the State through the Sanitary District Channel. And for this they gave $3,700.00. S.uch inadequacy of consideration is ground for declaring the contracts void. Macoupin Co. v. The People, 58 111., 191. Beall V. Dingman, 227 111., 295. And especially when there is any element of illegality in the contracts. Henderson v. Pahver, 71 111., 579. VIII. THE DECREE ENTERED BY THE COURT DOES NOT CONFORM TO THE OPIN- ION WHICH THE COURT DELIVERED. 1. The decree is without prejudice to future proceedings against the lease. Ex. B. (Abst., pp. 34, 35). The same infirmities which made the lease ^‘Exhibit illegal and subject to future attack, viz., the clause extending its life beyond twenty years, the illegal use of canal property, the ab- sence of authority in the Commissioners and the evasion of the restrictions in the statutes, — all these are found in the Flo wage (contract, ^‘Exhibit A,’^ the Feeder Lease, ^‘Exhibit C,” and most of them in the Pole Line Lease. It is an error to single out this lease and save it for some future attack but protect all the others against such attack. 2. It is an error in the application of the theory of chancery proceedings for the court to find the necessity for saving out the lease for future attack and not itself go on and administer complete relief. The Court during the trial and argument ex[)ressly held the Flowage (k)ntra('t itself void as a perpetuity. (Abst., p. 1718.) It is iiH'onsistent with sueh holding to dismiss the bill. The eoui't erred in not treating the flowage contract and the reu(‘wal (haiise in the lease in the same wuy. The court held the flowage contract void. The language of the (‘ourt was as follows: ‘A\s to the contract itself, there being no limitation of time, it seems to me that it is an attempt on the part of the Commis- sioners to grant a right in perpetuity to Griswold and his as- signs to overflow the land; and the grant of such a right in ])er})etuity is equivalent to the sale of an interest in the land, the sale of tlie easement is beyond the power of the Commis- sioners because they could not make any sale at all of the 90- t'oot strip.” The bill, by paragraphs VIII, IX and X, heretofore specifically (]uoted, and stated the facts sustaining the charge that the flowmge contract was void. (See the quotations from these allegations of the bill, supra.) The bill prayed for an injunction against the erection of the dam, as authorized by the void contract, and for general relief. The prayer for general relief was a sufficient basis for a decree upholding those averments of the bill and adjudicating the con- tract to be void. The principle is well settled that such relief as the complainant is entitled to will be granted nnder the prayer for general relief, where the allegations and proofs establish a case for such relief. Stanley v. Valentine, 79 111., 544; Gibbs v. Davies, 168 111., 205, at 211; Penn v. Vogler, 182 111., 76, at 107-8; Hopkins v. Snedaker, 71 111., 499; Walker v. Converse, 148 111., 622. In the three cases first above cited, viz., those in the 79th, 168th and 182d 111., it was held error that the court refused to grant re- lief to the complainant, made out a case conforming to the allega- tions of the bill, although no specific prayer for that relief was contained in the bill ; the prayer for general relief being held suf- ficient. In Stanley v. Valentine, 79 111., 544, at 546, the court said: ‘^It is true, there is no specific prayer that it be canceled as to lior, but the bill (‘ontains the ^(^iiural pcayer I'oi* r(*li(;r. Xo rule of eluuieeiy ])ractice is more familiar than that otlier than the specific relief prayed will be granted under the general prayer, when consistent with the facts stated in the bill. Now, such relief in this case is perfectly consistent witii and Is not repugnant to or variant from the facts alleged and proved, and we presume no one would say the prayer would be defective had it been specificially made in this bill. It then follows that it was error in the court below not to have retained the bill, and granted at least that relief. In Gihhs v. Davies, 168 111., 211, the court said : ‘‘The rule is, where a bill contains a prayer for special re- lief and also a prayer for general relief, the complainant may he denied a decree for the relief specificially prayed for, and, under the general prayer, be granted such relief as he may he found entitled to have under the allegations of fact made in the bill and the proof in support thereof. {Bremer v. Canal S Dock Co., 127 111., 464; Hopkins v. Snedakcr, 71 id., 449; Vansant v. Allniou, 23 id., 26; Stanlei/ v. Valentine, 79 id., 544.)” In Cook V. Martyn, 2 Atkyns, 2, Lord Hardwicke said : ‘'Praying general relief is sufficient, though the plaintiff should not be more specific in the prayer of the bill; and Mr, Kobins, a very eminent counsel, used to say general relief was the best prayer next to the Lordds prayer.’’^ The same doctrine a})])lies to the action of the court in not granting the complainant relief as to the option clause for a re- newal of the 20-years lease. The court distinctly held this ])rovision of the lease void. The opinion of the court on this was as follows: “Now as to the effect of the dealings with the Canal Com- missioners. AVhile it may be i)remature to pass judgment on the validity of the option clause in the lease, yet in view of the thorough argument of tlie question I cannot refrain from expressing an opinion that I cannot see any basis in the law for that option clause. * * * jf that option clause be void, and as I said the court is of the opinion that it is void, no rights could be acquired under it, and after the end of twenty years, so far as the rights of the tenant depend upon the clause in the lease, if any attempt should be macle to carry them out, the State would have its remedy, and to guard against any possibility the other way, that right may be preserved in the decree.” The final decree simply dismissed the bill without prejudice to !U tlio of tlio State to l)ri]ig- anotliei* lawsuit to o})tain an adjudi- (‘atiori tliat the renewal ('lanse was void. 'hliis was error. I'](jnity does not favor a innltiihieity of suits, but seeks to avoid siK'li innlti[)lieity. The parties being before tlie court, and the issue as to tlie validit}^ of this i)rovision being clearly raised, the (‘onrt should have granted the relief. The eases above cited as to the S('ope and value of tite prayer for general relief are strictly ap[)Iicable. 4r. The decree dismissing the bill on tlie merits is an adjudica- tion against the state on all points and unless reversed is liable' to lie pleaded as if it were a bar to any future proceeding. The court while holding the flowage contract and option to renew the lease both void, made provisions inconsistent thereivith, and mconsistent with each other in the decree. This was error. As to the option to renew the lease for twenty years, the decree dismissed the bill ‘'without prejudice, however, to the right of the State of Illinois to hereafter claim in any future proceeding that the provisions of the lease (in said information mentioned and made Exhibit B thereof) made by the Canal Commissioners of Illi- nois to Harold F. Griswold under date of September second, 1904, relating to the making of a renewal at the expiration of the term of said lease are void and of no effect.’^ As to the flowage con- tract the decree simply dismissed the bill. The bill by suitable averments showed the invalidity of the flowage contract and prayed that it be so decreed. A decree dismissing the bill on the merits is an adjudication against the State on this point as well as all others. Under the doctrine of res judicata the decree deter- mines and concludes a question involving in the issues of the con- troversy whether the court in its judgment passed specifically on that particular question or not. Union Pacific Ry. Co. v. C. B. I. S P. By. Co., 164 111., 88, and cases cited. AVe maintain that the decree is erroneous in not expressly de- creeing the flowage contract and option to renew void, just as the 115 court held tlieiu to be void in tlie opinion. An affirmurK^e ot this decree would expose tlie state to tlio adverse contention that as to the fiowa^e contract, the issues of its validity have become res judicata in favor of the defendant. And we do not see how the State can avoid that contention. It has frequently been held that the opinion of the court deter- mines nothing but only the decree, and the opinion of the court that the contracts were void does not override or cure the errors in the decrees dismissing the bill which alleged that they were void. The flowage contract and the option to renew the lease should have been treated in the same way. Both were void; both were attached and stated to be void by the bill ; both were held void by the opinion of the court below. Both should have been decreed void by the decree. But the decree is wholly silent as to one and ‘‘without prejudice’^ as to the other. It will be forcibly contended contra in some future proceeding that the “without prejudice” clause as to the renewal provision shows that there is no such saving clause as to the flowage con- tract; and tlie familiar rule of construction that “ expressio unhis exciusio alterhis est” will be invoked. A reversal of this error is necessary to protect the State. Both should have been treated alike. Both should have been decreed void. If the “without prejudice” clause was proper as to the one, then it is proper as to the other. 5. The decree presents the same inconsistencies as to the Kan- hahee Feeder lease. That contains a renewal provision in similar but even stronger terms, viz: 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 aj)praisal, to be made by three disinterested appraisers, to be ajipointed by the Governor, and the rent fixed by such appraisal shall be suliject to the approval of the Canal Com- missioners or other proper officers of the State at such time hav- ing charge of the Canal property. IK) It was manifest error for the eonrt to hold one void and not the other, — to dismiss without ])rejiidi(*e as to tlie one and not as to the other. DIVISION TWO DIVISION TWO. THE STATE OF ILLINOIS OWNS THE WATEKS OF THE DES PLAINES RIVER, THE BED OF THE DES PLAINES RIVER, AND SOME ADJOINING LAND ON EACH SIDE THEREOF, IN SECTION 25, TOWN 34, RANGE 8, AT THE SITE OF THE PROPOSED POWER-HOUSE OF THE DEFENDANT, THE ECONOMY LIGHT AND POWER COMPANY. I. The Act of 1839 (February 26) Makes the Meander Line the Boundary of the Lands at the Site of the Dam and Keserves THE Bed of the Kiver to the State. It Has Never Been Be- PEiALED. That section 25 is a canal section, and was not disposed of by the State until after February 28, 1839. The Economy Light and Power Company, the defendant, pro- poses to construct a dam and power-house across the Des Plaines River in the southeast quarter of Section number twenty-five (25), in Township number thirty-four (34) North, in Range number eight (8), East of the Third Principal Meridian, in Grundy Coun- ty, Illinois, and at the time of the filing of the bill in this case had actually commenced the construction of the same. One of our con- tentions is that the defendant does not own the premises on which it proposes to construct this dam, but that the title to the same is in the State of Illinois. Said Section number twenty-five is one of the sections of land ceded by the government of the United States to the State of Illinois, pursuant to the Act of Congress, for the purpose of aiding in the construction of the Illinois and Michigan Canal. The grant of land by the General Government to the State of Illinois was carried out by the selection of the odd-numbered sections, being a strip ten miles wide throughout the length of the canal, the same being five miles on each side of the canal. The Des Plaines River was meandered by the General Government. Proof of that fact is clearly made in the record. 118 HI HA H I AN LA N I )S liOU N I )A H Y (iE N ERA L RULE. (‘oimiioii law rule is that a |)ur(*liaser of lands a})iitting upon a river takes fo the eenter tliread of the stream of the river, and this notwithstanding tlie faet that the river has been meandered by government survey; but this rule is not universal, Imt is modified as follows. First— If the (juantity of land outside of the meander line, or between the meander line and the bed of the river, is so much that vrhen compared with the volume of land within the meander line as to ('rente tlie belief either that tlie intention was to reserve the bed of th.e I'ivei', or that fraud or mistake has been made, then and under those circumstances the purchaser of the fractional section or quarter section would not take to the thread of the stream, but would only take to the meander line. Second — If the Government in its survey of this meander line erected monuments to establish the meander line, or if the Gov- ernment in making the survey of the meander line platted the sec- tion or quarter section so as clearly to show the meander line upon its plat, recorded in the Land Office, then and under those condi- tions, the purchaser of the fractional (|uarter section would only take to the meander line. This doctrine is clearly established in the case of Hovck v. Yates, 82 111., 179, the same doctrine is main- tained in the case of Canal Trustees v. Haven, 5 Gilman, 548; also 7 Wallace (IT. S.), 272, R. R. Co. v. Sclmrmeier. The amount of land in the bed outside the meander here (S. E. I Sec. 25, T. 34, K. 8) is 45.28 acres out of 160, sufficient in itself, under the general rule, to indicate that it was not intended to be conveyed. (The acreages given on the Government plat of the southeast quarter are 94.41 plus 20.31, i. e., 114.72, which, deducted from 160, leaves a shortage of 45.28 acres occupied by the river bed, or more than a fourth of the whole. The quarter sections icere platted and sold as “Fractional” quarter sections. The only thing to make them “Fractional” is the deduction of the area of the river beds.) ILT.INOIS CANAL LANDS liOUNDAKY' STAI'LTOKY Wo admit tliiit tlie ])r()()fs in tiiis ('aso, wliatc^vor llio j'oal Tact may liave been, do not show that monuments wei'o erected as above suggested, or tliat tlie plat made by tlie General (lovernrnent and recorded in the Land Office clearly delineated tlie meander line by name as distinguished from tlie margin of the stream, in facd, the meander line is there represented hy the maryinal line itself; but the Legislature of the State of Illinois, liy its Act of February 26, 1839, entitled ^^An Act to Amend the Several Acts in Relation to the Illinois and Michigan Canal,” approved and in force February 26, 1839, among other things provides as follows : Section 2, Paragraph 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 line of those surveys, and not by the stream.” We call your Llonors’ attention to the title of this Act. It pur- ])orts to be an act to amend the several laws in relation to the Illi- nois and Michigan Canal. In its character it is a general law amendatory of all the laws pertaining to the Illinois and Michigan Canal ; and section 2 of said Act from which we have quoted is en- titled ‘‘Condition of Sales — Proviso,” so that here we have the principal 'and controlling Act of the Legislature of Illinois con- cerning the sale of these canal lands.' That the Legislature had the right and power to say what part or portion of said lands should be sold, we take it, will not be questioned. In the exercise of that power it has ex])ressly limited tbe amount of canal lands that shall be sold in fractional (puirter sections through which a stream or river passes, which stream or river had been meandered by the General Government. The ])roofs in this record show clearly that the bed of tlie stream of the Des Plaines River and some land on each side thereof was outside of the meander line, and was therefore expressly reserved from sale by the Act of the Legislature above (luoted. In other words, the purchaser of these quarter sec- tions was limited in what he took to that ])ortion of the quarter section within the meander line. (By “outside the meander line” is meant river-irard^’ from the line; and by “inside the meander line” is meant land-ward^ ^ from the line.) 120 \V(‘ I’ospcH^triily siihniit that this Act of the Legislature not only takes the place of the monuments or recorded map tliat would goveiai under the eoniinoii law rule, ))ut that it is even stronger than the common laic rule and removes any question of doubt about the res(‘rvation to the State of that portion of these canal lands lying outside of the meander line in a (piarter section through which ran a i*iver that had been meandered. The only ivivers to which the Act coukLapply are the Illinois, the Kankakee and the Des Plaines, and semble the (diicago liiver. Unless something has been done to undo that statute, we think it follows with absolute certaintly that the State owns the bed of the river and that portion of the lands between the bed of the river and the meander line, in the southeast quarter of said Section number 25, which is the site of the proposed dam and power-house of the defendant company. The provision is nugatory unless these rivers are meandered. Defendant relies upon an Act of the Legislature of Illinois, passed Uebrnary 21, 18-t3. found in the laws of 1843, at page 54, en- titled ^‘An Act to provide for the completion of the Illinois and Micjiigan Canal and for the payment of the canal debt,” approved and in force February 21, 1843. This was an Act of the Legislature to enable the State of Illinois to borrow $1,600,000 to be used for the completion of the Canal. It will be remembered that prior to the passage of this Act the work of constructing the Illinois and Michigan Canal had been begun and some money had been bor- rowed by the State for the purpose of constructing this canal, but that the work had stopped for the want of funds to prose- cute it, and a proposition was made to the State by persons who had already loaned money to the State for the construction of this canal to furnish $1,600,000 additional fund, which, we believe, was then thought to be sufficient to coinplete the canal, although as it afterwards developed, it wms not nearly enough. An examination of this act of 1843 will demonstrate clearly that it was not a general laic, as was the Act of 1839, but was a special Act, which in effect was nothing more or less than giving a mort- gage on the canal lands for the pa^mient of the money the State was then about to borrow. There is nothing in this Act of 1843 121 that expressly repeals tli(‘ A('t of IT it (l()(‘s i-(;p(‘al lli(‘. A(*t of 1831), it Is a repeal by iinplic-ation. 33iis court has had the (piestion of repeals !)y iinplication before it, we think, at least fifty times, and has uniformly held that repeals by implication are not favored. That proposition has been stated by this court very many times and in all the varied forms of expression that would occur to the court as they were being considered, and the rule as adopted by this court is, that statutes will be construed so as to avoid the repeals by implication of one act by a subsequent act, if such repeal can be avoided by any reasonable hypothesis ; in other words, if by any reasonable construction the two statutes can each remain in force, that construction will be adopted, rather than to construe that the subsequent statute will repeal the former by im- plication. We have cited in our brief a large number of cases wherein the proposition has been considered by this court, and in all of them the proposition above suggested has been maintained, and in many of them the very strongest language is used by the court; for instance, in 99 111., 439, Cit^ of East St. Louis v. Max- ivell, this court uses this language: — ‘‘A re])eal of an existing law, by implication, is not favored, and it is a familiar rule, in the con- struction of statutes, that the repugnance between statutes must be so clear and plain that they cannot be reconciled to justify a resort to this doctrine,’’ and cites Bruce v. Schuyler, 4 Gilman, 221; Hume v. Gossett, 43 111., 297; and in People v. Murphy, 202 111., 496, this court used the following language: ‘‘If the fatter Act can be construed as a modification or exception to the earlier one, that course is to be followed and both acts regarded as sub- stituting enactments. The repeal by implication of a statute by a subsequent enactment will not be decreed if it can be avoided hy any reasonable hypothesis.’’^ Also in Volume 23, page 489, of the American and English En- cyclopedia of Law, First Edition, we find the following language : “I\e])eals by imi)lication are not favored, and will not be de- creed unless it is manifest that the Legislature so intended. As laws are presumed to be passed with delil)eration and with full knowledge of existing laws on the subject, it is but reason- able to conclude that in passing a statute it was not intended to interfere with or abrogate any former law relating to the same matter, unless the re])ugnancy between the two is not 1 only ii rc'c'oiici lal)Ie, hut also oknir and (^onvinoing’, and follow- ing' iHH'ossai'ily from the language used, unless tlie later act fnlly embraces the snl)j(;(‘t mattei* of the earlier, or unless the reason for the eai'liei* a(*t is beyond ])eradventure removed. Hence evei'y effoit must l)e used to make all acts stand, and if by any reasonable construction tliey (‘an be reconciled, the latei' a(‘t will not o})erate as a re])eal of the earlier. ‘Mt is freiiuently found that the conflict between two. statutes is apparc^nt only as their objects are different, and when the. language of each is restricted to its own object they run in ))arallel lines without meeting; or the later act can he con- strued as a modification of or exception to the earlier one, thus avoiding all conflict between the two.” 'The Act of 1843, Section 8, provides: ^‘The said Board of Trustees of the Illinois and Michigan Canal, when duly appointed and elected, * * * so far as not inconipatihle with this Act, shall possess all the powers and ])erform all the duties conferred upon the Board of Commis- sioners of Illinois and Micliigan Canal by the Act entitled C\n Act for the construMion of the Illinois and Michigan Canal,’ apx)roved January 9, 183(1, and the Acts supplemenfary and amendafory thereto.” Tlie Act of 1839 being amendatory of all lav;s pertaining to the Illinois and Michigan Canal, is necessarily amendatory of the Act of 1836. Under the Act of 1836 there were Canal Commissioners of the Illinois and Michigan Canal. By the Act of 1839 they were limited in their sales of these canal lands in sections through which there ran a river that had been meandered. Their duties under the Act of 1839 and all previous Acts as amended, as affecting the sale of these fractional quarter sections through which ran a meandered river, limited them to the sale of that portion of said quarter section within the meandered line. Not only does the Act of 1843 fail to affirmatively repeal the Act of 1839, as we contend, but Section 8 of said Act of 1843, as above (pioted, appears to affirmatively limit the power of the trus- tees appointed by the Act of 1843, with reference to the sale of these lands, to the power existing prior to the Act of 1843 in the Canal Commissioners. Section 10 of the Act of 1843, said Act being found in the Laws of 1843, page 54, is the particular section under which it is claimed that the repeal of the Act of 1839 is effected, and the lands in these fractional (luartcr sections tlironi»-li wliic'.li a incan(l(‘r(Ml riv(n' ran, })assc(l to the (‘anal trustees, and would be sold l)y them in the sah^ of the fractional (Quarter sections. l^\)r (convenience of tine court, we now (|uote said Section 10, as folloms : “For the purpose of placing in the hands of trustees full and aiin])le security for the payment of said loan authorized by this act, and the interest thereon, as well as for securing a preference in the payment of the canal bonds and other evi- dences of indebtedness issued by this State for the y)urpose of aiding in the construction of the Illinois and Michigan Canal as may be owned by the subscribers to the said loan, the State does hereby irrevocably grant to the said Board of Trus- tees of the Illinois and Michigan Canal the heel of the said Illi- nois and Michigan Canal, and the land over which the samc^ passes, including the banks, margins, towpaths, feeders, basins, right of way, locks, dams, water power structures, stone exca- vated and stone and materials quarried, purchased, or col- lected for its construction; and all of the property, right, title and interest of the State of, in and to the said canal, with all the hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and also all of the remaining lands and lots belonging to the said canal f unds, or which hereaftei* 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 sit- uated; the said Board of Trustees to have, hold, possess and enjoy the same as fully and as absolutely in all respects, as the State now can or hereafter could do, for the uses, ]mrposes and trusts hereinafter mentioned.” * * * (Here follows some reservations unimportant in the construction of this section.) AVe call close attention to this language used in said Section 10. Referring to the lands other than that occupied by the canal itself, it says, “Also all the remaining lands and lots belonging to said canal funds, etc.” We respectfully suggest that if the lands ceded by the General Government to the State of Illinois to aid in the construction of this canal is to come under the head of the word ^Crinal fund,” as used in said Section 10, then we also respectfully suggest that the Legislature by the Act of 1839 removed the bed of meandered rivers from this canal fund,” and also that portion of fractional quarter sections through which a meandered stream ran, lying without the meandered line, or between the meander line and the bed of the river, so that in 1843, at the time of the })assage of this Act enabling the State to borrow this money, the land outside of the meander line in these fractional quarter sec- tions, tlirougli wlncli ran a meandered stream, liad been taken out of the ‘‘canal fund” and would not be placed back into that fund by inii)lication. Jt certainly would require the affirmative expres- sion of the Legislature to undo the Act of 1839 in order to reinvest the Canal Commissioners, or Canal Trustees, as they are called in the Act of 1843, to make sale of that portion of these lands that have been thus expressly reserved. The building of the Illinois and Michigan Canal was under- taken by the State of Illinois. It was a matter of great value to the lands of the State, and particularly those within ready reach of the line of the canal. The Legislature had to determine the length, breadth and depth of this canal; it had to provide tow-paths and feeders, it had to fix grades, it had to provide for all of the conditions of a successful canal or the whole enterprise would be a failure. With the canal ditch dug, the tow-path constructed, the feeders provided, and all and everything done, then without a sup- ply of water for it, the whole enterprise would be a failure. What more natural, under these conditions, than that the State would undertake to preserve the waters of the State, or that portion of waters adjacent to the line of the canal, for the use of the State, for the supply of water for the canal ? It did protect that supply of water by the Act of 1839, wherein it provides that the bed of the streams and all of the land outside of the meander line in these fractional quarter sections through which meandered streams passed, should not be sold, but should be reserved to the State. Can a statute so important as that to the very life of the canal be repealed by implication, where there is not in any language in the two Acts of 1839 and 1843, that measure of repugnance that nec- essarily makes the one repeal the other. This statute of 1839 was passed at the very time when the State changed its policy from that of the “Beep Cut” to be fed solely from Lake Michigan, to the “ Shalloiv Cut” to be fed from the rivers. (See summary of Canal History herein.) If the language of Section 10 of the Act of 1843 is to be given the force contended for by counsel for defendant, then the Trus- tees of the Illinois and Michigan Canal would have had the right and tlio power to sell tlie oanal itself to i)ay this debt, yet we v(ni- tnre the statement that snob an antliority was not only not eon- templated by the Legislature, but that the courts would never eonstrne this grant to mean any siicli think as tliat. The State was trying to get a canal and it mortgaged its securities to pay for its construction by this Act of 1843, but we respectfully submit that the sale of the canal itself or the sale of that which had been expressly reserved by the State to enable the canal to be operative, namely, the supply of water for it, did not pass to the Canal Trus- tees with power of alienation. The bed of the stream passed in- deed as a part of the canal and came back as part of the canal. By Section 13 of the Act of 1843, it is provided as follows : ^^The said Board of Trustees, when appointed, are hereby authorized to take possession of the said canal, lands, prop- erty and assets, granted to 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 ca- pacity or materially changiug its present location, having due regard to economy, permanency of the work, and an adequate supply of ivater at all seasons.’^ This is another expressed manifestation of the purpose of the Legislature to preserve to the State its water supply. The Act of 1839 provides many benefits for the State of Illinois and for the lands adjacent to the canal. These provisions of the Act of 1839 were as beneficial and helpful to the lands adjacent thereto after the passage of the Act of 1843, as they were before the passage of that act. In other words, the benefits of the pro- visions of the Act of 1839 are continuing and are not in any way contravened by the Act of 1843. To illustrate. Section 6 of the Act of 1839, briefly stated, provides security to the State against contractors. Section 13 of said Act protects the State in the case of a failure or abandonment of a contract by contractors. Section 17 of said Act provides safeguards to the State in respect to the matters therein mentioned. Section 21 of said Act is a safeguard to the State in letting contracts: — ^Tlie following subsections of Section 2, namely, subsection 1, subsection 2, subsection 4, subsec- tion 5, subsection 6, subsection 7, subsection 8, subsection 9, sub-^ section 10, subsection 12, all contain provisions safeguarding the interests of tlie State. If tlie eontention of eoiinsel is correct that the A(*t of 184.‘) repeals the Act of 1839, tlien all of tliese reserva- tions foi- the l)enefit of the State were destroyed. Clearly, we submit, the policy of the State, witli reference to its waters through tliese canal lands, was determined by the Act of 1839. The ])olicy was to preserve to the State for the benefit of all tlie jieople, tlie beds of these streams of water, to the end that the supply of water should not in any way be cut off or interfered with, and the canal itself thus rendered a failure. The Act of 1843 provides for the borrowing of money and pledg- ing the property of the State for its payment and was not incon- sistent with the policy of the State to preserve its waters so as to retain to itself the bed of the streams, and the lands outside of the meander line in these fractional quarter sections through which ran a meandered stream. The canal, with its locks and aqueducts and its feeders and these beds of the streams were all mortgaged together to the trustees, and all reverted together to the State after the canal debt was paid. That policy has not been changed at any time, but, on the contrary, has been reaffirmed by the Leg- islature by declaring certain rivers navigable, by the various Acts preserving the Illinois and Michigan Canal and the various Acts of permission to different persons to build a bridge over the Des Plaines Eiver and other streams, thus constantly manifesting its purpose to exercise its power over and control of these streams of water. The interests of the whole people of the State require that the policy of the State as manifested in this behalf by the several Acts of the Legislature should be maintained. There is nothing in the Act of 1843 expressly abandoning that policy or repealing the provisions of the Act of 1839 pertaining thereto. The two Acts of 1839 and 1843 can both stand in harmony with that public policy. There is no necessary destruction of that policy by the Act of 1843. Can it then be held that, by implication, the statute of 1839, so im- portant to the people of the State, shall be held to be repealed by implication? To do so, we respectfully submit, would be to work a great wrong and injury to the people of the State. To refuse to so hold, would work no hardship to the individuals of the State \27 becaiiso ilioy aro oacli and all fairly (‘harmed wiili noilco of lli(i fact that tlio policy and ex[)ress le£>-islati()n of tlio State was and is to retain the beds of these streams foi* tlie use of the whole peo- l)le of the State, and the purciiaser of tliese fractional cpiarter sec- tions through which a meandered river ran had no right to re- gard the policy of the State as entirely changed and to claim that in the purchase of one of these fractional quarter sections he was buying the bed of the stream. Upon this phase of the subject, we respectfully submit that the State of Illinois has not parted with the bed of the Des Plaines River nor with that portion of the lands between the meandered line and the stream in the southeast quar- ter of Section number twenty-five (25), in Township number thirty-four (34) North, in Range number eight (8) East of the Third Principal Meridian in Grundy County, Illinois, over and upon which the defendant company proposes and has actually begun the erection of a dam and power-house. IL THE CANAL LEGISLATION SHOWS SEVERAL RENEWALS OF THE ACT OF 1839, AND A LEGISLATIVE INTENT AND POLICY TO KEEP IT IN FORCE. Caml Lands — Legislation on Sales of. An examination of the Canal Acts shows that the policy of the State on Canal Lands as settled by the x\ct of 1839 has never been changed. Acts of Congress. 1822. 1. An Act to authorize the State of Illinois to open a canal through the public lands to connect the Illinois River with Lake Michigan. (Approved and in force March 30, 1822.) (Stead’s Canal Comp., p. 1.) 1827. 2. 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. (Ap- proved and in force March 2, 1827.) {Id., p. 2.) 1833. 3. An Act to amend an Act entitled, ‘‘An Act to grant a quantity of land to the State of Illinois, for the purpose of aiding 128 ill ojieiiiiig a (‘anal to ('oiinect tlie waters of Illinois River with those of Lake Michigan, ” and to allow further time to the State of Oliio for commencing the Miami Canal from Dayton to Lake Lrie. ( A|)])rov(‘(l and in force March 2, 1833.) (Id., p. 3.) 1842. 4. An Act to authorize the States of Indiana and Illi- nois to select certain quantities of land in lieu of like quantities heretofore granted to the said states for the construction of the Wabash and Erie and the Illinois and Michigan Canals. (Ap- proved and in force August 29, 1842.) {Id., p. 3.) 1854. 5. An Act to authorize the State of Illinois to select the residue of the lands to which she is entitled under the Act of second of March, eighteen hundred and twenty-seven, granting land to aid that state in opening a canal to connect the waters of the Illinois River with those of Lake Michigan. (Approved and in force August 3, 1854.) {Id., p. 4.) Canal Lands — Illinois Legislation on Sales of. 1829. An Act to provide for constructing the Illinois and Michi- gan Canal. (Approved and in force January 22, 1829.) (Stead’s Canal Comp., p. 14.) Section 7 authorizes sales of any and all lands, without restric- tion, at public or iDrivate sale, on same terms and conditions as of sales of public lands by Federal Government. Section 10 authorizes the Commissioners to take and use any canal lands, and ivalers and streams thereon, for the canal. 1831. An Act amendatory of preceding Act. (Approved and in force February 15, 1831.) (Id., p. 17.) ‘‘Section 11. Nothing in this Act, or the one to which this is an amendment, shall be so construed as to prevent said com- missioners, or their successors in office, from using any stone, timber, ground or ivater or other material, for the purpose of making or aiding said canal, which may be required in its con- struction ; and in all sales of said lands this right is hereby ex- pressly reserved free from any cost, charge or liability tchal- ever.’^ The right to take and use, for canal purposes, without cost, the waters passing through the canal lands has been reserved from the beginning and is still reserved. 121 ) 181)1). All Act to aholisli the oniee oi* (Janal (JoiniiiissioiK'rs. (II. L. 18, *).*), |). 11,*^; Stead’s (tanal Com])., p. 21.) 183(5. All Act for the construction of the Illinois and Michigan Canal. (Approved and in force danuary 9, 18,3(5.) (Stead’s ('anal Comp., p. 30.) “Sec. 21. It shall be lawful for tliem to enter upon and use any lands, ivater, streams and materials of any descri))- tion necessary for the prosecution of the works contemplated by this Act.” Sections 33, 34 and 35 authorize sales of certain specified lands with interest-bearing deferred payments, and “a failure to jiay such interest or the residue of such principal within twenty days after the same or any instalment thereof becomes due, shall for- feit to the State for the benefit of the canal fund, the said lot or lots, and all claim thereon/^ The Act of 1836 was amended by the Acts of 1837, 1839 and 1840. . 1837. Act of March 2, amending Act of January 9, 1836. (Stead’s Canal Comp., p. 38.) “Sec. 10. The Canal Commissioners shall insist upon the right of the State to the right of way, through and upon all lands heretofore sold or granted by the State, and also the use of all ivater and materials required in the construction of the canal ^ By these Acts the Legislature reserved from sale the right, title and use of the waters and streams running through canal lands, free of claims for damages against the State for their use. 1837. An Act to provide for the sale of certain canal lands and for other purposes (Approved and in force July 21, 1837) (Stead’s Canal Comp., p. 48) authorized sales of lands sufficient to provide $400,000 by payments in instalments. 1839. An Act to ])rovide for selling certain water lots and privileges on the Illinois and Michigan Canal. (Approved and in force Feb. 22, 1839.) (Stead’s Canal Comp., p. 52.) 1839. Feb. 26. An Act to amend the several laws in relation to the Illinois and Michigan Canal. (iVpproved and in force Feb. 26, 1839.) (Stead’s Canal Comp., p. 59.) S(‘(‘ti()n 1 ropotils provisions on sales for y)ayments in instal- ments. Section 2, ('lanse 5, j)rovi(les for forfeiture in case of violation of terms l)y pnrcliaser. The remainder of the Act contains the following, among other provisions : Sec. 2, cl. h. ^‘That no stream of water passing through the canal lands shall pass, by tlie sale, so as to deprive the State from the use of such water, if necessary to supply the canal, without charge for the same. * * * ‘^11. Lands situated upon streams which have been mean- dered by the surveyors of public lands by the United States shall be considered as bounded by the lines of those surveys, and not by the stream. a 12. * * * Upon the terms and conditions specified in this Act, the hoard shall execute the laws heretofore enacted authorizing sales of canal lots and lands, notivithstanding the time limited for those sales may have expired. * * * ^^(No Damage Allowed for Water.) Sec. 17. No damage shall be allowed by any person for the use of water in any river or stream, the bed of which, or some part thereof, does not belong to tlie claimant, nor for the use of water in any stream, whether navigable or not, if the boundaries of the land through which it passes are fixed by landmarks, and not by the stream itself. ^‘(Islands, etc., Deemed Canal Lands.) Sec. 18. Islands and inundated lands, situated within the limits of sections of lands granted to the State by the United States, shall be deemed, occupied, and held as canal lands.’’ The Act of 1839 was an amendment to all previous canal statutes. Thereafter the previous statutes operated as if the terms of the Act of 1839 had been a part thereof from the beginning. Holhrooh v. Nichol, 36 111., 161, at 167. Turney v. Wilton, 36 111., 385, at 393. Endlich on Statutes, Sec. 294. Blair v. Chicago, 201 U. S., 400, at 475. Richland Co. v. People, 3 111. App., 216, Reg. V. Overseers, 3 El. & El. (107 E. C. L.), 224. U. 8 . V. SapinTvOiv, 90 F. E., 654. Farrell y. State, 54 N. J. L., 421. People V. Circuit Judge, 37 Mich., 287. Tlie object oC reserving tlie river bed, like tliat of reserving tlie water, was to insure the power and opportunity for obtaining an ample supply of , water (and accessibility thereto) for the canal. It became in substance a part of the canal. 3840. An Act to amend the several laws in relation to the Illinois and Michigan Canal (approved and in force Feb. 1, 1840) (Stead’s Canal Comp., p. 70), required the sale of sufficient land to pay in- terest on the canal debt and added: ‘‘Sec. 1. * * * Sales made under this Act shall be con- ducted and under the same restrictions as required by the Act to which this is an amendment * * And “Sec 2. * * * Sales made under the provisions of this Act shall be subject to the same forfeitures and restrictions as required in the several Acts authorizing the sales of canal lands.” 1843. An Act to provide for the completion of the Illinois and Michigan Canal and for the payment of the canal debt. (Approved and in force Feb. 21, 1843) (L. 1843, p. 54; Stead’s Canal Comp., p. 76), conveyed by way of mortgage, the canal, with all its appur- tenances, including among such appurtenances the right to take the water from the river, and the reserved river-bed. No power of sale of the canal or its appurtenances was incorpo- rated in the Act. Section 10 reserved lands previously sold, whether theretofore or thereafter forfeited or relinquished, and added: “Sec. 10 . * * * The said land and lots hereby reserved sliall, within three months after the passage of this Act, be appropriated as is provided in the thirteenth section of this Act, and sold in accordance with the latvs of this State regulat- ing the sale of canal lands. Sec. 13 provides for sales, but — “None of the lots, lands or water-powers so granted to the said trustees shall be sold until three months after the com- pletion of the said canal; the said lots, land and, water-powers shall then he offered for sale hg the said trustees at public auction, 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 the ninth of January, eighteen hundred and thirty-six. * * * At the expiration of the said four years, the said trustees sliall expose the residue of said lands wliicli may remain on liand to sale at sneii times and in sueli manner as tliey may deem proi)er. ‘‘The said Board of Trustees are authorized to convey lands and water-powers sold hy them as aforesaid, after tlie y)ur- ehase (money) for tlie same he fully paid, but not 1)efore Sections 18 and 19 of the Act read as follows : “Sec. 18. This Act shall go into effect, and the said canal [)roperty and assets shall vest in the said trustees, as herein- before 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 Legislature 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. “Sec. 19. "Whenever the trust created by this Act shall have been fully executed and performed by the said trustees, the said canal and the canal properly that may then remain, shall re- vert to ihe State; and the State hereby reserves the right of paying off 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, and the remaining canal property and assets to the State.” The Act of 1836 had already been amended by the Act of 1839, and the amendment was for all purposes part of the original Act (36 111., 161) ; and when in 1843 the trustees were authorized to sell “in the manner prescribed in the Act of the 9th of January, 1836,” — ^that Act of 1836 stood as amended in 1839 — and the trus- tees were authorized to sell in the manner prescribed by^ the Act of 1836 as amended in 1839. The trustees were forbidden to sell any lands at all until after building the canal. 1843. March 4. “An Act for leasing the water-power of the Illinois and Michigan Canal.” (L. of 1843, p. 63; Canal Comp., pp 86-7.) This authorized the trustees to dispose of certain surplus water and the lands on which the same could be used, “on the terms pro vided by an Act to provide for disposing of water lots of the 11 li nois and Michigan Canal,” approved February 22, 1839. The Act of Febnmiy 22, 3839, had theretofore })ecni amended f)y the Act of Pehriiary 2G, 1839, restricting sales })eyoTid tlie meander line. Water lots, thereafter sold, whether under the Act of February 22, 1839, or March 4, 1843, were bounded by the meander line. 1845. February 27. ‘‘An Act to amend an Act entitled, ‘An Act to protect Canal Lands against trespasses,’ approved March 4, 1837 ; and an Act to amend an Act entitled, ‘An Act to protect the Canal Lands against trespasses,’ approved February 26, 1839” (Eev. St. 1845, p. 602 ; Canal Comp., p. 90), contains the following provision : “Said lands and lots shall be sold in conformity with the general provisions of ‘An Act to amend the several laws in relation to the Illinois and Michigan Canal,’ approved Febru- ary 23, 1839.” (The “23” is a misprint for “26.” There was no Act of that title passed February 23. See Canal Comp., pp. 54-9.) This was another re-enactment of the meander line. 1847. March 1. An Act amendatory of last cited Act of Febru- ary 27, 1845 (L. 1847, p. 24; Canal Comp., p. 107). This Act devolved on the trustees the duty of such re-sale, and contained the following: “(State Trustee) Section 2. Wherever the terms ‘Acting Canal Commissioner,’ ‘Canal Commissioner,’ and ‘Commis- sioner’ occur in the Act to whidi this is an amendment, there shall be substituted in the place and stead of said terms, and there is hereby so substituted, the term ‘State Trustee,’ which last term shall be construed to mean and refer to the trustee heretofore appointed, or hereafter to be appointed, on the part of this State, under the existing laws of this State, as one of the Board of Trustees of the Illinois and Michigan Canal.” This enabled the State Trustee to make the re-sale, but subjected his re-sale to the same terms and conditions as were contained in the Acts of 1836 and of February 22, 1839, as amended by the Act of February 26, 1839 ; and therefore subject to the meander line rule. These re-enactments of the meander line rule show that it was never intended to repeal it. The meander line rule was expressly re-enacted as to lands disposed of for water-power. This Unid at the site of this dam was disposed of for water-power. The ineaiuler line rule was expressly re-enacted as to all re-sales of lands formerly sold. The law would be inconsistent if it restricted the trustees by the meander line rule (a) in selling water-])ower lands and (b) re-sell-, ing lands formerly sold, but (c) permitted them to sell the remain- hig river front lands on another ride, free of the meander line restriction. There is no ground for supposing the Legislature intended to authorize such an inconsistency. [a) We maintain that the meander line rule of Section 2, Clause 11, forbids a sale beyond the meander line. {b) But if the Act of 1839 be considered as furnishing a rule of construcUon merely, then the Canal Commissioners, or their suc- cessors, the Canal Trustees, could sell lands beyond the meander line by expressly mentioning them in terms which woidd take the description out of the meander line stahite. The Boyer deed, under which the defendant claims, does not ex- pressly mention the river bed or lands outside the meander line. This would retain the title to the bed of the stream in the Canal Trustees, unless it was expressly mentioned in conveyance, and would in all conveyances bounded by the stream leave the Canal Trustees still owning the ])ed of stream. Tf the Act of 1839 is a mere rule of construction, then the Trustees after selling the land on each side, would still have the additional land constituting the bed of the stream, which they could sell sepa- rately by express mention, or by deeds conveying the ‘ ‘ center bed of the stream,” or by deeds covering ‘^botli sides,” and specifying to include ‘‘the bed of the stream outside the meander line.” This plainly shows that the Trustees would benefit by this con- struction and the estate which they received would be enhanced thereby. They would receive and be able to dispose of that much more l)y separate express conveyance. But we believe the correct interpretation of the Act of 1839 is that it reserved the bed to the State and forbade sales of the bed; and that the Canal Trustees took it, just as they took the canal and its bed, and the 90-foot strip. If a court of equity could and would foreclose the mortgage on the canal and sell it ont for non-payment of tln^ bonds, the b(*d of the stream, like the 9()-foot strip, would ^o with the canal, as an in- cident in such sale. It was reserved, as tire 90-foot strip was re- served, for the purpose of fully protecting the State in its right and power at all times to obtain an ample supply of water from the river for the purpose of feeding the canal. III. Who O’wns the water in the stream? We answer, '‘The State owns the water in the stream/^ ‘^The comprehensive statement of the rights of a riparian owner is that he has a right to have the stream remain in place and flow as nature directs, and to make such use of the flowing water as he can make without materially interfering with the equal rights of the owners above and below him on the stream. # * There is no property right in any particular particle of water, or in all of them together. The advantages resulting from a stream of water depend upon the fact that the particles, uniting in one mass, maintain a perpetual course throughout the land, and these particles are therefore regarded as part of the common mass, and subject to no man’s ownership.” (2 Farnham’s ‘^Waters,” Secs. -l-()l-2, citing many cases.) Since the particles of water are sul)ject to no man’s ownership, the title to them is by necessity vested in the State. ‘‘No one has, strictly speaking, a ])roperty right in the water itself, but a simple use of it, and this is tlie necessary result of the perfect equality of rights among all the proprietors of that which is common to all.” {Plumleigh v. Dawson, (i 111. (1 Gil.), 54-t, 550.) “The law has long been settled in this State that there can be no property merely in the water of the running stream. The owner of land over which a stream of water flows, has, as in- cident to his ownership of the land, a property right in the flow of the water at that place, for all the beneficial uses that may result from it, whether in motive power in propelling machin- ery, or imparting fertility to the adjacent soil, etc.; in other words he has a usufruct in the water while it ])asses. But all riparian proprietors have precisely the same right in regard to it, and apart of the right for consumption for supplying natural wants, neither can, to tlie injury of the other, obstruct tlie water, or divert or arrest its flow.” (Scofield, fJ., in Druley v. Adam, 102 111., 193.) The State, oivning the water, owns it in trust for the whole peo- ple for the paramoant right of navigation ; and subject thereto, the flow thereof is held in trust for the riparian owners. ^^Tlie title to land under a navigable river is not the same as the title to the shore land. The title to the upland is absolute and paramount, while the title to the lands over which the navigable water flows is subordinate to the public right of navi- gation. In a navigable stream the public right is paramount, and the owner of the soil under the bed of such a stream can only use and enjoy it in so far as is consistent with the public right, which must he free and unobstructed. * * * Under these established rules an owner who erects a structure, whether it be a tunnel or whatever it be, in the soil under the navigable water, does it at his peril, and if it becomes an ob- struction to the paramount right of navigation he may be com- pelled to remove it.” West Chicago St. B. R. Co. v. People, 214 111., 9, 20. Affirmed, 201 U. S., 506, at 520, where the United States Supreme Court said ‘‘it was adjudged by the State Court in harmony with settled doctrines, as will presently appear.” And the United States Supreme Court added: “In addition to these considerations wo may suggest the important one that the riadits of the cojiiDany. as the owner of the fee of land on either side of the river or in its bed, were subject to the paramount riaht of navigation over the waters of the river. Weber v. Harbor Corners. 18 Wall., 57, 66; Illi- nois Central B. B. Co. v. Illinois. 146 U. S.. 387. 458; Shively v. Boirlby, 152 U. S., 1, 30;’ Gibson v. United States, 166 U. S., 269, 276; Scranton v. Wheeler. 179 U. S.. 163: C.. B. & Q. By. Co. V. People, 212 111., 103 ; Brazen v. Bressler. 64 111.. 488; Peo- ple V. Vanderbilt, 28 N. Y., 396; Setae v. McLuor. 154 X. Y., 61; State V. Parrott, 71 X. Car.. 311; State v. Dibble, 4 Jones (X. C.), 107 ; Dvedrich v. Northicestern. etc.. By. Co., 42 lYis., 248; Parmeter v. Attornen General, 10 Price, 412; Willianis v. Wil- cox, 8. Ad. & El., 3t4: Colchester v. Brooke, 7 Q. B., 339. The principle is thus declared bv a leading text-writer : ‘ The privi- lege of navigation upon all waters wdiich are capable of such use in their natural condition and are accessible without tres- passing upon private lands, is a common and paramount right. ^ * At common law the right of navigating a public stream is paramount to the right of passage across the stream 137 by ineniis of a bridge.’ Gould on Waters, Sections 8f), 88.” (201 IT. S., 524.) IV. TtlE SUKVEiYS OF THE RIVER SHOW THAT IT WAS MEANDERED. (1) The Government Field Notes (Trans., ])j). 5717-5720, 5703- 5782) : Summary of Field Notes of the Meanders. The Field notes show that they were made in October, 1821. P. of Trans. 5720 On page 1 of the exhibit Field Notes, volume 250, page 259, the surveyor records as follows : Meandered up the N bank of the Illinois Eiver in Sec. No. 24, T. No. 34 N., E. No. 8 E.” Then follow the directions 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 Bluff leaves the river.” (This is at the site of the proposed dam.) ^‘Meandered u]) the N bank of the Illinois Eiver in Sec. No. 36, T. No. 34 N., E. No. 8 E.” 5763 On page 44 of the exhibit of field notes, appears the follov;- ing (Vol. 247, page 158). ‘‘Meanders down the N. side of La Plain through Sec. 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 151 W 5.00 S 301 W 7.50. S 31 W 13.00 S 13 E 3.50 S 51 W 13.00 S 7 W 7.00 S 16 W 8.76 S 4L, W 4.21 S 6 E 7.23 Oct. 17th, 1821. dno. Wall to the corner of F Sec. 1 and 12.” (P. 207.) ^Whmmenced meandering on the west bank of an island in Illinois liiver at tlie corner of fraetl. Sec. 11 and 14, T. 34 N. of R. 9 E., thence down the river with the meanders thereof.” (Tliis and the succeeding ];)a^es referring to ‘‘the island” refer to Treat’s Island. And connnence to designate the river as the “Illinois River” from the month, “ii]) what we call the Des Plaines, and uses the term “Illinois River” seventeen times in these field notes, and the term “La Plain” three times. It was suggested contra that the language of the Act of Cvongress, 1822, about connecting the waters of Lake Mich- igan and the Illinois River showed that the Des Plaines was disregarded, but here tlie Government Surveyor, in surveying this very river, under direction of Congress and rei)orting it to the Government, describes it as the “Illi- nois River,” only the year before that Act was passed; ])lainly the term “Illinois River,” as used in that Act, included as part of it, the Des Plaines River.) 5762 In Volume 247, page 156 (Field Notes, pages 42-3), the sur- veyor says, “Continued through Sec. y2. * * * Carried up across the Portage Creek or swamp Oct. 16, 1821, John Walls.” Plainly this surveyor thoroughly understood that -he was meandering the river. (2) and (3). Turning to the Government township maps set out in items (2) and (3) in brief above, we find that these maps, mad^^ by Surveyor John Walls in 1821, confirm this. V Summary of Testimony of Cooley on Meander Line. 251 ^‘The practice of the Government surveyors with reference marking meander lines on a river, in platting a standa^’d 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 theoreti- cal meander line. The secondary lines run by the surveyor for the purj)ose of determining that, are not platted but the bank itself whic^Ii is the object of the survey, is platted. The iv^^atment upon a map of this size, and I refer to the McFul- lough Exhibit I, in a stream that is meandered, would differ 2517 from the treatment of a 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 sur- veyor and actually determined by the surveyor. Directing my attention now to Township 34, Range 8, on McCullough Ex- Ilibit 1, this (lifferonu'c to vvirioh I have i‘(h erred is indieatcuJ in tlie treatment of the two streams. The Dupage Kiver as sliowri upon that map is not a meandered stream. Tlie Des Plaines and Jllinois and Kankakee are. A surveyor familiar with the custom and practice of the Government surveyors inspecting that map would be informed as to what stream was meandere(l and what stream was not by the manner in which the streams are delineated; also by the figures of acreage given for the 2518 fractional sections along the meandered stream. The section 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 Des Plaines River or the other meandered streams they would show fractional quarter sec- tions where in contact with the stream. He would see parallel lines in -one and a lack of parallel lines in the other. That would be evidence at once that one stream was convention- ally platted and the other was platted by the notes determined in survey.” As the witness Cooley pointed out, the Dupage, which was not meandered^ was represented on these plats by iivo conventional parallel lines. The Des Plaines, Illinois and Kankakee, which icere meandered, are represented not by conventional parallel lines, but by lines which in some places swell wide apart and in others come near together, and in all places conform accurately to the specifi- cations in the field notes, and delineate the same with all the minute- ness which is capable of being shown upon a plat of that size. The same thing is again shown in the difference between the treatment of the Des Plaines River above ^diead of navigation,” and below that point. Above the ^Giead of navigation” the Des Plaines River itself is represented by two conventional parallel lines less than a sixteenth of an inch apart. In surveying that part of the Des Plaines River, just as in surveying the Dupage River, or any other unmeandered stream, the surveyor took no ac- count of the river except to determine its location and ran his lines straight across the river, without any distinction of treat- ment between the bank on one side and the bank on the other side. Below ^diead of navigation” the surveyor carefully determined the location first of the one bank and then of the other bank, by a separate series of courses, distances and changes of direction and points of measurement, treating each bank independently and mak- ing each bank the boundary of the fractional section which he laid ^M) off, (*{illing encli section tlirough wliieli tlie stream ran a fractional se(*tion and putting the area upon one side and then upon the other side of the stream, and tlien platting the whole by a plat which conlorms to the specifications of courses, distances of direction and ])oiiits of measurement, so that the two sides of the stream are represented independently of eacli other as inclosing a body of water and separating two bodies of land by lines independently surveyed. (Ahst., p. 845.) (4) In the (yaiial Surveys of 1846-7, which drew and platted the line, Orr Exhibit (Trans. Atlas, p. 3924; Ahst., p. 1918), On- Exhibit ‘‘4” (Trans. Atlas, p. 3925; Abst., p. 1919), Orr Exhibit “7” (Trans. Atlas, p. 3927; Abst.,. p. 1920). ‘These three Orr ex- hibits are copies of the survey by the canal surveyor, A. J. Mathew- son, in 1846-47, made under direction of the Canal Trustees. Mathewson Survey of 1846 and 1847. In 1839 the Legislature passed the statute making the meander line the boundary of canal lands thereafter sold. In 1843, they mortgaged the canal property to the Canal Trustees, and ordered that they make no sales of canal lands until after they should com- plete the canal. In 1846, the Canal Trustees, in order to carry out the ivill of the Legislature, and execute the powers vested in them, employed A. J. Mathewson to survey the canal route and lands and the meander lines of the river along which it passed. Mr. Mathewson pro- ceeded to survey the entire line of the canal and the entire meander lines of the Des Plaines and Illinois Kivers, so far as they ran through canal lands; and he took the United States Government field notes and delineated from them the meander line of the Des Plaines Biver from the head of navigation to its mouth. The Canal Trustees in doing this plainly believed and intended to treat the meander line statute as in force and to conform there- to, — and they had this meander line survey made and platted in order that there should be no mistake about the boundary of canal lands, which they might sell. There is no other reasonable object conceivable for which they would incur this large expense in plat- ting this entire meander line. In 18()() tlie Canal Triistoes sold this section 25 at the iriouth of the river to (diaries K. Boyer. In 1908 the surveyor, Kudolpli, went to the site of the darn and surveyed and made out tlie meander line afresh. The line as he surveyed it corresponds exactly with the line as surveyed hy canal surveyor, Mathewson, in 1846 and as surveyed by the United States Government surveyor in 1821. Purchasers of land who buy the same by a description referring to the United States Government survey as a muniment of title, are charged with knowledge of what is therein contained, and take subject to whatever limitations are imposed thereby. ^‘The maps, plats and field notes of governmental surveys by reference become a part of the evidences of title to enable the grantee to identify his boundary lands. ’ ^ Per Scates, J., in Middleton v. Pritchard (3 Scam., at 521). The Acts of the Legislature in declaring the meander to be the boundary, and of the state surveyor, under direction of the Canal Trustees in meandering this river and platting the line thereof, made the meander boundary complete. The State of Illinois drew the boundary line twelve years before Boyer acquired title. (5) In the ma}) called “Itudolph Exhibit 1.” (Abst., p. 1922.) This last is a survey made at the time of the trial by Surveyor Emil Rudolph, assisted by Surveyor H. H. Bremer. It delineates the meander line of the Des Plaines River along the right bank at the site of the dam and shows the coffer-dam and the progress of the^ work as it existed April 13, including the location of the power house and the coffer-dam, which is shown to be upon the projecting triangle of land outside the meander line. Summary of RudolpJPs Testimony. 2206 ‘ ‘ * * * I have been engaged in the business of surveyoi since 1871. 2207 ^‘ The principal part of my work is in establishing boundary lines, the lines of lands and many larger surveys for the rail- roads and parks and cemeteries. Anything in the surveying fine, locating the meander lines of lakes and rivers. “1 have been compelled to become acquainted with and have become acquainted with the plats, maps and rules of tli(‘ office of tlie United States Government in charge of land surveys in Illinois, made by and under the direction of the surveyor general. “Ihiese (hxamients, Field Notes, Exhibits ], and 3 (Abst., 2312 PI). 1724, 1725) — for instance, take tlie one marked Exhibit 2, 2213 1 see in the first page of the one marked ^Exhibit 2’ there ap- pears in parenthesis. Volume 250, page 203, and then the legend ‘Meander ])y thcf S. })<.nk of Illinois River, in Sec. No. 20, T. No. 34 N., R. No. 8, east.’ Below that there is a col- umn — tliere are columns N. E. 81 E., and opposite tliat eight are two ciphers. Below that N. 84 E. and to the rigid of that five and two ciphers. 2215 “N. 81 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 the same meaning, right through until they strike the corner 2210 post, the section corner. “Volume 250, page 203, means the volume of Government plat books, or Government surveys, and the page is the page number of that volume. “Where these Government notes. Government field notes appear. ‘Meander by the S. bank’ means meander by the south bank of the Illinois River; in Sec., that is, in Section No. 20; T. is township; No. 34 N. is north; R. is range; No. 8 E. is east; and then the courses and distances follow. That ‘east’ means east of the third principal meridian. 2217 “ ‘Meander by the south bank’ as understood by surveyors — meander is, as I understand it, as the running of a line tak- ing its course, and measuring its distances from some given starting point and continuing on to the ending point. That I would call surveying a meander line, and is generally ap- 2218 plied as the meander line of the river, or lake 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 inches 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 Government survey plats indicate the meander line. Thev show the location of the river in a geu^^al way by showing the direction and course between two ineander 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 Des Plaines River in Section 25, Town- ship 34, Range 8, ascertain or make certain the location of the meander line of the Pes Plaines River in that section. 143 “T can from tlieso field notes vvliieli have lieen sliovvn rntr 2221 and from this plat \vlii(*h lias been shown find a meander line located by tliem. ‘‘Looking at Section 25, Townsliip 34, Itange 8, shown on this plat, 'I observe on the northeast cpiarter, the plirase ab> breviated ‘IbO Ac.,’ and on the sonthwest quarter tlie legend in figures, the northeast quarter is 160 and in the south- west is 146.24; in the northwest is 101.90; in the southeast is 94.41. The figures represent the area of the different frac- tional quarters, in acres. The area which is covered by the pale blue which is labeled the name of the river would be outside of the meander line. On several other sections the legend 640 acres means that the section contains 640 acres. Sections 34 2225 and 35 in Township 34, Kange 8, each contain 640 acres by Government survey, being a full section. * * * * * * 2225 “The reason why that the surveys made the difference in 2226 this particular section twenty-five, giving 160 acres to the northeast 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 and the fractional parts, the areas consti- tute, as I have said before, the lines within the section line and the meander line. These figures indicate in the different fractional quarter sections of Section 25, Township 34, Range 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 Gov- ernment surveys. The balance of the area that would make up the 640 acres of the section, not mentioned in these fig- ures, indicating the several amounts in the several fractional quarters is to be found in the river and between the edges of the river and the meander line. “There is a little patch that has not been mentioned (in- dicating on plat), twenty-six acres, twenty acres and a frac- tion, there on the south, and the figures that have not been mentioned by anyone appearing in the southeast corner. ***** 2230 “From the field notes, and the McCullough Exhibit 1, the streams which are shown to be present in Section 25, Town- ship 34, Range 8, have been meandered by the surveys of pub- lic lands of the United States. “There is not anything called for by the expression ‘mean- dered by the surveys of the public lands of the United States,’ which is absent from the field notes and this plat. (McCul- lough Exhibit 1, Abst., ]). 1914.) * * ' * * * 2243 “It is possible to retrace the original meander line in Sec- 2244 tion 27), Townisliip 34, Kange 8, from tliese notes. T have retraced tliem by survey. T have a plat of my surveys on a larger scale. Jt is this which is now produced (exhibiting plat to witness), bearing also the legend ^Plat of survey of ihe 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 Kudolph and H. H. Bremer, Sur- veyors,’ whicli said map was received in evidence and marked ‘Rudolph Exhibit 1, Atlas, p. 3941 .’ (Abst., p. 1922.) * * * 2248 ‘‘These lines on this, which I have described as meander lines, represent the position of the retraced meander line of tlie 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. * * *’? (6) The testimony of the engineers, Rudolph, Bremer and Cooley, shows that the river was meandered according to the prac- tice of engineers. V. THE CASES ON THE MEANDERING OF RIVERS EXAMINED. 1848 Canal Trustees v. Havens, 5 Gilm., 548. Des Plaines River. •‘Appeal from a decision of Circuit Court of Will County for an agreed statement of fact. The plaintiff in court below claiming damages for injury to their mill by reason of diver- «iion of water from the Des Plaines River. It is admitted that the Illinois and Michigan Canal was com- menced in 1836, and that portions of the canal through said sections were put under contract in 1838, and the guard Iock on section nine near the dam across said river, first 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 was quarried and dressed during the spring and summer of the same year. The stone for the said dam on section nine (which is a cement and cut stone dam) was commenced being quarried and cut the same season, and the dam was commenced the following season, in the spring, and finished in the fall of 1841. The contracts for building said dam and locks were made in 1839, that said lock and dam were to be built. It is agreed that in the spring of 1839, the plaintiffs com- menced building a mill on said lot one in block fifty-seven, on section sixteen, nnd also a dam across the Des Plaines Kivcn*, connecting said lot one in block fifty-seven on the east bank of said river with the division line between lots one and four in block fifty-six, on the west bank of said river, and com- pleted said dam and sawmill so as to use the same in the fol- lowing October or November. Soon thereafter the Commis- sioners of the Illinois and Michigan Canal, in constructing said canal, removed the west end of said dam so that it became connected with the east bank of the canal, which bank en- croached upon the natural channel of the river about ten feet. * * * 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 natural 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 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 been no change in the original plan of supplying the canal with water from Lake Michigan by the deep cut as originally contemplated, 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. It is also admitted that the Des Plaines River is not navi- gable in fact, although a portion of it is declared to he so by Act of the Legislature. The work upon tbe canal commenced being suspended in 1841, and was entirely suspended from 1842 to 1845. The (breuit Lourt decided the ])laintiffs were entitled to damages and Su})erior Court affirmed the decision. ^‘Tliat rivers not navigable belong to tlie owners of the ad- joining land and that when the opposite banks belong to dif- ferent individuals each bolds to the thread or middle of the stream. ’ ’ ^‘The general rule, that rivers not navigable belong to the owners of the adjoining land, and that, when the opposite banks belong to different individuals, each holds to the thread or middle of the stream, is not disputed, but then it is insisted that the appellees have no such right in this case for two rea- sons : 'Mt is first contended that by an Act of Congress, approved March 30, 1822, the State of Illinois was anthorized to survey and mark through the public lands of the United States the route of the canal connecting the Illinois Liver with the south- ern bend of Lake Alichigan, and ninety feet on each side of said canal was forever reserved from any sale to be made l)y the United States, and vested in said State for a canal ; wliere- fore it is said that the appellees are deprived of any right which they might otherwise have to any water or land within ninety feet of said canal. It is to be observed that a certain time was provided by the Act of Congress within which the State was to commence and complete said canal, or, upon failure to do so, it was declared that the reservation and grant made by said Act should l^e void and of no etfect. With- out stopping to inquire whether the right of way secured by the Act of Congress was forfeited, so as to revest ipso facto in the Government, upon failure of the State to commence and complete the canal within the time limited by the Act. or whether, as is contended, the conditions of the Act of 1822 were waived, and the time for commencing and completing the canal extended by an Act of Congress passed March 2. 1827, it will be sufficient to show that nerther of said Acts of Con- gress can have any bearing upon the rights of the appellees, admitting even that they are of the character, and contain all that is contended for by the appellants. ‘^The lots of the appellees are situate on section sixteen, which was granted to the State for the use of schools, prior to the passage of the Act of 1822. li was not, therefore, pub- lic land at the passage of the Act, and, consequently, no part of it could at that time have been reserved from sale by the United States. ***** ^Mt is next insisted that the United States, in granting the school section to the State, did not include in the grant the bed of the stream running through it, but that said stream, the Des Plaines River, was meandered through said section, and a plat thereof returned to the Surveyor General’s office, show- ing that the river was not included in the survey; and while the appellants admit that a grant of land bounded by a stream not navigable, passes the property to the thread of the stream, yet it is insisted that the owner has the right to restrict his grant either to the edge of the water, or to high or low water mark. Admit that the owner may so restrict his grant, of which there can be no question, when the intention is clear and manifest, and 'still the admission cannot avail the appel- lants, because there is nothing in the record to show that the United States intended to limit their grant so as to exclude the river. Neither the plats tiled in the Land or Surveyor General’s office, show any lines marking the courses and distances along the margin of the river, as a boundary of the adjoining land. ‘^The agreed case states as follows: At is admitted that said Des Plaines River is meandered through the entire length of said sections, as appears by the minutes of said survey. 147 in said surveyor’s office, a copy of wliicli iniruites is also at- tached, marked 2, and delineated on said maps.’ We do not understand this language to imply that the meandered line was marked upon the maps in the Land and Surveyor’s offices, but that it would appear by the minutes, not maps, that said river was meandered, a copy of which minutes is also attached and delineated on said maps, not as they appear in said of- fices, but as they are made exhibits, which, however, is an error in point of fact, as there are no distinctions of said meandered lines upon the maps. As there was, therefore, no marked lines upon the plat by which the grant was made, defining and limiting the land granted to the margin of the stream, the whole argument founded upon such a supposed state of facts fails. ^‘That a meander line, which is run for the purpose of ascertaining the quantity of land in the fraction, is not a boundary, has been settled by a former decision of this Court, in the case of Middleton v. Pritchard, 3 Scam., 510. ^ ^ In that case the Court say : ^ It appears the Surveyor of the Grovernment traced the courses and distances along the margin of the slough, next the main land, in order to estimate the quantity of land in the fraction; and which estimate did not include the locus in quo. But the plats in the Land Office, and 'Surveyor General’s Office, have no line marking their courses and distances as a boundary.’ Neither have the plats referred to in this case.” 1850 Canal Trustees v. Havens, 11 111., 554. Bes Plaines River. Appeal from order of Circuit Court of Will County, approv- ing the assessment of damages for diverting the water from Haven’s dam into canal. Assessment eri-oneous because plaintiff, as riparian owner, only took to the middle of its 'street and did not have any riparian rights on the west side of the river and were entitled to damages for the use of one dial f of the flow of water only. Judgment reversed. Definition : Public right in highway or river to middle thereof. The Court say: ‘^But independent of the statute, there is a decisive objection to the claim of the appellees to riparian rights on the west bank of the river. By the common law, a grant of land bor- dering on a highway or river, carried the exclusive right and title in the highway or river to the center thereof, subject to U8 t]ie right of passage in the public, unless the terms of the grant clearly indicated an intention on the part of the grantor to confine the grantee to the edge or margin. In such case, the highway or river is regarded as the boundary or monu- ment, as part and parcel of the grant. This is stating the ])rincipal as broadly as it is laid down in any of the elemen- tary books, or established by any of the adjudged cases. Con- ceding, then, for the purpose of the argument, that the doc- trine of the common law is strictly applicable to this case, and applying it in its full extent, the appellees would fail utter- ly to make good their claim. Their grant would only carry them to the middle of the boundary. They would have no title whatever to the east half of the street, or the west half of the bed of the river. Definition: ‘‘By the common law a grant of land bordering on a high- way or river carried the exclusive right and title thereof sub- ject to the right of passage in the public unless the terms of the grant clearly indicate an intention on the part of the grantor to confine the grantee to the edge of the margin.’^ The admission in this case by the Canal Commissioners that the river which the Legislature had declared navigable, was not navi- gable, was an act outside their province and authority and not binding on the State in any other matter, even if it was in that case itself. The Canal Commissioners had no power to make such a stipu- lation. 111. & Mich. Canal v. Calhoun, 1 Scam., 521. Diedrich v. Rose, 228 111., 610. State of Illinois v. Delofield, 8 Paige’s Chy., 528. Ohio, ex rel. Atty. Gen. v. Cin. Central R. Co., 37 Ohio St., 157. Snyder v. City of Mt. PidasUi, 176 111., 397. City of Morrison v. Hinhson, 87 111., 587. Hibbard v. City of Chicago, 173 111., 91. It related to the river in Section 16, which was not a canal sec- tion. The line on the plats shown as the river border is in fact the meander line itself and not the actual river edge or border of the stream. This is well illustrated by the decision of the United States Supreme Court in Railroad Company v. Schurmeir, 7 all., 272, 286, where the Court, Mr. Justice Clifford, says: 149 ‘^Express doc'/isioii of the Supreme Oourt of the Slate’’ (10 82) ^‘was, that the river, in tiiis ease, and not the mean- der line, is the west boundary of the lot, and in that eonclii- sion of the State court we entirely concur. Meander lines are run in surveying fractional portions of the public lands bordering upon navigable rivers, not as bound- aries of the tract, but for the purpose of defining the sinu- osities of the banks of the stream, and as the means of ascer- taining the quantity of the land in the fraction subject to sale, and which is to be paid for by the purchaser. ‘Mn preparing the official plat from the field notes, the meander line is represented as the border line of the stream, and shows, to a demonstration, that the water course, and not the meander line, as actually run on the land, is the boundar}^ ’ ’ These passages have been quoted with approval in Jejfris v. East Omaha Land Co., 134 U. S., 178 at 196, and Hardin v. Jordan, 140 U. S., 371, at 381, which later decision was affirmed but with- out noticing the passage in question in Kean v. Calumet Canal Co., 190 U. S., 459, cited by Justice Holmes in 1902. June 17, 1896. So the Supreme Court of Illinois in Fidler v. Shedd, 161 111., 462, at 464, sets out in the statement of fact, the following : ‘^Wolf Lake as thus meandered, comprised a body of water covering several thousand acres of land, and when originally surveyed was believed to be a navigable lake, and was so des- ignated by the field notes of the surveyor in its original sur- vey. The plat of the original survey may be given as follows, so far as the lake is within the State of Illinois : * * * June 19, 1902. While nothing is said in this opinion in reference to the designa- tion of meander lines, still the diagram seems to agree with the rule laid down in 7 Wall., 272, that the meander lines are shown as the border lines of the water, and finally in Albany Bridge Co. V. The People, 197 111., 199, at 204, the Supreme Court in a decision per curiam quoted with approval a long passage from Jefferis v. East Omaha Land Co., 134 IT. S., 178, in which is a passage quot- ing the passage in question from Railroad Co. v. Schurmeir, 7 Wall, 272, namely that ^Hn preparing the official plat from the field notes, THE MEANDER LINE IS REPRESENTED BY THE BORDER LINE OF THE STREAM,” etc. Albany Bridge Co. v. The People, 197 111., 199, 205. 150 VI. ( I rants in derogation of })ul)rK* rights are strictly construed and not extended by iin})lication. CJiades River Bridge v. Warren Bridge, 11 Peters, 426- 50. Snell V. City of Chicago, 183 111., 439. So grants of lands under or around a navigable stream imply no intent to discontinue the public right therein. Shively v. Bolby, 152 U. S., 10. Conn., Sc., Lumber Co. v. Olcott, 65 N. H., 380; 13 L. R. A., 832. Thompson v. River Co., 58 N. H., 1. ‘AJnly that which is granted in clear and explicit terms passes by a grant of property, franchises or privileges, in which the government or the public has an interest.” All doubts are resolved in favor of the state. Coosaiv Mining Co. v. South Carolina, 144 U. S., 550, 561. Hannibal, Sc., R. Co. v. Missouri River Packet Co., 125 U. S., 260-271. Stein V. Bienville Winter Supply Co., 141 U. S., 67-80. Grants of that character are to be construed strictly in favor of the public, and whatever is not unequivocally granted is withheld. Nothing passes by mere implication.” Ibid. Holyoke Co. v. Lyman, 15 Wah, 500. So even a charter right to construct a dam across the stream does not exempt the grantee from the obligation of a subsequent statute requiring the construction of a fishway. Parker v. People, 111 111., 581. Holyoke Co. v. Lyman, 15 Wah, 512. Affirming 104 Mass., 449. Clement v. Metrop. West Side R. R. Co., 123 Fed., Rep., 271. So a grantee of public land, on which is a dam causing the overflow of adjoining land, has no right to maintain the dam after such adjoining lands are taken by other settlers. Wilcoxon V. McGhee, 12 111., 386. 151 The State was reasonably more pai'ticular to ^^nard its tith* to the land grant conveyed to it for public uses and its own grants of portions thereof, than it was in construing grants of the g(ui- eral government to individuals for private uses from tin* gemn-al body of the public domain. Hence the limitations in the Act of 1839. So the grant by the State of the right to maintain a dam in a navigable stream, while valid so long as Congress has not acted, is subject to the right of Congress to interfere in the matter when- ever it may deem necessary so to do. Pound V. Turch, 95 U. S., 459. VI 1. THE PROCEEDING BY INFORMATION IS IN SOME RESPECTS ANALOGOUS TO EJECTMENT AND IN SOME RESPECTS TO QUO WARRANTO. The trial court treated this information in ecpiity as a pro- ceeding to try the title to land. In many respects it is a trial to the title to land. (1) The State asserts ownership to the bed of the stream. The defendant denies the title of the State. This is a trial of the title to the land. (1^) The State asserts the ex- istence of a ])ublic easement throughout the reach of the Des Plaines River from Dam No. 1 to its junction with the Kankakee. The defendant denies the existence of this easement. The trial of this issue is the trial of the title to the real estate attribute involved in the easement. (3) The defendant asserts the right to overflow in iierpetuity Ihe 90-foot strip, the berm bank and tow-path of the canal. The Stat(‘ denies this right to the de- fendant and asserts the invalidity of tlie contracts which pur])ort to grant such right. The trial of this issue involves the trial of rights in real estate. While none of these are ordinarily triable in ejectment and are jiroperly cognizable in ecpiity where a more liberal rule as to the establishment of ecpiitable rights justly ])revails, — the triaf court saw fit to a])ply to the case of the State the strict rule of an ejectment proceeding tliat the State must recover, if at all 152 on the sti-(Migtli of its own title and not upon the weakness of its advcu’sjiries. If tlie lailes of ej(‘etnient are to he applied to this ease there is a rule of ejeetinent ])roeeedings that slionld he ai)plied now, viz: the gi*anting of a new trial. From the earliest times in this country it was recognized that tlie trial of the title of real estate was a matter to which a more liberal rule sliould he a|)])lied than to otlier proceedings. It might involve a homestead. It might involve a title depending upon a lost deed. It might involve a title depending upon the absence of an attesting witness or magistrate to prove the execution of a' deed. It affected the rights of heirship, dower, inheritance and devise. It dealt with the res which sprang primarily from the grant by the State or Cxovernment, viz. : the title to real estate. Thc;ge were some of the reasons which led to the gradual adoption of this rule. Originally it was said that ejectment was only a possessory action to test the right of possession between the lessee and the disseisor, and therefore was no bar, no estoppel, and a second ejectment might be instituted. But later and more important, it was held that a change of possession .would follow the first judgment, and later that in reality the action was a trial of title and that the judgment would settle the status of the title and bind the parties for all time to come. • Then the rule as to new trials was reversed and they were granted more liberally in ejectment than in other proceedings. Mills v. Caldivell, 2 Wall., 35-41; Equator Co, v. Hall, 106 U. S., 87 ; Sedwick & Wait on Tria! of Title to Land, 2 ed., secs. 576-579. Most of these special reasons and this general comprehensive reason which underlay the rest, apply with stronger reason to this proceeding to detennine the ownership of the bed of this river, the existence of this public easement for future generations, than even to the proceedings in ejectment. Since the State has been compelled to endure the burden of the ejectment rule, it ought now to have also the benefit. The ejectment rule in Illinois was adopted by statute of March 2, 1839. L. 1839, pp. 220-225. The statute was adopted from New York. In New York this provision for n so(‘oti(1 in oj(‘(‘lniOTit vvns fii-sl (‘naclod in 3828. See Act of Doc. 10, 1828; look (‘Hoct Jan. 1, 1820. 2 N. V. Dev. Stat. ( Duer, Butler S: Suencer), d. 225 ((2i. V, Bilk* L sac. 28.) Tliere was a time wlien new trials were not usual in ejectment (2 Tidd’s Practice, 1240); but the very sense of the injustice and great hardship of sucli a rule led to the change in the oppo- site direction. It was long ago settled that a State cannot maintain an action of trespass to try title to land or an action of ejectment because a State cannot be disseized. The remedy against a trespasser in such case in favor of the State is by information for intrusion. State V. Arledge, 1 Bailey, 551. Jackson v. Winsloiv, 2 Johnson, 80. 2 Washburn, Real Property, 539. The proceeding here was by information for this very reason the remedy being the only remedy of the State for such titles the incident of the opportunity for two trials ought to apply to it under the maxim that equity follows the law as to the statute of limitations although equitable proceedings are not named in the statute. Tlie same rule should apply here. The attitude of this court as to the liberal allowance of the right of new trial and the shaping its proceedings so as to pre- serve this right for the unsuccessful party, is illustrated by Lowe V. Foulke, 103 Illinois, 58, and Strean v. Lloyd, 128 111., 493, where the court refused to receive a remittitur as' to the surplus of an excessive judgment and reversed the judgment and remanded the case in order to get the case back into the trial court in time to permit the statutory right of new trial to be availed of. PuRPRESTURE : — Burden of proof is on the defendant. Rutz and Others v. City of St. Louis, C. C., 7 Fed., 438. An ac- tion for damages which resulted from the erection of a dyke in the Mississippi River. By the Court per Treat, D. J. : ‘^Second. Defendant contends that the dyke built by it was under authority of Missouri statutes, and consequently was 154 not iiiiliurful, (les])ite tlie avei*meiits in ])laintift’s petition to the eontrary. Can sueli a ))roposition he raised l)y deninrrer to the peti- tion? ^ ^ * * * * * The (piestion intended to he raised by deninrrer cannot be so i-aised. The (*onrt must he informed liy answer on trial whether the dyke interfered witli the navigability of the river, and transceiuled the ])ower of the state in the premises.” ***** Penns iflvama Ry. Co. v. Balto. d- N. Y. Ry. Co. et ol., (C. C.), 37 Fed., 129. An action for damages on account of loss suffered by plaintiff because of the erection of a bridge across the Arthur Hill. De- murrer. Per AVallace, J. : “The Act of Congress prescribes various conditions and details of location and construction which are to be observed by the defendants in exercising the authority granted (Act June l(i, 1886), and requires the approval of the secretary of war to the plan and location of the structure, precedent to its erection. It is now insisted in behalf of the defendants that the court must presume that these conditions have been complied with, and consequently that the bridge is a lawful structure. The demurrer thus raises the question of the burden of proof in a case where the navigation of public waters has been ob- structed under circumstances that constitute a nuisance, un- less those concerned are authorized by competent authority to maintain the obstruction in the manner and to the extent in which it exists. I have no hesitation in deciding that those who obstruct the use of a public highway, whether on land or water, must justify the act by producing their authority and proving that they have exercised it in essential con- formity to its terms. Their act is an encroachment upon the rights common to all, unless they have a peculiar privilege which exempts them from the general rule of obligation. The fact that a bridge over navigable waters has been sanctioned by Congress, or by the State within whose limits they are situated, and that it has been built by the person or corpor- ation authorized to build it, does not render it a legal struc- ture, unless as built it conforms to the terms and limitations of the authority. * * If tlio (‘ontontioii for llio (leinuri-oi* is sound, il would d(}- volve upon a })Iaintiff, wliose ri^lit to ili(‘ navi^i^ation of public* waters lias been interrupted by an ini[)(*diin(uit wliieh prinia facie is a nuisance, to prove that the defcuidant acted under an assumed authority, but was not justified, because bis actions were outside of the limitations of his authority ; in other words, to negative facts by way of defcmse which are peculiarly within the knowledge of the defendant. It would be as reasonable to contend that the burden of proof is upon a plaintiff, who has sued an officer for false impris- onment for taking him in custody on the public highway, to show that the officer acted without process, or under void process, or without probable cause.’’ Approved Texarkana S Ft. 8. Ry. Co. v. Parsons, (C. C. A.), 74 Fed., 408. * * * # * Doxsey v. Long Island R. R. Co., 85 Hun., 862, Bernard, P. J. : ‘‘This action is not to be treated as one based upon negli- gence. The proof is clear that the defendant is in possession of a railroad running from and between Pearsalls and Loog Branch, in Queens County. This road, by one of its bridges, is proved to have closed up a common water highway. The action was made out when the obstruction was established and the damage resulting therefrom. It was for those who obstructed or who assumed the road with the obstruction to the water highway”. ? ^<: * * * * Cantrell v. Railivay Co., 90 Tenn., 688. An action for damages for the unlawful obstruction of the Clinch Kiver. By Caldwell, J., at p. 648: “His Honor, the trial Judge, in his charge to the jury con- strued the statute and laid down the law as to necessary ob- structions with approximate accuracy; but, after doing so, he erroneously instructed them, in substance, that the burden of showing that the obstructions comi)lained of in this case were not lawful rested upon the plaintiff. Having done that, he committed the further error of telling the jury that the plaintiff had introduced no such proof, and that they should therefore return a verdict for the defendant. The general rule is that a party may not lawfully' obstruct navigation. To bring itself within an exception to that rule, , the burden was upon the defendant to establish all the facts necessary to constitute the exception. The fact of obstruc- tion having been shown, by the plaintiff, the presumption was tliat it was unlawful, and to escape liability for damage, it was incumbent on the defendant to show that it had done only what the law permitted in the particular case.’’ DIVISION THREE. DIVISION THREE. The Des Plaines River Is a Navigable Stream. I. CLASSIFICATION OF HISTORICAL MATTER. The historical sources concerning the navigability of the Des Plaines River fall naturally into three broad classes : A. Original narratives of the passage of the Des Plaines River by discoverers and traders. Among these are the following : A. — Marquette and Joliet having learned of another waterway to Mackinac than the one by the Pox and Wisconsin Rivers, by which they reached the Mississippi, went up the Illinois River and the Des Plaines River. Thwaites, Jesuit Relations, LIX, 161 (Abst., p. 687). B. — The second recorded use of the Des Plaines River was made by Father Marquette on his second voyage to the Illinois Indians. Thwaites, Jesuit Relations, LIX, 187 (Abst., p. 688). C. — A very full account of the passage from Chicago down the Des Plaines in 1699 is given by Father St. Cosme, a priest of the Seminary of Foreign Missions. Shea, Early Voyages Up and Down the Mississippi, 54-56 (Abst., p. 700). D. — ;In 1783, Jean Baptiste Perrault, a trader from Montreal to Caliokia, spent a year in the latter village, where he collected a load of furs and other goods and returned to the lakes by the Des Plaines River and the Chicago portage. Schoolcraft, Indian Antiquities, III, 351 (Abst., p. 703). E. — In 1790, Hugh Heward, a trader from Detroit, after making the circuit of the lakes trading at different points, passed down the Des Plaines and Illinois to Caliokia. (Abst., p. 745.) F. — 1823, Narrative of Provisions for Ft. Dearborn brought from St. Louis up the Des Plaines (in Account of Maj. Long’s Ex- pedition to Sources of St. Peter’s River). (Abst., p. 705.) D. — From 1825 onwards John Hamlin of Peoria made trading journeys up tlie Des Plaines River in a Durham boat. Drown, Record and Historical Review of Peoria, 83, 84 (Abst., p. 679). H. — In 1847, a boat with sixteen men and a yoke of oxen was sunk in the Des Plaines River. Joliet Signal, June 8, 1847 (Abst., pp. 403-4). I. — A case which is testified to by George W. Reed is that of the carriage of farm products in 1834 down the Kankakee River and up the Des Plaines en route to Chicago. This is described in Woodruff’s History of Will County. (Abst., pp. 401-402.) Others appear in the evidence. B. CONTEMPOEARAY STATEMENTS THAT THE DES PLAINES RIVER WAS NAVIGABLE. This class of statements may be further divided into sub-classes. 1. Contemporary directions to travelers as to the best way of getting into Illinois. This would include contemporary maps and guide books. As historical testimony these are as valuable as Class I. Among these are : A. — Map made by Marciuette and published by Thevenot in Paris in 1681 ; reproduced by Thwaites, Jesuit Relations, LIX, 154, shows the portage. (Abst., p. 1917.) B. — Map by Joliet, in 1674, published by Thwaites in his Jesuit Relations, LIX, page 86, shows the portage. (Abst., p. 1916.) C. — Diana’s Description of the Bounty Lands, page 57, Route No. 2, printed in 1819. (Abst., p. 718.) D. — The Navigator, printed in 1824, page 113. (Abst., p. 719.) E. — Gazeteer of the States of Illinois and Missouri, by L. C. Beck, in 1823, page 151. (Abst., p. 723.) 159 F. — Illinois ill 18:)7, pii^es .‘)4-:)(). (Abst., p. 722.) (Itliors appear in the evidence. 2. The second snb-class is niade np of statements hy contem- poraries that tlie Fes Plaines River was used as a regular water- way. Their statements show contemporary knowledge and are based upon a personal investigation or personal knowledge. a. — ]\rarqiiette’s statement that lie and Joliet learned from the Indians a shorter waterway to the Great Lakes than the Fox and AVisconsin route, by which they had come. The shorter route was the Illinois and Des Plaines Rivers, as is shown by the maps which have been left by both explorers. Statement in Thwaite’s elesnit Relations, LIX, page 161. (Abst., p. 687.) b. — Gabion’s Suggestion of the feasibility of making a canal. This is based upon Joliet’s observation, printed in Margry, Decou- verte et Etablissementes des Francais, etc., 1, 267. (Abst., p. 713.) c. — Statement in a letter by Governor St. Clair, written in 1790, printed in Smith’s St. Clair Papers, Vol. 1, 174. (Abst., p. 728.) e. — Major Long’s report in 1817, printed in the United States Government publication as Executive Document No. 17, 16th Con- gress, First Session, published in House Documents 12 to 13, Serial No. 32. (Abst., p. 707.) f. — James Flint, Letters from America, 1818-1820, in Thwaites, Early AXestern Travels, IX, 186. (Abst., p. 942.) g. — George Ogden, Letters from the AXest, 1821 to 1823, in Thwaites, Early AXestern Travels, XIX, 54. (Abst., 730.) h. — Report of Committee on Roads and Canals, March 30, 1826. Report No. 53 in Report of Committees, Second Session, Eighteenth Congress. (Abst., p. 732.) Alan}" others appear in the evidence. C. Conclusions reached by historians of recognized standing after making a study of the sources of material in regard to the naviga- bility of the Des Plaines River. A. — Parkman, LaSalle and the Discovery of the Great AXest, 69. B. — Justin WinS'or, Mississippi Basin, page 24. C. — L. Ferrand, in Hart’s American Nation, Vol. II, 26. D. — Beuben G. Thwaites, in Wisconsin Historical Collections, XVI, 672. (Abst., pp. 734-748.) Others appear in the evidence. 2. HISTORICAL MATTER CHRONOLOGICALLY ARRANGED. 1673 . — Marquette and Joliet made a voyage from St. Ignace, on the Straits of Mackinac, through Lake Michigan and Green Bay, descending through the Fox Biver, Wisconsin and Mississippi Bivers, as far as the Arkansas, and then ascending the Missis- sippi and up the Illinois and up the Des Plaines to Chicago. Marquette’s account, 59 Thwaites’ Jesuit Belations, pp. 161-7. (Abst., pp. 685-699.) 89-161 (Alvord’s Ex. 7, Abst., p. 712; Parkman’s ‘‘La- Salle and the Discovery of the Great West,” “Alvord’s Ex. 14, pp. 51-65, Abst., p. 733). Winsor describing this trip says : “After ascending the stream, he entered the Illinois Biver. which he designated as the Divine or Outrelaise, in compli- ment, it is supposed, to Frontenac’s wife, a daughter of La- Grange Trianon, noted for her beauty, and Mademoiselle Outrelaise, her fascinating friend, who were called in court cir- cles “les Divines” (Parkman, Discovery of the Great West, p. 154). Upon the wmst bank of one of its tributaries, the Des Plaines Biver, there stands above the prairie a remark- able elevation of clay, sand and gravel, a lonely monument which has withstood the erosion of a former geologic age. It was a noted landmark to the Indians in their hunting and to the French voyagers 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 others that he marked on his map have been forgotten.” (4 Winsor, Narrative and Critical History of America, pp. 178-179.) (Abst., p. 974.) Marquette’s account of this voyage states: “We therefore re-ascended the Mississippi, which gives us much trouble in breasting its currents. 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 niothin^' like tliis riven* llial vv(‘ (mien*, as regards its fertility of soil, its prairies and Woods, its cattle, elk, deer, wildcats, bustards, swans, diu'.ks, parroepuds and even beaver. There are many small lake's and rivers. 'Idiat on which we sailed is wide, deep and still, for 05 leagues. In the spring and during part of tlie snmmer there is only om^ portage of half a league.’^ (Lake Michigan.) (59 Jes. Reh, 161.) (Abst., pp. 686-7.) > Tills narrative is also translated and published by Chief Justice Breese in his Early History of Illinois, pp. 235-270. This passage occurs on p. 269. (x\bst., p. 737.) 1674 . — ^Joliet returned to Quebec and reported their discoveries to Governor Frontenac, to his friend, Father Dablon, who, Au- gust 11, 1674, wrote the relation which bears his name, enti- tled “Relation de la discouverte de plusieurs pays situeg an midi de la Nouvelle-France faite en 1673.” He says : “The fourth remark concerns a very great and important advantage, which perhaps will hardly be 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 pass from the foot of the Lake of the Illinois to the River Saint Louis., Here is the route that wTuild be followed: The bark would be built on Lake Erie, which is near Lake Ontario; it would eas- ily |>ass 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.” (Abst., p. 713.) 1674 . — And Governor Frontenac, re])orting Noveml)er 14, 1674, to the French Government, said : “Sieur Joliet, whom Monsieur Talon advised me on my ar- rival 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 tlirougli the beautiful 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 commiini- ' cates with Lake Erie. * * * j send you, by my secretary, , the map he has made of it.” 'i. (Abst., p. 1661.) Joliet at that time made two maps, wliieli are described by Park- man in tlie ^‘Discovery,” pp. 452-d, as follows: 1674. — '‘Ot fai- .greater interest is the small map of Louis Joliet, made and presented to Count Frontenac after the discoverer’s i-eturn from the Mississippi, it is entitled Carte cle la de- coiiverie du S. Joliet ou Von voit La Communication du fleuue St. Laurens aiiec les lacs frontenaCj Erie, Lac de Enrons et Illinois. Tlien succeeds the following, written in the same an- tiquated French, as if it were a part of the title: ‘Lake Fron- tenac (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 (Michigan) from the head of which one crosses to the Divine River (Riviere Divine; i. e., the Des Plaines branch of the River Illinois), by a irortage of a thousand paces. This river falls into the River Colbert (Mississippi), which discharges itself into the Gulf of Mexico.’ (Abst., pp. 738-9.) * * Joliet, at about the same time, made another map, larger than that just mentioned, but not essentially diP ferent. * * *’’ The latter Joliet map is republished in 59 Jes. Rel., p. 86, and in 4 AVinsor, p. 208, and is reproduced in evidence as Alvord Ex. 1 (Abst., p. 1916). It represents the Illinois River with the name Riviere de la Divine ou L'Outrelaise, as a continuous line of river from Lake Michigan to the Mississippi, and with the label “Portage” closely corresponding with the connection between the Chicago and Des Plaines Rivers. Of this map, Winsor says : 1674. — “Within a few years there has been produced a map which seems to have been made by Joliet immediately after his re- turn to Montreal. This would make it the earliest map of the Mississippi based on actual knowledge, and the first of a series accredited to Joliet. It is called Nouvelle decouverte de pin- sieurs nations dans la Nouvelle France en Vcmnee, 1673 et 1674. Gabriel Gravier first made this map known through an Etude sur une carte inconnue; la premiere dresse par L. Joliet en 1674, apres sons exploration du Mississippi auec Jacques Mar- quette en 1673. A sketch of it with a key is given herewith. The table in the sketch marks the position of Joliet’s letter to Frontenac, of which a reduced fac-simile is also annexed. “ ‘In this epistle,’ says Mr. Neill, ‘Joliet mentions that he had presented a map showing the situation of the lakes upon which there is navigation for more than 1,200 leagues from u;:} east to west, and that lie had given to tlie great river h(jyond the lakes, wliicli lie had discovered in the years 1f)7.‘)-1f)74, the designation of P>aiide, tlie family name of hk’ontenac. ” (Foot Note) : ^^The Jesuit Kelations call it the ‘Grande Riviers’ and the Messi-sipi; Marquette calls it ‘Conception’; and in 1674 it was called after Colbert. See an essay on the varying application of names to the western lakes and rivers in Hurlbut’s Chicago Antiquities.’^ 1674 - 5 . — Marquette returned to Chicago late in 1674, and win- tered “two leagues” from the lake, adjacent to the west fork of the south branch of the Chicago River; on March 29, 1675, he was driven from his cabin by flood waters and took refuge on a “hillock.” Father Dablon’s account of Marquette’s voy- age is given in 59 Jesuit Relations, pp. 185-211, and the fac- simile of portions of Marquette’s original Mms, Journal on pp. 212-15. The same is in evidence (Abst., p. 686). Says Father Dablon: “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 29th of March. He spent eleven days on the way, during which time he had occasion to sutler much both from his own illness, from which he had not entirely recovered, and from the very severe and unfavorable weather. ” (Id.) It was of this that Parkman says (“Discovery,” pp. 68-69) : “Ow the thirtieth of the month (March) they left their hut, tvhich had been inundated by a sudden rise of the river and carried their canoe through miul and ivater over the portage which led to the Des Plaines. Marquette kneiv the ivay, for he had passed by this route on his return from the Mississippi. Amid the rains of opening spring, they floated down the swoll- en current of the Des Plaines, by naked woods and spongy, 'saturated prairies, till they reached its junction with the main stream of the Illinois, which they descended to their destina- tion, the Indian town which Marquette calls Kaskaskia. Here, as we are told, he was received like ‘an angel from Heaven.’ He passed from wigwam to wigwam, telling the listening crowds of God and the Virgin, Paradise and Hell, angels and demons; and when he thought their minds prepared, he sum- moned them all to a grand council. “It took place near the town, on the great meadow which lies between the river and the modern village of Utica. Here five hundred chiefs and old men were seated in a ring; behind stood fifteen liiiiidred youths and warriors, and behind these again all the women and eliildren of the village.” 1677.-41 le next ina]) is described by I^irkman as follows: “Three years or more after (lalinee made the map men- tioned al)ove, another, indicating a greatly increased knowl- edge of tlie country, was made by some ])erson wliose name does not a])i)ear. This map, which is somewhat more tlian four feet long and about two feet and a lialf wide, lias no title. All the Great Lakes, through their entire extent, are laid down on it with considerable accuracy. Lake Ontario is called ‘Lac Ontario on de Frontenac.’ Fort Frontenac is indicated as well as the Iroquois colonies of the north shore. Niagara is ‘Ohute haute de 120 toises par on le Lac Erie tombe dans le Lac Frontenac.’ Lake Erie is ‘Lac Teiocha-rontoing, dit com- munement. Lac Erie.’ Lake St. Clair is ‘Tsiketo, ou Lac de la Ohaudiere.’ 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 written 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 (Ontario) ; and from this marsh into which they can enter there is only a distance of a thousand paces to the Kiver La Divine (Des Plaines), which can lead them to the River Colbert (Mississip- pi) and thence to the Gulf of Mexico.” Parkman, LaSalle and the Discovery of the Great West, p. 450. (Abst., p. 738.) In this year Fabano Thevenot published in Paris Marquette’s niap in connection with an account of his voyage. This also is reproduced in 59 Jes. Eel., p. 154, and is in evidence (Abst., p. 1917). It shows the route of the voyage of Joliet and Marquette, both going and returning, and bears the label “Portage” both at the passage from the Chicago to the Des Plaines and from the Fox to the Wisconsin. 1682, January 2-3. — ^LaSalle (as he afterwards writes): “After marching three days along the lake and reaching the division line called Chicago, were stopped — after a day’s march along the river of the same name which falls into the Illinois— hy the ice, which entirely prevented further navigation. This was the 2nd or 3rd of January, 1682.” (Abst., p. 733 et seq.) (2 Mag. Am. Hist., 552.) ‘^The snotvs hiaving clctainod mo some days at tli(j f)orta^^o of Chicago. This is an isthmus of land, at 41. dogroos 50 mirnitos N. at the west of the Illinois Lake, which is reached liy a (dian- nel formed by the function of several rivulets or meadow ditches. It is navigable for about two leagues to the edge of the prairie, a quarter of a league westward, ddiere is a little lake divided by a causeway made by the beavers about a league and a half long from which rims a stream, which after wind- ing about a half a league through the rushes, empties into the River of Chicago, and thence into that of the Illinois. This lake is filled by heavy summer rains or spring freshets, and discharges 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 Biver of Chicago does the same thing in the spring when its channel is full. It empties a part of its ivaters hy this little lake into those of the Illinois, and at this season, Joliet says, forms in the summer time a little channel for a quarter of a league from this lake to the basin ivhich leads to that of the Illinois, hy tvhich vessels can enter the Chicago and de- scend to the sea. This may very ujell happen in the spring, hid not in the summer, because there is no ivater at all in the river as far as Fort St. Louis, where the Illinois begins to be navi- gable at this season, whence it continues to the sea.’^ (Abst., p. 969.) ^ • ^^It is true 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 ivhich 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.” (Abst., p. 970.) Again he says (2 Margry, 31, Sept. 27, 1680), writing from an unnamed place (?) : ^‘From there (the foot of Lake Michigan) canoes only can navigate to the village of the Illinois.’^ (Abst., p. 971.) That is, LaSalle, having seen the river in Jannary, thought that it would not have water enough in July, and thought tlie sand bar at the mouth of the Chicago an insuperable obstacle. Joliet and Marquette, Jesuits, Jiad located their cabin on the Chicago in 1673-5 ; LaSalle coming later, in 1682, and greatly hos- tile to the Jesuits, was interested in the Fort Miami at St. Joseph, and built Ft. Creve Coeur at Peoria, and desired to turn the line of travel that way. It was the rivalry between St. Joseph and Chicago — hetween the Kankakee route and the Des Plaines route — between the southeast and soutliwest shores of Lake Michigan — ^al- ready begun — in whicli Chicago, the Southwest, and the Des Plaines route were successful. 1682. — In H emiepin\s account of the same trip (January, 1682) he exaggerates the difficulties as follows : ‘^The Creek (Chicago River) through which we went from the Lake of the Illinois into the Divine River, 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 im- possible to dig the ground because of the water, that country being nothing but a morass ; but supposing it were possible 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 village of the Illinois, except for canoes^ who have hardly water enough in the summer time; besides this difficulty there is a fall near the village.’’ (Abst., p. 972.) 1682 . — Membre, LaSalle’s companion, again says in his letter headed, River of the Mississippi, 3 June, 1682”: ‘‘Since his arrival at the place mentioned we left from there with M. DeTonte some days before M. De LaSalle, who joined us on Chicago, where another lot of his men joined us also, so that all were assembled at the beginning of January, 1682, at the place where 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 wintering somewhere else, but thirty leagues further down to the end of Lake Pimedy, where, finding navigation open, we descended in canoes said river to the Mississippi.” In that same volume, the reprint appearing on page 552 of the Magazine of American History, volume two. This shows that the “navigation open” and “beginning of navi- gation” of which LaSalle spoke, was “open” and “beginning” be- cause free from ice. Of the same matter, the history of Illinois by Moses, introduced by the other side, says : “There were four possible routes which could be used in go- ing to the Illinois from eastern Canada, the choice of whicli deDendod upon the stage ot watei* and s(‘asoii of tlui year, and tiift startiiii^ and the objective poinfts. '“ 1 . One of these was from Lake Michigan })y tlie Oalnrnet Uivers, which connect with Stony Brook, from wtiicli hy a short portage the Des Plaines was easily reached. Beck, in his Gaza- teer of 1823, says, in speaking of this route: ‘The distance is eighteen miles, and (2309) it is nearly on a level with the lake It is said boats have frequently passed through this channel to the Des Plaines, and when such is the case it is impossible in many places to say whether the current sets to the lake or to the Des Plaines. About half way between the lake and the Des Plaines, a feather will sometimes float one way and some times the other. ’ “2. By the Grand Calumet this stream, rising a few miles southeast of Lake Michigan, near what is now LaPorte, Indi- ana, 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 Michigan at a point formerly called Indiana City. This route cow nected ivith the Des Plaines, the same as route 1. “3. By the St. Joseph Eiver. Ascending this fstream about thirty-five miles, the head waters of the Kankakee Kiver 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 Des Plaines by the south branch, including a portage of four miles, was tirelve miles. The north branch was also doubtless sometimes used, although not so direct. Now, if a wayfarer 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 (2310) feasible of the above discov- ered routes, would be either the 1st or 4th. And whichever way was taken by Joliet and Marquette, 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: ‘March 31st: Here we began our portage more than eighteen months ago. ’ “The mariner desiring to reach Illinois from Mackinac, it would be nearer to proceed down the east side of Lake Michi- gan to the Grand Calumet, and up that stream connected with Route 1. But in 1679 LaSalle, being at Green Bay, appointed the mouth of the St. Joseph as a place of rendezvous for liis expedition in route for Illinois, and ordered 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 pursued, and not of the other; or, it being a ivinter, it may have been more a question of good ii'djjs for sleighs than of irater navigation. At alJ events, on this oeeasion, lie took tlie Kankakee route, and he doubtless icenf over the same course on his second trip in searching for Tontg. On liis tliird trip to the Illinois, ivhich teas also in the u'inter, l()81-2, he mentions the Chicago River; and as the Crand Calumet is plainly marked urith this name on his map, reeently discovered in Paris, and published by Margry, and as that (2311) would be a nearer and better route in the winter than the Kankakee, or that by the Ohicago River is now known’ it is fair to presume that w2ien he alluded to the ‘Chicago Route’ he referred to the passage of the Grand Calumet. “As early as 1698 a mission had been established among the Miamis, called Chicago. It is evident that this mission was on the route usually followed by travelers, wherever that was, along the southwestern shore of Lake Michigan. St. Cosme and party undoubtedly followed this route in 1699, as did Father Grevier the year following.” 1721 . — Sept. 17, Charlevoix wrote from the head waters of the Kankakee that there were two ways to go from St. Joseph or Ft. Miami, to the Illinois : “The first was to return to Lake Michigan (from St. Jo- seph), coast the south shore, and to enter the little River of Chicago, after going up it five or six leagues, then pass into that of the Illinois by means of two portages, the longer of which is but a league and a quarter. 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 inconvenience, and is not near so pleasant, but it is the surest. I departed yester- day^ from the forks of the river St. Joseph and I went up that river about six leagues.” (Abst., p. 972.) 1699 .— St. Cosine’s letter to the Bishop of Quebec, describing his voyage, is translated and reprinted in John Gilmary Shea’s Early Voyages Up and Down the Mississippi, and from it we make the following extracts : “We started from Chicaqw on the 29th and put up for the night about two leagues off, in the little river which is then lost in the xirairies. 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.” *********** “I set out the second of Xovember 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 sur- prised to see an inch of snow, and the next day the river frozen In sevoral ])iaces, yot W'O liad to break tlio ice {ind (]ra<^ the canoe l)e(‘aiise there was no water; this toreed iis to leaver our canoe and go in search of Mr. de Montigny, whom we overtook next day, the 5th of tlie montli, at Stag Island (Isle auxe Cerfs). They had already made two leagues portage, and there were still four to make to Monjolly (Mount Joliet), which we made in three days and arrived on the 8th of the month. From Isle a la Cache to Monjolly is the space of seven leagues. You must always make a portage, there being no water in the river except in the spring. ** ******** ^^On leaving Monjolly we made about two leagues to another little portage of about a quarter of a league. As one of our men, named Charbonneau, had killed several turkeys and geese in the morning and a deer, we did well to give somewhat of a treat to oiir people and let them rest for a day. ^A)n 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 laud, each with his pack, and we embarked for the space of ajeague and a half and stopped for the night at a little portage five or six larpens off. ‘^On the 11th, after making the little portage, we came to the Fiver Tealike, which is the real river of the Illinois; that' which we had descended being only a branch. AYe put all our affairs in the canoe, which two men towed, while Mr. de Tonty and we with the rest of our men marched on land, 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 and settled 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 em])ties into the Fiver of the Illinois. * * * “After having had to carry our baggage for three days, and put it all together in the canoe, the river being low and full of rocks, we arrived on the 15th of November at the place called the Old Port. It is a rock which is on the bank of the river about a hundred feet high, where Mr. de LaSalle built a fort which he abandoned. The Indians having gone to stay about twenty-five leagues lower dowry we slept a league below, where we found two Indian cabins. We were consoled to see one perfectly good Christian woman. ^ “From Chicagvv to the Fort they reckon thirty leagues. Here navigation begins, which continues uninterrupted to the Fort of the Permavevvi, where the Indians are now. We ar- rived there on the 19th of November. We found F. Father Pinet there, who not being loaded when they started from Chh cagou had arrived here six or seven days before us. ” ( “ Early Voyages Up and Down the Mississippi,” Shea, pp. 54-59.) 1783 . — Treaty between United States and Great Britain. 1783 . — Act of Virginia, Dec. 20, authorized the cession of tlie terri- tory to the United States. , 1784 . — ^Marcli 1 , Virginia ])eed of Cession to United States. 1787 . — Ordinance of July 13 organized the Territory Northwest of the Ohio and provided as follows : ‘‘Section 14, Art. IV. — * * The navigable waters lead- ing into the Mississippi and Saint Lawrence, and the carrying places between the same shall be common highways and for- ever 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.’^ 1789 . — Aug. 7, an Act was passed by the First Congress under the new constitution, entitled: “An Act to Provide for the Gov- ernment of the Territory Northwest of the Eiver Ohio,’’ be- ginning : “Whereas, in order that the ordinance of the United States, in Congress assembled for the government of the territory northwest of the Ohio may continue to have full effect, it is requisite that certain provisions should be made so as to adapt the same to the present constitution of the United States. Be it enacted, etc. (1 U. S. Stat. at Large, p. 50.) 1790 . - — Extract of manuscript of Mr. Reward, entitled “Journal of a Voyage made by Mr. Hugh Reward to the Illinois Coun- try, ’ ’ the original manuscript of which is the property of Mr. C. M. Burton of Detroit, and a copy of the same is found in the Chicago Historical Society. On page 22 of the Chicago Historial Society’s copy we find the following: ^‘Sunday, May 9th 1790 a Wind at South AVest inclining from the Land loaded & set off — our Course in a Bend nearly Nore IVest a Strong Wind from South South "West but we were cover ’d a little it being off the land with arrived at Grand Calamanuk & afterwards at Little Calamanuk the Course Nore West and from there arrived as by a North Course under sail at Chicago under reefed sail the wind very strong & in blasts missed the Entrance of the Eiver & were obliged to go about a mile pasc to land. “Monday, May 10th. 1790 — slept at Point Sables with the Cannes and began to hull corn and bake Bread & arrange everything for next morning left the cannots at Point Sables & took his Purogue bought of him 41 lb Flour and baked in 171 Bread for 125 & 29 lb i)()rk at 2-S, tlie whole arnoiinliri^- to L 5, 10, 8 paid him with 15 yds. 4-4- cotton — ^^Tnesdai/ May lltli 1790 — Engaged 5 Indians to lielf) ns over the Carrying places wit.li tlie periogue and [laid them 2 liandfulls of powder each — Diiarrier this morning very saucy & abuseful about getting Salt I promised to recjuite him for it — a Showery Day & Wind at West and Carrying place about 4 a Mile got over nearly at Mid Day — from thence passed in the Run & 'small League to the River deplain & course turning north South West a very wet afternoon & heavy thunder ar- rived at the River deplain said to be 15 miles & encamped. Wednesday, May 12, 1790. — Sett off from the River deplain which runs from the North our Course down the Illi- nois River South West passed La Croix & after Les Arbes & a pass' that goes in a small Lake to the South East & by this pass its said to be 3 Leagues to Little Kenomuk on the Lake this about 11 o ’clock — passed the petite & Grand Tosil & after- wards the long Rapid & came to the Village of Mount Juilliette the Course South West a high hill at West resumbling Fort Lernoult at Detroit passed afterwards the Lake following & camped — Here Morras informed me not to be surprised that there was so much Danger he would not return with me^ — Lam- orand said he was to make the Voyage with him & if he did not return he would not — ''Thursday, May 13, 1790 — finding the Goods not dry enough and very warm weather coming on remain’d to dry them better in the Afternoon threatened Rain we were obliged to take them in — "Friday, May Idtli, 1790 remained finished drying the Goods and pack’d up — Belhumour a Frenchman settled among, the Indians stop’d to pass the Villiage at the Forks with us near night a heavy Thunder Storm. "Saturday May 15th 1790 — loaded & set off passed the Villiage at the Forks the Chief & Villiage in feast & good hu- mour gave him a little Tobacco & powder & he said he should be ready to assist me bought 5 sa(*s of Corn for 4 shirts & powder & paid Belhumour with powder he was contented but beg’d 2 white shirts on Credit ’till my Return which I gave him, he lent me his dog & a Tea Kettle & gave me Nine Eggs & a Leg of Venison — passed the Entrance of the River Theakekie about mid day & from here arrived at the rapid of Demi Charge or Rapid of M 10 Ijeagues from Theakakie carried over a part & passed the periogue camiied at the Bot- tom Elegant Land with plum Tree Oak Ilickor^^ &c. small Sides high Banks.” (The original was produced in court and proved to be in the handwriting of Howard by Prof. Alvord of the University of Illi- 171 ' iiois, who foiirid tlio record of lleward's original power of at- torney transcribed in the court records of Cahokia in English in his own hand, because, as the record states, Ileward was the only luan there who could write in English.) (Abst., p. 743.) 1790 . — Governor St. Clair (for wliorn St. Clair County, Illinois, is named). Governor of the Northwest Territory, reporting to President Washington, wrote : ‘^The commerce of the Illinois country is of some importance in itself, l)ut more so w^hen 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 more intimate, and favors a commercial intercourse which, though illicit, might be carried on by the citizens of America wuthout risk. It is carried on at present without risk, but is, unfortunately, almost entirely in the hands of the Brit- ish. Even much the greatest part of the merchandise for the trade of the Missouri Elver is brought from Michlimackinac by that of the Illinois, partly by the Spanish subjects themselves, and partly by British traders. The manner is this : The Span- ish subjects either introduce them at once, in consequence of a secret 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 at- tends the introducing them into their own country upon them- selves: The furs in which these goods are generally paid for (deer skins answering better than furs at the New Orleans market), are carried to Canada by the same communication; that is to say, up the Illinois Elver, up the Chicago, and there by a small portage into Lake Michigan, and along that lake to Michilimackinac ; or from the Chicago up the river Au Plain, and by a portage into the same lake. ^ ^ In the 'Spring of the year the waters of the Michigan and the Chicago rise each to such a height that the intermediate space is entirely overflowed, and is passable by the vessels in use there, which are bark canoes, but which carry a very con- siderable burden and are navigated by three or by five per- sons.” From the St. Clair Papers, Volume II, p. 174 (et seq.) 1793 — 1797 . — Imlay’s Topographical Description of North America. (Dub- lin, 1792-3; reprinted New York, 1793; reprinted by Debrett, London, 1793; 3d edition, London, 1797.) 17:^ Inilay’s letter No. 5 (3 Kd., p. 71-2) states tlie following: “ I have inentioned that it is about 220 from th(‘ month of the Oliio up to the Mississippi to the mouth of th(‘ Missouri and about 20 from thence to Illinois, w'hicli is naviga})le for hat- teaux to its source. From thence there is a })ortage only of 2 miles to Cliickago, which is also navigable for batteaux to its entrance into Lake Michigan, which is a distance of Ifi miles. This lake affords communication with the Eiver St. Lawrence through Lake Erie, passing Niagara by a ])ortage of 8 miles. The lakes Erie and Michigan are navigable for vessels drawl- ing 6 and 7 feet water. This is one of the routes by which the exchange of commodities between the northern and southern parts of this empire will be facilitated.’^ (Abst., p. 727.) 1795 . — Treaty of Greenville (a town in the Northw^est Territory, near the line between Ohio and Indiana), Dec. 9, 1795. ‘‘Treaty of Peace between the United States of America and the tribes of Indians called the Wyandots, Delawares, Shaw - anese, Ottawas, Chippewas, Patfawatamies, Miamies^ Eel Bir- ers, Weas, Kickapoos, Piankeskan's and Kaskaskias. *********** ^‘The said Indian tribes, do also cede to the United States the following pieces of land, to-wnt : *********** “14. One piece of land six miles scpiare, at the mouth of (hhcago Eiver, emptying into the south w^est end of Lake Michi- gan, wdiere a fort formerly stood. 15. One piece tw^elve miles sciuare, at or near the mouth of the Illinois Eiver, emptying into the Mississippi, lb. One piece six miles square, at the old Peorias fort and village, near the south end of the Illinois lake on said Illinois Eiver. *********** ‘L\nd the said Indian tribes w^ill allow" to the people of the United States a free passage I)y land and l)y w"ater, as one and the other shall be found convenient, through their country along the chain of posts herein])efore mentioned. Again, from the mouth of the Chicago, to the comynencement of the portage, between that river and the Illinois, and down the Illinois Biver to the Mississippi ; also from Fort Wayne, along the ])ortage aforesaid, which leads to the Wabash and then dowm the Wa- bash to the Ohio. And the said Indian tribes will, also, allow to the people of the United States, the free use of the harbors and mouths of rivers, along the lakes adjoining the Indian lands, for sheltering vessels and boats, and liberty to laud their cargoes where necessary for their safety. *********** (Signed by certain chiefs and warriors of the tribes enumer- ated in the title.) American State Papers, Class 3, Indian Affairs, Vol 1. (Abst., pp. 760-762.) 174 1796. — A('t ()[ May 18, (‘iititlod, Act providing for the sale of the lands ot the United States in .the territory northwest of the River Ohio and above the month of the Kentucky EiverA^ ^‘Sec. 9. — * * * All navigable rivers within the territory to he disposed of by virtue of this Act shall be deemed to be and remain public highways^’ (1 U. S. Stat. at L., Chap. 29, p. 468.) 1800. — Act of May 7. The Indiana territory, including Illinois, was separated from the remaining territory northwest of the Ohio. (2 U. S. Stat. at L., Chap. 41, p. 58.) 1801 - 1811 .— Dhe Navigator’’ was published (approximately one edition a year). It is entitled ^‘The Navigator containing di- rections for navigating the Ohio and Mississippi Rivers.” It is commonly known as ^'Drake’s Navigator,” and the preface to the twelfth edition, dated February, 1811, describes it as ‘‘being the eleventh since the year 1801.” (Twelfth Edition — ^Pittsburgh — Printed and published by Cramer & Spears. Franklin Head Book Store, Wood street, 1824.) The following extract which relates to the Illinois and Des Plaines Rivers called in this extract “The Illinois” is found on page 113, as follows : ‘ ‘ The following are the principal rivers which empty into the Mississippi on the eastern side, from below the Falls of St. Anthony, with distances from river to river, and how far they are navigable, viz. : Illinois, 160, navigable about 450 and is 400 yards wide at its mouth, between a branch of the Illinois and Chicago River, which empties into Lake Michigan, there is a portage of two miles. From this portage to the lake is a batteaux navigation of 16 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 of land carriage in the distance of 4,000 miles; the greatest stretch of inland navigation known in the World. “The 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 4 miles into lYood Creek ; thence into Lake Ontario ; thence up that lake and the Niagara River to Queenstown 7 miles below the Falls of Niagara ; thence ten miles land carriage around said falls of Chippeway ; thence up the river into Lake Erie and through that lake into Lake St. Claire, thence into Lake Huron, through Lake Mi chi- 175 gan and into ilie (.hieago Iviver; niontioiied above; tbcneo down the Illinois and Mississipy)! Rivers.” 1804 . — Act oi* Congress, Marcli 120. ‘C\n Aiti making i)rovision for the disposal of the public lands in tlie Indiana Territory and for otlier purposes. ’ ^ ^‘Sec. 0. — * * * All the navigable rivers, creeks and wa ters within the Indiana Territory shall be deemed to be and re- main public highways.” 1807 . — August 7-8, Robert Fulton made the first trip of the Cler- mont, from New York to Albany, the first successful bit of steamboat commerce. The boat was built on salt water, on an ocean model, and was 130 feet long, 18 feet wide, 7 feet deep and of 160 tons burden. (15 Am. Cyc., 353.) 1809 . — Act of Congress, February 3. Created the Illinois Terri- tory. ‘‘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.” This was after the ordinance of 1787 had been in force for more than 20 years, and, while it changed navigation, it did not change the law which made the streams that were navigable by previous methods, forever free public highivays. 1816 . — August 24. Treaty of the United States with Ottawas, Chip- pewas and Pottawatamie Indians. (Treaty of Black Par- tridge). Secured a cession to the United States of a tract of land 10 miles wide on each side of the Des Plaines and Illinois from Fox River to Lake Michigan (the tract one-half of which * afterwards, under the selections made in pursuance of the Act of Congress of 1827, became canal lands.) 7 U. S. Statutes at Large (Indian Treaties), pp. 146-7. The foregoing is the first official use of the name Dies Plaines. Theretofore the term “Illinois” had long been used to cover the Des Plaines as well as the lower river. 1816 - 1817 . — U. S. Survey (Maj. S. JI. Long) — “respecting the practicability of uuiting by a canal the waters of the Illinois River and those of Lake Michigan.” “The River Des Planes is a small stream rising in the low lands, bordering upon the west side of Lake Michigan, and has its ^eiieraJ (‘ourse in a soutli\vestei‘ly direction. Tlie valley of this I'iver has an average width of about one mile, and is ter- minated on both sides by regmar l)anks nearly parallel to each other, extending along tlie river about thirty miles from the head of the Illinois, in ascending this river also, the banks or bluffs gradually decrease in height, being, as before mentioned, about 100 feet high at the mouth, and only 20 or 25 at the dis- tance of 50 miles higher up the river, where, instead of main- taining their parallel direction, they form 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, en- circling 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 rapids or ripples that make their appearance only in times of low water. In every other part it has the ap- l)earance of being a chain of stagnant pools and small lakes, affording a sufficient depth of water for boats of moderate draught. ‘‘In the flaf prairie above mentioned is a small lake about 5 miles in length and from 6 to 50 or 40 yards in width, communi- cating both with the River Des Planes 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 Indians, for the purpose of getting their boats across in that direction, in time of high water. The distance from the River Des Planes 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 5 miles in the driest season ; but in a wet season, boats pass and repass with facility be- tween the two rivers.’’ **********•«= “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 con- struction of it would be attended with very little expense, com- pared with the magnitude of the object. The water course, which is already opened between the River Des Plaines and Chicago River, needs but little more excavation to render it sufficiently capacious for all the purposes of a canal. It may be supplied with water at all times of the year, by constructing a dam of moderate height across the Des Plaines, which would give the water of that river a sufficient elevation to supply a canal extending from one river to the other. It would be nec- essary. also, to construct locks at the extremities of the canal. 177 that eoinauinicating' witli Chicago River, h(‘ing ('aleulatcnl to ele vate about six feet and that communicating witli i)es Plaines river about four feet. ‘^To render the Des Plaines and Illinois navigable for small boats and flats requiring but a small draught of water, nothing 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 Illinois 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. ’ ’ EXTRACT FROM EXECUTIVE DOCUMENT NO. 17, STATE PAPERS, IST SES- SION, 16th CONGRESS. Extract from a report of Stephen H. Long to George Graham, Esq., Acting Secretary of AVar, dated AVashington, Alarch 4th, 1817: a* * * where instead of maintaining their parallel direc- tion, they form nearly right angles with the course of the river, that on, the right taking an easterly and that on the left a north- westerly 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 iii this vicinity. The river throughout the above mentioned distance has 4 or 5 short 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. ’ ’ *********** Continuing on page 6 : ^Mn 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 Des Plaines 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 Indians, for the purpose of getting their boats across in that direction, in time of high water. The distance from the River Des Plaines to Chicago River, by this water course, is about 9 178 miles; through the gi'eater part of which there is more or less watei-, so that the portage is seldom more than miles in the driest season, hut in a wet season boats pass and repass with facility between the two I’ivei's.” * ‘ * * * * * * * * * * Also on page 7 : ^A’hoposed canals and roads. A canal uniting the waters of the Illinois witli those of Lake Mi(‘higan may l)e 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, conijiared with the magnitude of the object. The water course which is already opened l)etween the Kiver Des Pfaines and Chicago River needs but little more excavation to render it sufficiently capacious for all the purposes of a canal. * * Also on page 7 : ‘‘To render the Des Plaines and Illinois navigable for small boats and flats requiring but a small draft of water, nothing 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 clear- ing away the loose stones from the bottom and forming banks riveted with stones two or three feet high, on each side of the sluice. Then, a water communication between the Illinois and Lake Michigan may be kept open at all times sufficient to am swer all the purposes for which a canal will be wanted, for many years to coine.’^ (Page 8, Report of Graham & Phillips.) “Kaskasia, April 4th, 1819. “Sir : In addition to the notes of Mr. Sullivan, the surveyor, which describes 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 Illinois and the Michigan Lake. “By reference to the map herewith forwarded, it will be seen that the little River Plein, coming from the northwest, aproaches within ten miles and a quarter of Lake ^Michigan, and then bending to the southwest unites with the TheaJdki, at the distance of about fifty miles, and forms the river IHi- iwis. “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 Dearl)orn they are, in like man- 179 nor, seen on tlio hank of tlio Plein. Standing on any int(‘rnio- diate point, between the lake and the river, and the judgment is at a loss to say to which side the ground declines, and whether the level of the Plcin or the lake is the highest. It was, however, determined, from certain data, that the level of the river wth of July, 1787, hehveen the original States of the territory northwest of the River Ohio, excepting so much of said articles as relate to the boundaries of the States therein to be formed. And, provided also, that it shall appear from the enumeration directed to be made by the Legislature of the said territory, that there are, within the proposed State, not less than forty thousand inhabitants.” 1818 . — August 26, 1818. Constitution of Illinois. (111. L., 1819, App., p. 1.) (1 Starr & Curtis, 2 Ed., p. 55.) ‘‘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 laiv 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 Representatives in convention, ordain and establish the following Constitution or form of govern- ment, and do mutually agree with each other to form them- selves into a free and independent State, by the name of the State of Illinois.” 1818 . — Uec. 8. Resolution of Congress, entitled: RESOnUTION DECLARING THE ADMISSION OF THE STATE OF ILLINOIS INTO THE UNION. DECEMBER 3, 1818. Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled. That where- as, in pursuance of an Act of Congress, passed on the eight- eenth day of April, one thousand eight hundred and eighteen, entitled ‘An Act to enable the people of the Illinois territory to form a Constitution and State Government and for the ad- mission of such state into the Union, on an equal footing with tlie original States/ tlie people of said territory did, on the twenty-sixth day of August, in the present year, by a conven- tion called for ’that purpose, form for themselves a Constitu- tion and State Government, which Constitution and State Gov- ernment so formed is republican and in conformity to the prin- ciples of the articles of compact between the origmal states and the people and the states in the territory northwest of the River Ohio, passed on the thirteenth day of duly, one thousand seven hundred and, eighty-seven. ‘^Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled. That the State of Illinois shall be one, and' is hereby declared to be one of the United States of America, and admitted into the Union on an equal footing with the original states, in all respects vdiatever.” (3 U. S. St. at L., j). 536.) 1819 . — K. Dana’s ‘‘Bounty Lands” and “ Hoads and Houtes by Land and Water,” published at Cincinnati by Looker, Keynolds Company, printers : Page 49: “DESCRIPTION of the Principal ROADS AND ROUTES By Land and W ater. 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.* (See foot notes.) CINCINNATI : Looker, Reynolds & Co., Printers. 1819.” Page 51: “The author has for more than twenty-eight years, trav- ersed, by the principal routes and roads, over almost every section of the United States, and the southern parts of the two Canadas, bordering on the extensive range of the Great Lakes, and constantly kept an itinerary, where he has noted, from day to day, the routes and distances from place to place, by land and water; correcting: his own es'timates bv 18 :^ that of oil'.or (‘X|)(‘ri(‘ri(‘(‘(l, men, siicli as liiinl(‘is, Tiidiaii agents, iiun-ehaiits, ii-avelUn-s and ()fti(‘(‘rs of tin* arany, as well as by the routes and roads dellrnaitcHl on rjia})S, and published in newspa])ers, alinana(*s, pamphlets, voyag(‘s, itineraries, statistical or geograi)bi('al sketches. Indeed h(‘ has resorted to every expedient, that could enlarge or ('oi*- rect his information on the snl)ject, except actual survey and admeasurement. ‘‘Having at length matured his system, by arranging and grouping his routes into wliat 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 two hun- dred and sixty routes and roads ; some by land, some by water, and others by land and water, among which are included sev- eral new and extensive routes never before published. The *Peter G. Thompson’s “Bibliography of the State of Ohio” (Cin- cinnati, 1880) (not introduced below), says of this book: “Dana, (E.). Description of the principal Beads and Boutes by Land and Water, through the Territory of the LTnited States; extending from the province of New Bruns- wick in Nova Scotia to the Pacific Ocean; Embracing the main Interior and Cross Beads between the Towns and Places of Most Note. By E. ])ana. “Cincinnati: Looker, Beynolds & C^o., Printers, 1819.” “Pages 97-99 give the Beads in the State of Ohio with the Distances from Place to Place along them. “This little work, which is scarce, was never ])ublished in a separate form. It ai^peared in the same volume with a work entitled ‘A Description of the Bounty Lands in the State of Illinois,’ B}^ E. Dana, (hncinnati, 1819, and forms ])p. 49-108 of the said work. “Priced, Cin’ti, 1878, hf. nior., $8.50.” “Dana, (E.). Geographical Sketches of the Western Country; designed for Emigrants and Settlers; Being the re- sult of extensive researches and remarks. To which is added a summary of all the Most rnteresting Matters on the Subjecd,, including a Particnlar Description of the unsold Public Lands, collected from a variety of Authentic Sources, Also a List of the Principal Boads. By Pi. Dana. “Cincinnati : Looker, Beynolds & Co., 1819.” “The work contains the information accpiired by the author during six years s})ent in the West. The author was employed by emigrants desirous of removing to the West to select and ])nrchase for them sites for permanent settlements. Being an uneducated man, the work was pre|)ared for the press by Beuben Kidder. Pages 64-87 relate to Ohio.” 184 greater part of all these routes the author has liimself actually traveled over, noting down, as he passed, the distance from place to place. (Ahst., p. 716.) A l)ook soinewliat similar to Dana’s, which wms not produced at the hearing, hut discovered afterwards, is the following: 1819.— Van Zandt (N. B.). Full Description of* the Soil, Water, Timber and Prairies of each Lot or Quarter Section of Military Lands between the Mississippi and Illinois Rivers, 8vo, pp. 1313, Washington, 1818. On page 92, it says : ‘Bias four or hve short rapids * * * In every other part has appearance of a chain of stagnant pools * * * affording a sufficient depth of water for boats of moderate draught. ’ ’ This is a quotation from Major Long’s Report. It is significant of the immediate, wide diffusion of Long’s Report that its state- ments should be thus reproduced in the same year in which it was published. 1819. — In Publication No. 3 of the Illinois Historical Library (puR- lished by authority of the Board of Trustees of the Illinois State Historical Library, 1903), we find, since the trial of the case, the following: (p. 150.) ^‘Travels in Illinois in 1819. Ferdinand Ernst. (The fol- lowing pages are taken from a small book printed in the Ger- man language now in the public library of Belleville, 111., en- titled ‘Observations Made Upon a Journey through the In- terior of the United States of North America in the Year 1819, by Ferdinand Ernst.’ It was published at Hildesheim, in Hanover, in 1823, and is now translated into English in 1903 for the first time in this country for the Illinois State Histori- cal Library, by Prof. E. P. Baker, of McKendree College. The extracts here presented embody the observations of the traveler in the State of Illinois and vicinity of St. Louis, Mis- souri. The trustees of the State Historical Library contem- plate publishing the entire works in the near future. J. F. S.)” (157) Vandalia, Sept. 10, 1819. (161) ‘AVe continued our journey northward and soon reached (162) the charming banks of the Onaquispasippi. (Satz.) Alas! this river was likewise too high to be crossed on horseback. 185 .Pages 57 and 58. ‘‘noUTFi NO. II. liY^ WATFin Fi‘oiu (Quebec* *, Ijower (biiiada, to New Orleans, by Monti'eal, tlirong’li Lakes Ontario, Lrie, ilnron and Michigan; tbence up the Chicago, and over the Portage to and down the River Plein, a liead hrancli of the Illinois, and down the latter to the ^lississippi.” (Ahst., p. 718.) The author then gives a list of the various stations or prin- cipal points along the route above indicated, with the dis- tances between, up to Mackinaw^ straits, which he shows as be- ing distant from Quebec, by this route, in miles 1,164 The route then proceeds : ‘LVeross Lake Michigan to Fort Dearborn 270 Up Chicago River, Ind lOf Over the jDortage up the Plein to the junction with the Theakiki, the main head branches of the Illinois . . 15f Total 1,460’’ Thence down the Illinois to the' Mississippi and down the latter river, showing numerous intermediate points with the distances between, to New Orleans, which the author gives as distant from Quebec, by the route indicated, in miles : ,3,151 Here a rather passable road runs northward to Fort Clair (Clark) on Lake Peoria. The soil northward on (of) the San- gamon has far more sand in it than in the remaining part of the State; and the only thing that might be feared would be that, on that account, its exceptional fertility in time might decrease. But this point of time is certainly very far off. The Onaquispasippi is still a more beautiful river than the Sangamon, for it has all the characteristics of the latter but in a higher degree. It is likewise navigable for medium sized vessels. * * One of the greatest obstacles that may retard the rapid population of this district is the scarcity of wood; yet there is sufficient timber for a moderate population and the stock of forest wall soon greatly increase now that the destructive prairie fires will be stopped. Likewise the rivers, Sangamon and Onaquispasi])pi can greatly facilitate the im- portation of this article. These two rivers will not only open up a market for all produce in the direction of St. Louis and New Orleans, but their proximity to the Illinois River will in time furnish this region with another very promising pros- I^i^e 14: “SiK'li lias been the labol’ioiis attention of the author in ae- (inirin^ a niinnte knowledge of the Bounty lands, ])y tracing the lines of the i)n})lic. surveys, llie various streams and water ('ourses, and in critically exf)loring almost every i)art of that region, as well as by diligent enquiry of public surveyors, and other intelligent men, entitled to credit from their known ac- (luaintaiK'e with the lands, that lie feels a strong confidence in the correctness of his descriptions.” 1819.- ()ct. 1(). Flint’s “Ijetters from America.” (From Jef- fersonville, Ind. Published, Edinburgh, 1822.) lieprinted h Thwaites Early Western Travels, }). 186. (Ahst.; ]). 942.) “At a period not far distant, a communication between Lake Erie and Illinois liiver may he opened through the River Plein, which empties itself into the lake. Crafts are said to have already passed out of the one river into the other.” ( Footnote in that woek) : “A canal connecting Illinois River with Lake Michigan was first suggested liy Joliet in 1673, when he and Marquette re- turned by that route from their exploration of the Mississippi River. Such a canal was included in Gallatin’s system of in- ternal improvements, jiroposed in 1808. President Madison laid the matter before Congress in 1814; Calhoun, as secretary of war, again called attention to it in 1819 ; and for twenty years it found a place in the governor’s annual message. Finally (1836) its constinction was undertaken by the State, aided by large congressional land grants. The Illinois-Mich- igan Canal, extending from LaSalle on the Illinois River, to Lake Michigan at the mouth of the Chicago River, one hundred miles in all, was completed in 1848, and opened with much ceremony. In 1882, the State ceded the property to the United pect by the lakes to New York City by means of the canal now in progress connecting that city and Lake Erie. “It is also a very easy thing to unite the Illinois with Lake Michigan by a 12-mile canal — even now, in the case of high water, the transit there is now made. By means of this canal then inland navigation wmuld De opened up from New York to New Orleans, a distance of 3,900 English miles. Such an in- ternal waterway not only does not exist at the present time in the whole world, but it will never exist anywhere else. Be- sides, this State enjoys the navigation of its boundary and in- ternal rivei*s amounting to 3,094 miles, and all are placed in communication with each other through the Mississippi. In short, I do not believe any one State in all America is so highly favored b\" nature, in every respect as the State of Illi- nois.” 1«7 States, ill the luvpi' tliat the latter woiild.eiilar^-e it for a sliip eaiial. P>iit the next ste]) mis taken hy the Chiea^o Sanitary- l)istri(*t, wITkOi, at a eost of about $^^5, 000, 000, has (*orn[)!etecl the C'^liieago Drainage (kinal for the lietter disposal of the semige of (^hieago. This canal was opened January 2, 1900, after seven years spent in its construction. Flint’s reference is to Des Plaines (Plein) River. Ed.” 1821 . — ‘‘(Jeorge W. Ogden’s Letters from the West,” pnlilished. New Bedford, 1823. (Abst., p. 730.) ‘^The Illinois is the largest that is peculiar to this State. This is a noble river, rising near the south end of Lake Michi- gan. Its head branches are called the Plein, and Theakakee or Kankakee. The Plein is navigable within two miles of Chi- cago River of Lake Michigan, and boats are said to have passed loaded from one to the other at high water, the dis- tance between them being a marsh and in high floods it is completely inundated.” Letter No. 5, p. 53. 1821 . — United States Surveyor John MMlls surveyed the Govern- ment lands bordering the Des Plaines River. In doing so, he .meandered the stream and made this note thereof : ^‘Meanders doAvn the N. side of Laplain through sect. 1, T. 38 N., R. 12 E., from the head of navigation. * * * Oct. 17, 1821. John Walls.” In doing this, he was performing an official duty required by the work of the United States Land Survey. (The Act of Congress of Mav 18, 1796, required that every surveyor shall note in his field book the true situation of all ' mines, salt licks, salt springs and mill seats which come to his knowledge ; all water courses over which the line he rims may pass; and also the cpiality of ihe lands.”) 1823 . — Major S. H. Long’s ex])edition to the source of St. Peter’s River, Narrative. (Published in 1825 by W. H. Keating, * * * Geologist and Historiographer to the Expedition.) Page 162 ‘Hn the afternoon of the fifth of June, we reached Fort Dearborn, (Chicago). * * * At Fort Dearborn we stop- ped for a few days with a view to examine the country and make further {ireparations for the journey to the Missis- sippi.” ***** I’age 163 ‘^Fort Dearborn is situated in the State of Illinois, ou the south bank and near to the mouth of Chicago River; the boundary line between this State and that of Indiana strikes the western shore of Lake Michigan ten miles north of its southermost extremity, and then continues along the shore of the lake until it reaches the forty-second and a lialf degree of iiortli latitude, along wliieli it extends to the Mississippi. The post at Chicago was abandoned a few months after the party visited it. * * *’> Page .1()5 * * The ])ro visions for tlie garrison were for the most part conveyed from Mackinaw in a schooner, and some- times they were brought from St. Louis, a distance of three hundred and eighty-six miles up the Illinois and Des Plaines Rivers/^ ***** Page 167 ‘^Tlie south fork of Chicago Kiver takes its rise about six miles from the fort in a- swamp which communicates also with the Desplaines, one of the head branches of the Illinois. Having been informed that this route was frequently travelled 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 River in order to observe this interesting division of waters. We accordingly 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 so for about three miles when we reached a sort of swamp designated by the Canadian voyagers under the name of la petit lac. Our course through this swamp, which extended for three miles, was very much impeded by the high grass, weeds, etc., through Pirogue: A canoe made from the trunk of a tree hollowed out. Pirogues are sometimes large, decked, rigged with sails, and furnished with outriggers. In Louisiana the terms pirogue and canoe are used inditferently. See periagua, 2. number of officers with three hundred and twenty soldiers, twenty women and seventeen children left New Orleans on the 27th of February, under the command of an officer named Loftus, in ten boats and two pirogues. Gayarre Hist. Louisiana, II, 102. ^‘The earliest improvement upon the canoe was the Pirogue, an invention of the whites. Like the canoe this is hewed out of the solid log; the difference is that the pirogue has greater width and capacity, and is composed of several pieces of timber — as if the canoe was sawed in two equal sections and a broad flat piece of timber inserted in the middle, so as to give greater breadth of beam to the vessel. This was probably the identical process by which Furopeans, unable to procure planks to build boats, beiocan in the first instance to enlarge canoes to suit their purposes. James Hall, Notes on the M^estern States (1888), p. 218.” IV Century Dictionary, p. 4509. 189 wliieli our pirog’iie jmssed witli dirficulty. Observing tliat our ])rogress tlirouJ>li the fen was very slow, and the day l)eing eonsiderably advanced, we landed on the north bank and con- tinued our course along the edge of the swamp for about three miles until we reaclied the place where the old portage road meets the current, which was here very distinct towards the south. We were delighted at beholding for the first time, a feature so interesting in itself but which we had afterwards an opportunity of observing frequently on the route, viz., the division of waters starting from the same source and running in two different directions, so as to become the feeders of stream's that discharge themselves into the ocean at immense distances apart. Although at the time we visited it, there was scarcely water enough to permit our pirogue^ to pass, we could not doubt that in the spring of the Periagua: 1. A canoe made from the trunk of a single tree hollowed out; a dugout; used by the American Indians. ‘This at length put me upon thinking whether it was not pos- sible for me to make myself a canoe, or periagua, such as the natives of those climates make.’ Defoe, Robinson Crusoe, p. lO-t. (Nares.) “2. A vessel made by sawing a large canoe in two in the middle and inserting a plank to widen it. These were much used on the coast of the Carolinas in the eighteenth century, and even made vo^mges by open sea to Norfolk carrying 40 to 80 barrels of pitch or tar. One 30 feet long and 5 feet 7 inches wide is called “a small pettiaugua’’ in the Charleston (S. C.) “Gazette,” 1744. Such a boat was also used on the Mississi])pi and its tributaries where it is called pirogue and periogne. See ])ii’ogue. “3. A large flat bottomed boat Avithout keel but with lee4)oard decked in at each end but o]')en in the middle, propelled by oars or by sails on two masts Avhich could be struck. This was much used formerly in navigating shoal Avaters along the Avhole Ameri- can coast, and sometimes also oh the Mississipj)! and its affluents. “These Periaguas are long flat bottome’d boats carrying from 20 to 35 tons. They have a kind of forecastle aud a cabiu, but the rest open and no deck. They have tAvo masts Avhich they can strike, and sails like schooners. They row generally with two oars only. Francis Moore, A VoA^age to Georgia begnn in 1735, p. 49.” IV Century Dictionary, ]). 4395. “In the account of LaSalle’s last voyage by his brother. Rev. John Cavelier (in describing their journey through the southwest), he says: “ “They gave us a periaugiia in which Ave put 20 men and the 8 others took the horses by land.’ ” 190 year tlie route must be a vei*/ eligi])le one. Lieut. Hopson, who aecompanied us to tlie Des Plaines, told us tliat he had travelled it tvith ease, in a boat loaded with lead and flour. The distanee from the fort to the intersection of the Portage road and Des Plaines is su])posed to l)e about twelve or thir- teen miles; the elevation of Pie feeding lake above Chicago iviver was estimated at five or six feet; and, it is probable that the descent to tlie Des Plaines is less considerable. The Port- age road i'S about eleven miles long; the usual distance trav- elled by land, however, seldom 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 confluence of the Kankakee.” 1823 . — In a Gazetteer of the States of Illinois and Missouri by Lewis C. Beck, A. M., Published At Albany in 1823 by Charles E. and George Webster. ( )n page 19 : ‘‘The fact of an easy and during some seasons an uninter- rnpted communication between Lake Michigan and the head waters of the Illinois, was observed by the French at the first discovery of the country; and on this account they imme- diately erected trading establishments on different parts of the water. ’ ’ ***** “The information of traders and voyageurs was such as left no doubt of the existence of a natural canal between liake Michigan and the Illinois at some seasons of the year.” * * • * * ^ * On page 20: “A few years since the country south and west of Lake Michigan was explored by Messrs. Phillips and Graham. In a very interesting report which they made to the Secretary of "War, four different methods of forming a communication be- tween Lake Michigan and the Illinois were proposed, viz. : ‘ ‘ First, by uniting a branch of Chicago Kiver, which empties into Lake Michigan, and a branch of the Des Plaines, which runs a southeast course, and approaches within 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 sw^elled by lieaTW" falls of rain, actually unite, so that boats of S or 10 tons bur- den pass and repass from the Lakes to the Mississippi, throiCgh this natural water.” ***** “AVhat is called Chicago Eiver or creek is merely an arm of the lake, extending in a southwesterly direction three or 191 four inilos, and fod by ouG or two small str’eams coming from the north. Hence it is on, a level with the lake but at some seasons of the year has a gentle cur rent, _ owing to rains and freshets. On tliis stream about four or five miles from the lake, is a trading establishment, and here the portage com- mences, which, except in very dry seasons, is seldom more tlian d miles. From this portage to the Des Plaines, a dis- tance of four or five miles, is a swamp wliich is generally filled with water and is navigable. The height of the Des Plaines, at the point where the swiamp unites mth it, is calculated at from 8 to 12 feet. It approaches so near level that the view from the swamp to the lake is almost uninterrupted. This is further proved by the (p. 21) very fact, that at some sea- sons there is a communication between the (Chicago and the Des Plaines which could not be the case if there was any high land intermediate. ‘^The Des Plaines, for 14 or 16 miles below its junction with the swamp above mentioned, has scarcely any fall, and may be said to be on a level. Below this the rapids commence and continne for a considerable distance. A short distance below the commencement of the rapids, the lake and the Des Plaines are supposed to be on a level. To this place, therefore, the canal would only require an average excavation of 6 or 8 feet.’’ (Abst., pp. 724-5.) 1825. — Drown ’s liecord and Historical View of Peoria,'^' p. 85, (1st Ed. 1844, Eevised Ed. 1850), states the following: ^E\nother of our old ])ioneers 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 dudge Lock- *The same work gives the following statement as to the Ameri- can settlement of Peoria : (81) ‘Mn the spring of 181,0 a few hardy sous of Kentucky, Vir- ginia and New YoiE living, as I have lyefore said, on Shoal Oreek, resolved on an enterprise and settlement further north, if found favoralde to their wishes in this delightful ])art of our State. Ac- cordingly, seven persons united themselves into a ])aud for this nndertaking and fitting out a keel boat destined for llie Tllinois River and Port Clark at the foot of Peoria Lake, as this place was then called. Those persons were Aimer Eads, a Virginian by birth; J. Horsey, a New Yorker; Seth Fulton and Josiah Fulton, Virginians; S. Daugherty, J. Davis and T. Russel, Kentuckians. The two first left Shoal Creek wdth two pack horses and the five last moved with the boat they had prepared for the voyage up the Mississippi and Illinois Rivers. ^‘ Eads and Hersey took their course across the yyrairies, cross- ing the Illinois River at or near where Meredocia now stands, and 192 Avood, Judge Latliain (wlio afterwards became a citizen and proprietor 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, came here about that time with a keel boat and ])roceeded up to LaSalle prairie (Rome), where he paid off the Indians their annuity. Some of them returned and set- tled here subsequently and became useful citizens in building up our city. ^Mn 1832 an Indian agency was opened and established here by the Government, of which Judge Latham was appointed agent, in iJace of Maj. Graham-, of vSt. Louis, where it had heretofore been kept. John Hamlin, Esq., was a clerk and kept a branch of the American Fur Company’s store in this place in one of the buildings in the center of the view between Water St. and the lake — the building from the right just below the Inn sign-post. In this store were kept Indian com- modities chiefly. A portion, however, was adapted to the wants of the citizens who, at this time, were few. Mr. Ham- lin, while thus engaged in this store, exported the first pro- duce to Chicago in 1825 in keel boats as far as the mouth of the Kankakee River, and from there in Durham boats to Chi- cago (having build 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, within the present bounds of the citv till about 1832.” (Abst., p. 679.) thence on this side of the river through the country to this place, where they arrived with their pack-horses and baggage, and pitched their tent beside the remaining pickets of the old forth on Satur- day, the 17th day of April, 1819. On Monday, the 19th, Eads left Hersey in charge of their horses at their camp and got into a canoe with a deserter from Ft. Chicago (vdiich had been rebuilt a year or two before, taking the name of Port Dearborn), who came jjassing down the river. Eads 7net the boat with his companions about five miles below, near the mouth of LaMar sh Creek, where he joined them and returned to the old fort, where all landed safe the same evening, being on Monday, the 19th dav of April, A. D. 1819. ‘‘The tents they had pitched beside the pickets of the old fort and their boat served them for a shelter and habitation until these pioneers could fit up and cover two log huts; bodies that had been laid up by some of the Indian traders or F rench AAJiile the troops were stationed in Fort Clark two squares aboAm.” 1825. U. S. REPORT ON ('ANAL — REFKRKNCrE TO TJSE IN NATIJKAL STATE. In House Report No. wliic'li was a i‘e}K)rt to tlie 2(1 Scission of tlie IHtli Cbngresis, niade Feliruary 1, 182*1, and found in House Ke})orts, 18tli Congress, 2d Session, Vol. 1, Serial No. 172. Tlie full title of this report is as follows : “Report of the Select Committee to which was referred on the third ultimo a memorial of the General Assembly of Illi- nois, upon the subject of the Canal Communication between Illinois River and Lake Michigan, accompanied with a hill to aid the State of Illinois in the accomplishment of the same. “February 1, 1825: Read and with the hill committeed to a committee of the whole house.” (Abst., p. 730.) In the body of the report we find the following: “In examining this subject, the attention of the Committee has been drawn to seAmral points wdiich seem naturally to bear upon it; and first, as to the practicability of making the pro- posed connection of those waters. On this branch of their in- quiries the Committee can see no room to doubt. Although the report of the Commis'sioners and engineers has not been made to the General Assembly at the time of adopting the memorial that has been referred to the Committee, the Legislature of the State entertained no doubt on that point. Such, indeed, is the concurrence of scientific observation and actual experi- ence in relation to the fact that in order to establish it, the report was not necessary. The experience to which the Com- mittee refers, i& that of many years and which is a matter of historical notoriety. It is that of repeated passages having been made, by nnimterrupted navigation from the river into the lake.’’ (Abst., p. 731.) The Committee of the whole house in their report quoted the above paragraph practically verbatim, as will appear by an exam- inatdon of House Report No. 147, 19th Congress, 1st Session, Vol. 2, Serial No. 183. 3. SUMMARIES BY HISTORIANS AND ENCYCLOPEDISTS. M'^e submit herewith extracts from well-known standard author- ities; as to some of which formal proof that they bore this char- acter Avas put in evidence; and as to the rest their character is too well known to need any such voir dire. Though tlie ])assages (]uoted lielow were not in all cases formally embodied in the record below, they are part of the historic literature of the subject of which this court takes judicial notice and as to which the introduc- tion of the passages in evidence was unnecessary. 114 IJndor this heading’ may also ho eonsidei'od the previous extracts from Wiiisor, Imlay, Heck and Drown. Ill Parkmaii’s ^'LctSalle and the Discovery of the Great Westd^ on jiage ()8 we find tlie following concerning Marquette’s second voyage : ^^They were more than a month in coasting its western border, when at length they reached the river Chicago, entered it, and ascended about two leagues. * * * There was an encampment of Illinois within two days’ journey; and other Indians, passing by this well known thoroughfare, occasionally visited them, treating the exiles kindly, and sometimes bring- ing them game and Indian corn.” On pages 65, 67, 68, 69 we also find the following passage : ‘^On the thirtieth of the month they left their hut, which had been inundated b}^ a sudden rise of the river, and carried their canoe through mud and water over the portage which led to the Des Plaines. 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 current of the Des Plaines, by naked woods and spongy, sat- urated prairies, till they reached its junction with the main stream of the Illinois, which they descended to their destina- tion, the Indian town which Marquette calls Kaskaskia. Here, as we are told, he was received Dike an angel from Heaven.’ ” (Abst., p. 735.) In a later edition published in 1901, in a note to page 24, speak- ing of the movements of LaSalle. ^‘The Hres-beau havre’ may have been the entrance of the river Chicago, whence we 'shall see that he took this course in his famous exploration of 1682.” (In mid-winter and by sledges.)^ (Footnote Concerning Marquette) : ^The late Judge John D. Caton, in his paper ‘^Last of the Illi- nois,” read before the Chicago Historical Society, December 13, 1870, published by the Fergus Printing Company, 1876 (not read at trial below), repeats the story from Father Dablon of the trip of Marquette and Joliet down the Mississippi and back up tlie Illinois to the Chicago and of their return in 1675, of which latter trip he says : u* * * They coasted the west side of the lake in open boats or canoes, in the latter part of the season when the lake 1834 — Sclioolcraft’s NARRATIVE OF AN EXPEDITION TIIROUCMI THE UPPER MISSISSIPPI TO ITASCA T.AKE, THE ACTUAL SOURCE OF THIS RIVER. * * * New York. Harper & Brothers, 1834. Introducto ry M em o randa. ‘‘The principal points at v/hich llie waters of the Missis- sippi Eiver communicate, by interlocking rivers and portages, with the lakes, are the following, proceeding from north to south, namely: 1. By the Illinois and Chicago Creek (with Lake Michi- gan). 2. By the Wisconsin and Fox Elvers (with Green Bay). is boisterous and forbidding. It was a perilous and fatigTiing voyage of four months duration and sorely tried the endur- ance of the zealous missionary. They at last reached Chi- cago, just as winter was closing in, and proceeded up the South Branch of the river to where Bridgeport now stands, and there built a hut in which the missionary wintered. After the lonely and tedious winter was past, he proceeded down the Illinois Eiver to the great city of the Illinois, below Starved Eock and there established the first mission ever founded in the Illinois country and named it Kaskaskia.” “the early history of ILLINOIS.” By Sidney Breese, Chief Justice. Page 96 note: “It is stated by Parkman that Manpiette moved two leagues from the mouth of the river. The river was frozen over, and it is not ])robable that they iiaddled 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 prairies to the south lirancli and up along the branch to the vicinity of Mud Lake, about where it is now, comes in as a tributary of the south liranch above McCormicks’ present reaper factory. If we place the location between that and the bridge over the branch at AYestern 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 just where, in times of high water, canoes were carried through Mud Lake to the D'es Plaines Eiver, and so the ])ortage was made down to the Illinois and Kankakee Elvers.” (Abst., p. 737.) Fnd Alarouette footnote here. )). By the (liippewa and Miislikee (oi* Mauvais) Rivers (witli Lake Superior). 4. P>y the St. Croix and Bnrntwood (or Brule) Jlivers (do). 0 . By the Savanne and St. Louis Rivers (do). “The routes by the Illinois, and by the Wisconsin, were hrst laid open by French entcr])rise, and liave been used for ('aiioes and Hat-bottoni boats in their natural state, and witli- ont any ])ractieal improvement which, as yet, facilitates com- nmnieation, a])out a hundred and sixty years. They are so familiar in our geogra})hy, have l)een so mucli explored, and ai-e so well a'i)])reciated, that it is only to be desired that early and efficient measures should b^ taken for opening them.” (p. 121.) (Abst., p. 740.) 1836 — From the '^Encyclopedia of Geography * * By Hugh Murray, F. R. S. F. American Edition. (Copyriglited 1830, bv Carv, Lea & Blanchard, Philadelphia. Republished 1853.) ‘ “The Illinois, the principal river of the State, is formed in the northeastern part of the junction of the Kankakee and the lies Planes and flows, by a southerly course of 300 miles, to the Mississippi. For the distance of nearly 50 miles in the upper part of its course, there are obstructions to its navi- gation in a low stage of water and fhe rapids above mouth of the Vermilion River can be passed only in times of flood. Be- low this steamboats of moderate burthen find no impediments through a distance of 260 miles. ‘The current through the distance last mentioned is exceedingly gentle, often quite im- perceptible ; indeed this part of the river may with much pro- priety be denominated an extended pool of stagnant water.’ (Long’s Expedition to the St. Peter’s River.) ***** “The Des Planes rises in Wisconsin and runs for some distance parallel to the shore of the Lake Michigan, and not more than ten miles from the lake with which there is a navi- gable communication through which loaded boats often pass during the spring floods.” (p. 562.) (Abst., pp. 213-214.) ***** Smithes History of Wisconsin: (The History of Wisconsin in three parts, historical, docu- mentary and descriptive, compiled by direction of the Legis- lature of the State, by William R. Smith, President of the State Historical Society of Wisconsin, Part I, Historical ; Vol. I, Madison, AVis.; Beriah Brown, Printer, 1854.) Pages 82-83, occurs the following: “One among the first of the operations of the AVestern com pany was to send eight hundred emigrants to Louisiana. They arrived in August, 1718, at Hauphine Island, Bienville, La., 197 in tlio siuninor of tlie same year selected the site for the eapital of the new empire, whicli, in honor of the Recent of France, he named ‘New Orleans.' Of the recent emigrants from P^’ranee, eighty convicts were sent among the Coppices tliat oversy)read New Orleans to prepare room for a few tents and cottages. At the end of three years the place was still a wilderness spot where two Imndred persons, sent to construct a city, had hut encamped among unsubdued canebrakes. The character of the emigration was not that of iadustry, energy, or of informa- tion. Some perished for want of enterprise, some from the climate, and in places of ascending the river in ships, they all blindly disembarked on the miserable coast to make their way as best they could to the lands that had been ceded to them. An extraordinary instance of energy may be men- tioned : Du Tissenet, a Canadian emigrant, having purchased ’ a compass, and procured an escort of fourteen Canadians, went fearlessly from Dauphine Islands by way of the Mobile River to Quebec and returned to the banks of the Mississippi with his family. At this period the three great avenues from the St. Lawrence to the JMississippi ivere^ one hg ivay of Fox and Wisconsin Rivers; one by ivay of Chicago, luliich had been safely pursued since the days of Marquette; and one by the Miami of the lakes, where after crossing the portage of three leagues over the summit level, a shallow stream led into the Wabash and the Ohio.” (Abst., }). 740.) In connection with this, I Andreas’ Chicago , p. 06, prints “Sec- tion, of Charlevoix’s Map, 1774,” which labels the Des Plaines River “R des Illinois” and -shows “Chicago River” and between the two gives the description “Portage les Chenes.” I Andreas’ History of Chicago, p. 07 says: “Soon after the opening of the 18th century this route to the Mississippi became so dangerous that it was gradually abandoned, and finally almost forgotten. The long war be- tween the Illinois and the Iroquois had made the Kaskaskia fearful and timid. They were directly in the path of the enemy from the location of their village, which, lying far up the river, was first struck by their war parties on their raids into the country of the Illinois.” (Abst., ]). 644.) I Andreas, p. 91, under the title ^^The Fur Trade and ’Traders,” says : “Until the friendly 111 inois were driven from their river, French traders passed freely to and fro over the ‘Chicago Route’ from Canada to Louisiana and colonists came and built their cabins around the Fort St. Louis. When the tribes of the Illinois were driven from their country, and Port St. 398 ]jouis liad been abandoned and finally destroyed, this path beeaine for a time too dangerous for even the daring voy- ageiirs, aiut this route of the Canadians to the Frencli settle- ments and to the interior of the country was exchanged for one more safeC^ And on page 92 he continues : “The first trace of white occupation of the site of (diicago after it became the home of the Pottawatomies is by a French trader named Guarie, who located on the west side of the North Branch of the Chicago Biver, near the forks. Gurdon S. Hubbard, wliose personal knowledge of Chicago dates back to 1818, says of this trader (Blanchard’s ^History of Chicago,’ page 757) : “ ‘Prior to 1800 the north branch of the Chicago Eiver was called by the Indian Traders and voyageurs, “River Guarie,” and the south branch, “Portage River.” On the west side of the north branch a man by the name of Guarie had a trading liouse, situated on the bank of the river about where Fulton Street now is. This house was enclosed by pickets. He lo- cated there prior to 1778. This tradition I received from Messrs. Antoine Heschamps and Antoine Besom, who, from about 1778, had passed from Lake Michigan to the Illinois River yearly; they were old men when I first knew them in 1818. This tradition was corroborated by other old voyageurs. The evidences of this trading house were pointed out to me by Mr. Deschamps ; the corn hills adjoining were distinctly traceable, though grown over with grass.’ ” I Andreas, at page 100, under the heading “Chicago from 1816 to 1830,” continues: “From 1816, when Fort Dearborn was rebuilt, to 1829-30 there was little change in the outward appearance of Chicago. Samuel A. Storrow, of Massachusetts, Judge- Advocate, U. S. A., in 1816-18, made a three months tour of the West in 1817, visiting Fort Dearborn on his route. In a letter to Major- General Brown, which was published in the Wisconsin His- torical Society’s collection, he says: ‘ River Chicago (or, in English, ^Yild Onion River) is deep, and about forty yards in width. Before it enters the lake, its two branches unite, the one proceeding from the north, the other from the west, where it takes its rise in the very fountain of the Plein, or Illinois, which flows in an opposite direction. The source of these two rivers illus- trates the geogra] 3 hical phenomenon of a reservoir on the very summit of a dividing ridge. In the autumn they are both without any apparent fountain, but are formed within a mile and a half of each other by some imperceptible undulations of the prairie, which drain it and lead to different directions. 19 !) Blit in tlio spring’ tlio space between the two is a sin< 2 ^Ie sli(H‘t of water, the (‘oinnion reservoir of both, in the center of whicli tliere is no cnrrent towards either of the opyiosite streams,’ ” 1 Andreas, 107-8, in a sketch of Baissell E. Heacoclc, the first law- yer of Chicago (a native of Litchfield, Conn., 1779; licensed to yiractice hy the Supreme Court of Illinois, January 24, 1821; ar- rived at Chicago July 4, 1827 ; appointed one of the seven justices for Cook Counly Sept. 10, 1831), says: ‘ ^ In 1832 there appeared in a Buffalo paper several letter from him to his brother, a merchant of that place, describing Chicago and the territory immediately to the west in glowing terms — the beauty of the country and the fertility of its soil. He referred to the land grant by Congress for the construction of the Illinois and Michigan Canal ; and, to show the entire feasibility of the project, stated that in high water boats passed from the south branch of the Chicago Eiver into the Des Plaines, and that by this means the American Pur Com- pany transported their annual supplies to their trading posts on the Illinois Eiver and its tributaries.” 1837. — ‘Llltnois m 1837.” A Sketch descriptive of the Situation, Boundaries, Face of the Country, Prominent Districts, Prairies, Rivers, Minerals, Animals, * * * of the State of Illinois * * to- gether with a Letter on the Cultivation of the Prairies. Hon. H. L. Ellsworth. * * * Published bv S. Augustus Mitchell, and bv Origg & Plliott, Number 9 N. 4th St., 1837. A well engraved map is ]U‘efaced which traces the Des Plaines and lays down and labels upon it the towns of ‘d\ankakee” (im- mediately between the Des Plaines and Kankakee Rivers), ^M)res den,” just across the Des I^laines from Kankakee, then Juliet, Lockport, Des Plaines and (near the yiresent ‘‘Riverside”) Canalport (the latter being at the mouth of the Little Des Plaines; the latter stream is well marked, but not named). Under the heading “Rivers,” he says of the Illinois and Des Plaines Rivers the following (pp. 34, 35, 36) : “The commerce of the (Illinois) river is extensive, and in- creasing wfith a rapidity knovm only to the rich agricultural regions of the Western States. Several steamboats are con- stantly employed in its trade, and many others make occa- sional trips; about 35 different boats passed and landed at Beardstown in 183(), making the arrivals and departures 450. L>()() ''riie year 1828 was tlie eominenc'ement of steam navigation on this river. * * * ‘Mn tlie Illinois iriver there are })nt few sand l)ars and im- pediments of anv eonse(iuence until we reach tlie Starved ilock, about one mile above tlie town of Utica. Here we meet with the first perinanent obstruction, being a ledge of sand- stone rocks immediately at the foot of the lower rapids, and extending entirely across the lied of the river. This point is 210 miles by the course of tlie Illinois from the Mississifipi. 'The town of Utica may therefore be justly considered as the head of steamhoat navigation on the Illinois Eiver, although steamers at high water frequently ascend nine miles further, to Otta^v)a. The sum of $100,000 has been appropriated by the Legislature of the State to improve the navigation of the Illi- nois, which may be made good at all stages of the water. * * Perhaps no river of the Western country has so tine a boatable navigation for the same distance, or waters a richer or more luxuriant tract of country. ^‘The Des Plaines Eiver is the northern head branch of the Illinois. It rises in Wisconsin Territory, a few miles west of tlie 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 Des Plaines, 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 .42 miles above the mouth of this stream is a swamp connecting it with the Chi- cago 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 communication between the Great Lakes and the Mississippi, from the first discovery of the country by Europeans; this circumstance first suggested the idea of an artificial connection by means of a canal at this point.” (Abst., p. 722.) Extract from the History of Will County,” by George H. Woodruff, 1878. (Excluded by the court below.) On page 607 we find the following: ^U^s early as 1834 the products of the farm were boated down tlie Kankakee to the Des Plaines 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 of the Iro- quois, with 300 bushels of oats, 300 bushels 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 201 oiitoriiig tlio Dos I^laines, wlioii iioar l.^'roat’s Island, tlie boat dipped water and so dampened tlie ^rain that they were obli^>ed to unload and try to dispose of tlieir f)roduee at that point. At that time settlers were arriving in that neighborhood quite rapidly and they liad no trouble in disposing of their whole cargo — the oats at 50 and the wheat at 75 cents per bushel/’ Extract from the Joliet Signal ^ a newspa])er under date of June 8, 1847, gives the following item of newS' “ A boat was sunk yesterday in ti^e Des Plaines Eiver, 14 miles south of Joliet, and ten men drowned. There were 16 men and a yoke of oxen in the boat and the accident was caused by the oxen crowding to the bow of the boat, causing it to fill and sink. The water was twenty feet deep.” (Abst., p. 403.) THE PORTAGE. On Joliet’s map of 1674' we find the stream plainly marked and connected, and the connection labeled Portage.” (Abst., p. 1916.) On Marquette’s original map of 1674 we find the river plainly marked as actually connecting with the ^^Lac des Ilinois” (Abst. p. 1942). (From Government Engineers’ Peport of 1886.) (Fac- simile of original preserved in St. Mary’s College, Montreal.) On Thevenot’s map of 1681 we find the streams plainly shown as connected by a small lake, which is labeled ^‘Portage.” (Abst. p. 1917.) On Charlevoix’s ma]:) of 1774 we find the two streams drawn close together, with the inscription between ‘^Portage les Chenes.” (Abst., p. 1916.) The map described by Parkman, page 450, opposite the site of Chicago, says Parkman, are v,u*itten the words, of which the fol- lowing is a literal translation: ‘^The largest vessels can come to this ])lace from the outlet of Lake Erie, where it discharge's into Lake Frontenac (On- tario) ; and from this mark marsh into which they can enter, there is only a distance of a thousand paces to the river La Divine (Des Plaines) which again led them to the river Col- bert (Mississippi) and then to the Gulf of Mexico.” (Abst., p. 738. This map, Parkman says, was made ^Ghree years or more after Galinee made the map mentioned above” and this in turn, he says, was made in 1670. (Abst., p. 738.) 202 Ta^-es 452, 452, I\arkman mentions two other maps by Joliet, bearing in snbstance the same inscription as that given on his first map. (Al)st., }). 728.) In 1099 St. Cosme writes of using the passage on the 2d of No- vember in the previous year. (Abst., p. 701.) In 1778 Thomas Hutchins, a distinguished Englisli engineer, af- terwards Surveyor General of the United States, in the book which became the standard authority and earned his promotion to the great office, describes the passage as ‘‘by two portages between the latter and the Illinois River, the longest of which does not exceed 4 miles.” (Abst., p. 727.) In 1790 Hugh Heward records ‘‘May 11, 1790, a showery day and wind af west, the carrying place, about 4 mile, got over nearly at midday, from thence passed in the run a small lake to the river Des Plaines.” (Abst., p. 745.) In 1790 Governor St. Clair, describes the communication from Kaskaskia as ‘‘up the Illinois River, up the Chicago and there by a small portage into Lake Michigan.” (Abst., p. 728.) In 1795 the treaty of Greenville, made by Gen. 4Vayne with the Indians, after his successful Indian wars, reserved the right of free passage by land and water ‘‘from the mouth of the Chicago to the commencement of the portage between the river and the Illinois, and down the Illinois to the Mississippi.” (Abst., p. 762.) In 1801 to 1811, incinsive, the 11th annual editions of the Navi- gator stated that ‘‘between a branch of the Illinois and the Chi- cago River, which empties into Lake Michigan, there is a portage of 2 miles. Prom this portage to the lake is Batteaux navigation of 16 miles.” (Abst., p. 719.) In 1816 Major S. H. Long traversed the route and marked upon his map the dotted line between the two streams, which he de- scribed vnth the phrase ‘‘the distance from the River Des Plaines to Chicago River by this w^ater 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 2 miles in the dryest season, but in a wet season boats pass and repass in facility between the two rivers.” And Graham & Phillips described the portage as “at one season of the year an uninterrupted water connection for boats of 6 or 8 tons hurdoii, at anotlior season a portage* of 2 miles, at another a portage of 7 miles ; at another a port- age of 50 miles.” (Abst., pp. 708, 712.) In 1810 Dana, in his Principal Roads and Routes, described the portage from Chicago as ‘^over tlie portage and up tlie Plein.” (Abst., p. 718.) In 1821 John Walls, Surveyor of the United States, surveyed the Government lands and marked the line between the two with the word ‘ ‘ Portage Road, ’ ’ and the point where the portage road struck the river with the words in his field notes, ‘‘Head of Navi- gation. ’ ’ In 1823 Mr. Keating, of Major Long’s expedition, a geologist and historiographer, said: “We reached the place where the old portage road meets the current, which was here very distinct to the south * * *. Lieut. Hopson, who accompanied us to the Des Plaines, says that he had travelled it with ease in a boat loaded with lead and flour. The distance from the port to the intersec- tion of the portage road and Des Plaines is supposed to be about 12 or 13 miles.” (Abst., p]). 705-706.) In February, 1825, the congressional committee re])orted in writ- ing upon the memorial of the General Assembly of Illinois in S])eak- ing of the “inncticability of making the |)roposed connection of waters,” said, “the experience to which the Committee refers is that of many years, and which is a matter of historical notoriety. It is that of repeated passages having been made hg nninternipted navigation from the river into the laked’ (Ahst., 731.) We submit that there are few facts as to history of early travel in America which are better attested than this. We submit that the uniform use of the term “])ortage” to de- scribe, this passage for 150 years is good evidence tliat the streams were so used as a piddhc highway. THE PORTAGE TTS IMPORTANCE TO TRAVEL. In ‘‘The American Nation, A History, Vol. 1 1, Basis of .Wneri- can History, 1500-1900, by Prof. Livingston Farrand (Columbia University), Harper Brothers, 1904,” which was read in evidence, the uses of the waterways and portages in this early time is de- scribed thus ((Chapter 2, pp. 23-27) : ‘^Tlie two most important factors in tlie exploration and settlement of a country are the ivatenvays and mountain sys- tems — the one an assistance to travel, the other an obstacle. 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, up the larger rivers, and often near the head of navigation for sea- going vessels — for example, Quebec and Montreal on the St. Lawrence, wihere the lower shores were forbidding; and the settlements on the James and Delaware, where fear of attack by sea determined the sites. ‘M^’roni these points as bases the early exploration and set- tlement of the country extended, and the significance of the rivers and streams at once became evident. The dense for- ests, where the only road 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 to penetrate far into the heart of the continent, carrying their merchandise for barter and return- ing with their bales of furs. Eiver travel on east and west lines involved crossings from one stream to another, hence a point of great interest to the pioneer was the portage. (Abst., p. 748.) ^ ‘ From the Atlantic seaboard the St. Lawrence and the Great Lakes offered the readiest access to the interior of the con- tinent, and as a natural consequence we find the French, the settlers of the St. Lawrence basin, the first explorers of a large part of the interior of North America; and this, too, be- fore the English farther south had even passed the Alleghan- ievs. By portages from Lake Superior to Eainy Lake and thence to Lake of the Woods, the French gained the north- ward-flowing stream and penetrated to Hudson Bay and far into the Canadian northwest. Their successors, the English and Scotch of the fur companies, were the first to reach the Pacific coast from the interior. It is interesting, too^ that the first portage to the Mississippi Valley discovered by ex- plorers was one of those lying farthest west — ^that from the Fox Eiver to the AVisconsin. ^^The place and convenience of these portages were well known to the Indian, and the European as a rule merely fol- lowed the trail of the savage. (Abst., p. 749.) ***** ‘‘From the Great Lakes to the Mississippi basin there was a choice of paths. In the northwest the French often crossed 'Jh) iVoin tlio hoad oi:* liako Sii[>ei*ior to the llpiXii* iVI ississipf)! })y way of the St. Ijoui® Uiver. Tlie most important portage, liowever, was probably that which led from the Fox to the AViscoiisiii River, first used in by Joliet and Manjuette, and later the site of Fort Winnebago. At the southern end of Lake Micliigaii an important trail led from the (diicago to the Des Plaines and so to the Illinois, on the same line, as the present Chicago Prainage Canal ; the portage was from four to nine mites in length, according to the season. Other carry- ing places of that region were from the Cabnnet to the Des Plaines, and from the St. Joseph to the Kankakee; but that from the St. Joseph to the Wabash was the principal channel of supplies for the early settlers at Vincennes.” (xAbst., p. 748.) THE POKTAGE ADDENDA. In the ‘‘Transactions of the Illinois Historical Society for the Year 1904 ” (not produced at the hearing) (publication No. 9 of the Illinois Historical Library), is published a paper by Mr. John F. Steward of Chicago, entitled Chicago — Origin of the Name of the City and the Old Portages” (pp. 460-466). In this paper Mr. Steward says : ^‘On 13 early maps before me, mostly French, the Indian town, portage and trading i)ost is spelled as follows. Franque- lin, 1687 (Checagou; Tiileman, 1688, Chekagou; Delisle, 1703, Checagou; Sutteri, 1710, (!) Checagon. (Idiis is probably a misprint. I find the script u in French often copied in unfa- miliar names as n.) Old French map in British Museum, 1718, Chicagou; Moll, 1720, Chekagou; Bollin, 1744 (two maps), Chicagou; D’Anville, 1746, Chicagou; Vaugondy, 1755, Chica- gou; Andrews (English), 1782. Chicago; Bowles, 1783, Che- cagou; Pownall, 1794. Checagou.” He then quotes from Father Marquette’s Journal under the en- try of Dec. 3, 1674, thus : ‘‘Having embarked after saying Holy Mass, we were com- pelled to make for a point so that we could land, on account of floating ice.” * “The party was nearing the Chi- cago River, and I take it that the point referred to was known to our early German settlers as ‘Gross Point,’ where Evanston adorns the shore, 12 miles from the mouth of the now odorous river.” * * * “We departed (from the point) under favorable conditions, for the river of the port- age.” * * * “The navigation of the lake is good enough from one portage to the other, not having any breadths (bays) to cross.” “On the 12th is the entry, ‘During our 20G stay at tlie enti-aiiee of tlio i-iver/ etc., and ‘‘as we began yes- terday to haul onr baggage (over tlie iee) to approach the portage/ etc. We tlms gatlier tliat the stay ‘at the entrance of the river’ was from the 4th to the ]2tli, and that the ‘river of the portage/ was a then ivell Imoivn stream, and, further- more, one that led to a well known portage; it was a portage certainly known to Marquette, as he had traveled it 18 months before wdth Joliet. He gives no hint that he knew of two portages into the Des Plaines. His map of 1673 shows the existence of but one, and Joliet’s map makes it plain that the portage availed of by him and Marquette ivas hy way of the oversowed regions of south branch of the Chicago river, and not through the 20 miles and turns of the Calumet river and Stony brook, as told by Andreas in his history of Chicago. “On Governor Hull’s map of 1812 we find the words, ‘The portage is generally from the Chicago R. to the R. Des Plaines/ And in the table of distances we read, ‘From Chicago (then a trading post) to the portage, six miles, the portage seven miles, from the portage to the river aux Plaines (Des Plaines) three miles.’ “It is plain that the proportions of Hull’s map outrage the facts, but it nevertheless gives a good general idea ; the dis- tanoes given in figures are approximately correct. Let it be noted that he shoves two lakelets, in part connecting the two rivers, and that Marquette speaks of two ; and further, that LaS'alle not only mentions them, but refers to a beaver dam between them. We find a close correspondence with these de- tails in John Andrews’ map of 1782 and in Hull’s map of 1812. The beaver dam was on the small stream that flowed westward, as Hull shows, at any rate, the fact that a beaver dam was between them shows that the outlet of one led into the other. “In a report to the king of Great Britain dated Sept. 8, 1721 (New York Colonial documents) we are told, when speak- ing of the traders, that they passed ‘to the lake of the Illinois (Michigan), thence 150 leagues on the lake to the fort Miamis, situated on the mouth of the river Chicagoe ; from hence come those Indians of the same name, viz., Miamis, who are settled on the fore mentioned river that runs into Erie.’ ‘Up the river Chicagoe they sail but three leagues to a passage of one- fourth of a league; then enter a small lake of about a mile, and have another small portage (to another lake) and again another (portage) of two miles to the river Illinois, thence down the stream 130 leagues to the Mississippi.’ * * * “The distance traveled by the traders were always esti- mated, often very inaccurately, which accounts for the dispar- ities often noticed. The approximate distance from the lake to the Des Plaines was established very early, particularly 207 iliat to the head of tlie portai^o, given as two Frcaieh land leagues (2A2 miles). Taking the United States survey of 1882 and following the winding of the south branch of the river 41 miles (two Frencli leagues), we find, where Lincoln street now crosses tlie river, a house shown on the map, and near it the words, ‘p^^Uage liouse.’ From that, alwayft north of and along the margins of the marshes and little lakes, to the Des Idaines is drawn and so named U^^i'tage road.’ The two lakes that head the marsh between which, no doubt, was the beaver dam mentioned by LaSalle, ai*e laid down. One of them rep- resents Mud lake, although no name is given. It is probable that at the locality of the house’ had always been a stopping place. Marquette says they resolved to winter there, Owo leagues up the river,’ and speaks of ^ their cabin.’ He does not say that his men made a cabin, and, judging by the way he speaks, we may conclude that the cabin was already there; perhaps an Indian cabin or one made by the traders. Marquette continues : March 30 — On the 28th the ice broke up and stopped above us. The 29th the flood became so great that we scarcely had time to decamp ; we put our goods on trees and endeavored to find a place to sleep on a knoll; the water gained nearly all night, but freezing a little it fell. * * * TPg q^m (above us) has just broken, * * * and, because the water is rising, * * * about to embark and continue our journey. * * * 31st. We start- ed yesterday and made three leagues in (on)* the river, in mounting, without finding any i)ortage; that is, without find- ing any place where it was necessary to port (carry) the ca- noes and goods. ‘We hauled our goods perhaps about an ar- pent.’ (A French lineal acre.) ‘Besides this discharge the river has another (that we are to reach) by which we are to go down.’ In other words, the outflowing Cliicago river had an- other outlet, through Mud lake and thence into the Des Plaines, which is several feet lower than Lake Michigan, down which they were to go. Until the hand of man had turned their courses, the waters also flowed from the swamps into the great lake and found their way thousands of miles to the northeast, as well as into the Des Plaines, and sought the Gulf, a thousand miles southward, seemingly at will. * * * “There were two lesser portage routes — that by way of the Calumet and Stony brook, sometimes used l)y canoemen when the swamps were full, and another route u]i the north branch of the Chicago river, past the Miami village (later Potta- watomy) at the present site of Bowmanville, and onward to where the river most nearly approaches the Des Plaines. The land carriage may have passed the modern village Norwood Park. On some of the old maps now before me the Chicago portage is laid down and so named. On others is found sim- 208 ply tlie words ^I^ortage les Chenes,’ meaning Portage of tlie Oaks. In tlie majority of eases where the latter is found the North liraneh is laid down, and when only the South branch is laid down the portage is usually called that of Chicago. The Avr iters of many of the accounts knew the Des Plaines only as the Chicago, and when those writers spoke of the Chicago ])ortage they may have referred to either. The Portage of the Oaks, or that by the lesser branch of our river, must have lieen little used because of the shallowness of its water, par- ticularly during the summer months.” The State Historical Society published with this paper a plate giving a condensed view of the Government survey, also of the Thevinot map, both of which are in evidence; and upon the same plate the Society reproduces also the map by Surveyor General Hutchins (whose description is in evidence, but not his map), and also the maps by the English Surveyor John Andrews in 1782 and by Governor Hull in 1812. Governor Hull’s is certainly a public document, of which this court will take notice. He was the Gov- eimor of the territory northwest of the Ohio and in charge at De- troit at the time of the outbreak of the war of 1812. We insert this ])late at this point on opposite page. THE CHICAGO PORTAQ^. as tlio wcll- Tlio maps all ai>Too in ostablisliin^* ‘^tlio j)orta,i^(i’’ known line of travel from the earliest times. *lt was not attempted to make the summary of early maps and travels over this portage exhaustive. In 1 Andreas’ /‘History of Chicago,” pp. 38-71, there are reproduced 20 ancient maps, showing the portage, 16 of which were not put in evidence. A still larger number appear in the volumes of Winsor’s “Narrative and Critical History of America,” from which large extracts were made at the trial. Some of the historical references to the use of the portage can be found in E. G. Mas'on’s “Chapters from Illinois History,” thus: Pages 107-9. (Use of the portage by Tonty in September, 1680.) Page 121. (By LaSalle in March, 1681.) Page 124. (By Tonty, December 25, 1681.) Page 125. (By LaSalle, Jan. 6, 1682.) Pages 143-4. (By LaSalle with his company and an army of 4500 Miamis, 1683.) Page 145. (By two of Tonty’s men in June, 1683.) Page 157. (By Tonty in May, 1684.) Page 161. (By Gov. LaForest and party, in June, 1685.) Page 178. (By a party of five Frenchmen and 12 savages, with Joutel and Abbe Cavelier, September, 1687; and return trip in October.) (This mentions their going up stream by canoe in September; and their finding the water too low when they came back in October. They then cached their “goods, peltries and ammunition,” and proceeded downward on foot.) Page 179., (By two French parties: one under Governor LaForest in the autumn; and the other by two Frenchmen in December, who left their canoes at the portage “because of ice in the river.”) Pages 181-2. (By Allotiez, with five Frenchmen and five savages March, 1688, in- cluding Joutel.) “Joutel describes the situation of the place called Checagou, and its river, formed by the water flowing from the prairie, which, he says, discharges into the lake, as well as the stream flowing from the other side of that prairie, which goes down the Illinois River; so that whether one is ascending or descend- ing, it is necessary to make a portage, sometimes a quarter of a league, at others one-half or three-quarters of a league, according as to the water’s rise or fall. He formed the same opinion which Joliet had come to, at the same place, that it would be easy to make a junction between the two rivers which we know as the Chicago and the Des Plaines, since the intervening ground was flat and readily excavated. But Joutel sayS that it would require a con- siderable settlement there to justify such an expense.” (Id., 182-3.) Page 289. (By Verville, in the summer of 1779, with a British-Canadian troupe, who went down as far as Peoria and burned the French trading post.) Page 290. (By two military expeditions: one a British incursion into Illinois fro;;? Canada, and the other a party of French and Indians under Langlade, who came up from the South ; — who were seen by the negro trader Baptiste Sable. In the “Drainage Channel and Waterway,” a history of the Sanitary District Channel, prepared under the direction of the Sanitary District of Chicago and copy- righted by it.s' Board of Trustees (by G. P. Brown, Chicago, R. R. Donnelly & Sons Company, 1894) yet other references to early uses appear: Page 117. — Dec. 1, 1817, letter of Samuel A. Storrow, Judge Advocate, U. S. A., to Gen. Brown, describes the portage, as well as that of the Wisconsin and the Fox. Page 119. — A description of the portage hy William Darby, “an author of promi- nence in the East,” is given at some length. Pages 120-1. — An article from the “St. Louis Inquirer,” published in 1816, apropos of the survey in that year of the grant by the Treaty of Black Partridge (elsewhere referred to), describes the portage, and says “In high water boats of ten or a dozen tons pass without obstruction.” These facts were so “universally known and of such historical notoriety,” as the committee of Congress said in 1825, that we did not deem it necessary to make formal proof of every use of the stream to be found in the books. We believe and still believe that those which we formally put in evidence were representative and sufficient ; and we were surprised to hear the trial court refer to the whole in the phrase : “Even though there might have been some slight use of it down stream on rare occasions.” 212 Collections of the Illinois Stole Jllstoricol lAhrary, Vol. 1 (not ])r()(liiced at hearing). Edited and annotated hy IL \¥. Beckwith, President of the Board of Trustees. Springfield, 111., 1903. Illinois Historical Collections, Vol. 1, p. 107. Chapter on La- Salle’s Voyage down the Mississippi. ^‘On the 27th of December, 1681, M. de la Salle departed on foot to join M. de Tonty, who had preceded him with his fol- lowers and all his equipage 40 leagues into the Miamis coun- try, where the ice on the River Chekagou* (Note 2), in the county of the Marcoutens, had arrested his progress, and where, when the ice became stronger, they used sledges to drag the baggage, the canoes, and a wounded Frenchman, through the whole length of this river, and on the Illinois, a distance of 70 leagues.” ^‘(Note 2)* (Note hereto). Later and now called the Des Plaines. In earlier reference the present so named Chicago River w^as regarded as an inlet of the lake. And as late as 1812 the Des Plaines from the Chicago portage to the Illinois was known as the River Chicago.” See Edwards’ History of Illinois, p. 98. — H. W. Beckwith. In ‘‘Wisconsin Historical Collections/' Vol. 16, page 372 (not produced at hearing) is a note by Reuben G. Thwaites, as follows: ‘^Of the portage here mentioned, that of Des Chesnes (^‘The Oak Trees”) was the one from the Chicago River to the Dies Plaines — The earliest and best hnoivn route between LaJce Michigan and the Mississippi. * * * ^^41 (p. 161.) — Reference is here made to the Illinois River; from its upper waters, the traveler obtained access to liake Michigan by several portages. That between its northern fork (the Des Plaines River) and the Chicago River was, ow- ing to the southward current along the west shore of Lake Michigan, the usual route on the outward voyage from Mack- inac and other northern points. The Des Plaines 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 voyager could reach the great lake not only by these routes, but by a third — Ym the Kankakee (the southern fork of the Illinois) and a portage (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 2 \:] iiorilnvard along the east sliore. — See Winsor’s Mississippi Rasin, pp. 24-2(). “The ('iiieago-Des PJaines 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 (December, 1899), nearing completion, follows the same route, from Chicago to Joliet, a distance of 36 miles southwest to the Des Plaines river — a waterway 14 feet deep, and 100 feet wide, which will not only insure proper drainage to Chicago, but greatly fa- cilitate her commerce. The late Hon. John Wentworth, some time Editor, Mayor of Chicago, and Member of Congress and builder of the Ogden-Went- worth-Nickerson Ditch, refers to the subject in his lecture, ''Earlij Chicago,’^' in a reprint, of which in 1876 (not produced below), he sa^^^s (p. 7) : “In 1700 there were 35 of these missionary stations or quasi military posts located all the way from Frontenac (now Kingston), on Lake Erie, via Detroit, Mackinaw, Green Bay, Chicago, Peoria, St. Louis, etc., to New Orleans. About the same time there was another route by land via Fort Wayne to Chicago. “Their route out of Chicago was down the north bank of the South Branch through Mud Lake, then called Le Petit Lac, to the Des Plaines River, and generally in the same little boats with which they had passed over the lakes of the East. This route, partially interrupted by the construction of the Illinois and Michigan Canal, has been recently restored to the condition it occupied for so many years, and the waters of Lake Michigan and of the Desplaines River again mingled, after a few years of unnatural separation.” (This refers to the Construction of the Ogden- Went worth Ditch.) 1814. — An extract from Niles' Weeklg lledister, published at Bal- timore, Aug. 20, 1814. Under an article entitled “Resources and Improvements. Steamboat Navigation.” “Calculation and estimate of the internal navigation of the United States, for steamboats — compiled to shew the aston- ishing commerce that different parts of the Union will have with each other to the great benefit of the whole, and the gen- eral prosperity; interspersed with geographical observations and remarks from the best authors, assisted by some private communications to the editor from his correspondents.” ])ii^e 417 we take the following extract: ‘‘From Chicago up Chicago River to a swamp or marsh at the head of the Illinois, only 2 miles distant. It is said there already is a passage for canoes through this marsh; and all accountsi concur in stating that a comanuini cation (may be easily made. We, therefore, consider it as done, for it cer- tainly will be done and at a small expense, as soon as it is re- quired by the settlement of the country. We are not satis- factorily informed of the depth of water in the Chicago — it is said to atford a ‘batteaux n.avigation,’ by which we under- stand it is free from obstructions — from Lake Michigan to the swam]) through which we ])roposed to cut the canal, * * * “The. Canal. “We now enter one of the most beautiful rivers anywhere, clear, gentle and without rapids, running through a country that some of the French who visited it called ‘a terrestrial ])a.radise,^ from the luxuriancy of its soil and productions. On the shores of the idver is a profusion of coal — salt springs are numerous — and native grapes so abundant that, in 1769, a few French settlers made of them 110 hhds. of fine strong red wine. It wall probably be the wine .country of the United States. It is well timbered with white and red cedar, mulberry, pine, sugar maple, &c., and some dying and medicinal plants ai’e found. “The country is level, as may be inferred from the gentle- ness of the river, but not flat ; and well adapted to all the usual agriculture of the Middle States. On this river is a quarry of hurr stones, such as millstones are made of — llie Illinois near Michigan is divided into 2 branches, one of which called the Theakiki is a considerable stream; we propose to enter our little canal at the place where these branches united form the Illinois.” (Article in Niles’ Register is cited and summarized in Canal History, which was put in evidence by defendant. (Abst., pp. 1173-4.) The defendant there put in evidence : (a) the “Canal Report of 1900, which contained (b) Willard’s Documentary History of the Canal, which in turn quotes (c) an extract from AYoodruff’s “History of AAill County,” which in turn summarized (d) the article in Niles’ Register. (And see Abst., p. 1910.)) In '^Drake's Picture of Cincinnati {Natural and Statistical View or Picture of Cincimiati, * by Daniel Drake, Cincinnati. Printed by Looker &A¥allace, 1815”) the author (also of “Drake’s Navigator”) gives a statement of tlie points of ap[)roximation between waters of the Mississippi and tlie Lakes, as follows (not produced below) : ‘‘Canals . — The points of near approximation between the waters of tlie Mississippi and the Lakes appear to be these; not including those which may exist in the vicinity of I^ake Superior, and have not yet been examined. The first of these is in the neighborhood of Presq’ Isle, where the highest navi- gable point of Branch Creek, one of the branches of the Alle- gheny, is found within 12 or 15 miles of the lake. But whether a canal could be dug through the portage has not been publicly stated. The second is between the Cuyahoga and Tus- carawa, one of the upper streams of the Upper Aluskingum. The portage to this place is not more than a dozen miles; and so certain is it that the two waters could be connected by a canal, that in a law of Congress appropriating a portion of the public lands to the improvement of internal navigation, 100,000 acres were assigned for defraying the expense of this project ; but the work has not yet been commenced. The iliird is betwixt the St. Mary and Auglaize, branches of the Mau- mee; and Loramie’s Creek, one of the most navigable waters of the Great Miami. The relative positions of these small rivers may be seen l)y reference to the map. The St. Mary is remarkably serpentine, holding a general direction towards the Northwest, which makes the voyage to the Lake circuitous and protracted. It is said to have an earthen channel, with low banks, and to be deep and narrow. In the course of the year there are generally five or six floods, when its navigation would be perfectly safe, were it not for the bayous which are then formed. Its junction with the St. Joseph, at Ft. AUayrie, composes the Maumee. The Auglaize is a shorter river than the St. Mary, and entering the Maumee 60 miles below that stream, affords a much quickei* passage into the lake. It is a larger river than the one first described; but has a stony chan- nel and rapid current. In the opinion of gentlemen who have descended both, the navigation of the Auglaize is generally not so safe as that of the St. Mary, tho’ at certain seasons it affords more water. The highest navigable points on these rivers are not more than 20 miles asunder; and between 12 and 18 from the head of navigation in Loramie’s Creek. The intervening tract is nearly level, and composed of a deep stratum of loam and clay. Which of these streams could be more easily and advantageously connected with our waters re- mains to be determined; as does also, the more important question, whether the portage would afford sufficient water to feed a canal. The fourth connexion is between sources of the Wabash and the St. Mary, 8 miles above Ft. Wayne. When every year these rivei-s ovei'flow tlie intervening lands to sncli a (lej)tli that loaded boats pass over with facility. Of the ])j‘aeti('al)ility, tlierefore, of connecting them by a canal, there can he no doubt; and in that law of Oongress just quoted, an appropriation of land equal to that for the Muskingum and Cuyahoga Canal, was made for this. The pfth point of inter- coninumication is between the Illinois, and the Chicago, which 1 am informed are so connected that in freshets l)oats can pass readily from one to the other. For encouraging the improve- ment of this navigation, the General Government have made the same appropriation as in the cases above mentioned. The sixth connecting waters are the Ousconsing and Fox Rivers. The former runs into the Mississippi — the latter into Green Bay, an arm of Lake Michigan. The portage at this point is said to be short! ‘^Mdiich of these connexions offers the greatest facilities to commercial increase cannot at this time be determined. That beneath the Chicago and Illinois will, it is probable, be the least expensive ; but as vessels in reaching it must pass through the Straits of Michillimackinac, it is not likely to be used until the banks of Lake Michigan and the Illinois shall become thickly inhabited. ^ ' (Pages 221-223.) Danenhower^s Chicago City Directory for 1851, Chicago, Published by M. W. Danenhower, 1851, in its prefatory Historical Sketch, says (page 6) : ^ ‘ The first white men that ever visited the ground on which our city stands, of which we have a reliable account, were the ' Jesuit missionary, Marquette, and his companion, Joliet.' It was on their return from their first expedition to the Missis- sippi in 1673. Having ascended the Illinois in canoes, they passed through the slough, known to us as Mud Lake, lying be- tween the 0 ’Plain and the South Branch of the Chicago River, and thence into Lake Michigan. Some of our citizens living among us have frequently passed from the waters that empty themselves into the Mississippi into Lake Michigan in this man- ner. (The damage done the shipping in our harbor in the spring of 1819, in consequence of the flood, was mainly caused by the 0 ’Plain changing its usual course and emptying itself into the waters of the St. Lawrence instead of those of the Gulf of Mexico.) Father Marquette remained near Chicago about two years, preaching to the Indians, who were a tribe of the Miamis. He then started on a journey to Mackinac, but died on the way. On the banks of a small river (Mackinac) within the limits of the present State of Michigan, he rested from his labors.” (Abst., p. 641.) ExtrjU'i IVoin Miss'isslppl hy Justin Wlrisor, })ul, lishod ill l)Ostoii and Now York in 1895. On jiage 1^4 wo find tlio following oxtraot: ‘Vf^oforo tlio end of* the 17tli century, the [lortages at the head of Lake Michigan bad become the liest known of all, and there had been a trading-post for sometbing like 15 years at the Chicago River. What Herman Moll, the English cartogra- pher, called the Mand carriage of Chekakou’ is 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 river, then a lialf a league of carriage, then a mile of water, next a small carry, then two miles to the Illi- nois, and then 130 leagues to the Mississippi. But descriptions vary with the season. It was usually called a carriage of from 4 to 9 miles, according to the stage of the water. In dry sea- sons it was even farther, while in wet times it might not be more than a mile; and, indeed, when the intervening lands were ‘drowned*,’ it was quite possible to pass in a canoe amid the sedges from Lake Michigan to the Des Plaines, and so to the Illinois and Mississippi.” (Ahst., p. 471.) In Rufus Blanchard’s Nortlurest and Chicago,'’ (Ahst., p. 640), Volume I, ]). 492, occurs the following; “With the opening of the year 1817, Cajit. Bradley was still busy in completing the various appendages to Fort Dearborn, such as a magazine made of brick, rescued from the ruins of the old fort factory building, etc. A commodious parade ground was also laid out, and a large field immediately south of the fort was enclosed with a rail fence. This was planted with corn and garden vegetables for the subsistence of the garrison. Convenient gateways both on the north and south gave ingress and egress. The block house itself was more substantially built than the original one, and afforded an am- ple assurance of safety from Indian outbreaks. Oommunica- ■tions were soon opened with the settlements of southern Illi- nois by way of the south branch of the Chicago River, Mud Lake, the Des Plaines and Illinois rivers. Along this channel, supplies of flour, meat and other necessaries were brought to the fort by means of small row boats and the short portage from the Des Plaines River to the Chicago River. The settle- ments of southern Illinois had at that time attained propor- tions sufficient to qualify the territory for a State in the fed- eral LTnion, and the next year. 1818, isTathaniel Pope, delegate to Congress, applied for and obtained the admission of Illinois as a sovereign State.” 218 Oil page 584-5 tlie following oeeiirs: ‘‘From Mr. Fzekiel Morrison, who came to Chicago soon alter the arrival of Mi*. Williams in 1833, the following has lieen learned relative to the opening of the mouth of the river directly to the lake. In 1833 work was commenced at cutting through the sand bar to straighten the Chicago River. It was done under the direction of Major Handy, who had charge of 'the governmental work. Cribs were made, filled with stone and sunk across the main channel of the river to turn its course across the sand bar directly into the lake as it now runs. The next year, as good fortune would have it, the Des Plaines overflowed the country intervening and caused an unusual flow of water through the Chicago river. Only a slight opening was made in the sand bar, and the accumulated waters did the rest. A steamboat came through the opening thus made in the spring (1834). The north pier was then commenced to secure the advantage thus gained. Four hundred feet was made the first year, and its progress continued from year to year to its present dimensions. Imraediaitely after the channel was pierced through, 'the wind commenced drifting sand from the north bank into the river and cribs had to be set into the bank to pre- vent the filling up of the channel. * * In “A Winter in the West. Letters Descriptive of Chicago and Vicinity, 1833-4,” by Charles Fenno Hofl’man (editor of the Knick- erbocker Magazine), reprinted in 1882 by the Fergus Printing Company, as “Fergus Historical Series, No. 20” (Abst., p. 643), the distinguished editor, writing on January 10, 1834, says: “The town lies upon a dead level, along the banks of a nar- row, forked river, and is spread over a wide extent of surface, shores to the lake, wdiile vessels of considerable draft of water can, by means of the river, unload in the center of the place. * * * * * * * # “As a place of business, its situation at the head of the Mississippi valley will make it the New Orleans of the north; and its easy and close intercourse with the most flourishing eastern cities will give it the advantage, as its capital increases, of all their improvements in the mode of living. “There is one improvement to be made, however, in this section of the country, which will greatly influence the perma- nent value of property in Chicago. I allude to a canal from the head of Lake Michigan to die head of the steam navigation on the Illinois, the route of which has been long since sur- veyed. The distance to be overcome is something like 90 miles, and when you remember that the head waters of the 1 ^ 1 !) Illinois rise within 11 miles oi' C^hica^o River, (*) and that a level |)lain of not more than' 8 feet elevation above tlie latter is the only infervening obstaele, yon ean eoneeive how easy it would be to drain Lake Michigan into the Mississippi by this route; boats of 18 tons have actually passed over the inter- vening prairie at high water. Lake Michigan, which is sev- eral feet above Lake Erie, would afford such a never-failing body of water that it would keep steamboats floating on the route in the dryest season. St. Louis would then be brought comparatively near to New York; while two-thirds of the Mis- sissippi valley would be supplied by this route immediately from the markets of the latter. This canal is the only remain- ing link wanting to complete the most stupendous chain of in- land communication in the world.” ‘Mn July, 1833, Giles Spring and myself went in a large canoe from Chicago to Riverside, passing through Mud Lake. At the dividing part of the waters we paused, and diverted ourselves by sending the water either into the Gulf of Mexico or the Gulf of St. Lawrence motion of the paddle.” — John Dean Caton, Chicago, April 7, 1882. (*)^‘The Chicago River is about two (1) hundred and fifty feet wide, has sufficient depth of water for lake vessels to where it forks in the center of the town. The southern and princi- pal branch takes its rise about six miles from the Fort' in a swamp, which communicates also with Des Plaines, one of the head branches of the Illinois. This swam)), which is desig- nated by the Canadian voyageurs as Le Petit Lac, is navigable at certain seasons of the year; it has been frequently traveled by traders in their pirogues; and a bateau from St. Louis, loaded with provisions for the garrison at Chicago, passed through this medium, ])assed from the Mississi)i)')i into Lake Michigan. Major Long observes, ujoon ]iassing through this marsh in a canoe, AVe were delighted at l)eholding for the first time a feature so interesting in itself, but which we had afterward an o)>portunity of observing frequently on the route, viz., a division of waters starting from the same source and running in two different directions, so as to become the feeders of streams that discharge themselves into the ocean at immense distances apart. * * * When we consider the facts above stated, we are irresistibly led to the conclusion that an elevation of the lakes a few feet (not exceeding 10 or 12) above their present level would cause them to discharge their waters, partly at least, into the Gulf of Mexico. That such a discharge has at one time existed, every one conversant with the nature of the country must admit; and it is equally apparent that an expenditure trifling in comparison to the im- ])ortance of the object would again render Lake Michigan a tributary of the Gulf of Mexico. llarrlcA Martinean , tlie (listiTi,i>uis]iecl essayist, aiitlior of So- ciety in America,” friend of Thomas Carlyle, and well known woman of English letters of the last century, describes her visit to Chicago in 1836, in a chapter whicli was reprinted in the Fergus ilistorical Series of ‘C\nnals of Chicago, No. 9.” (Chicago. Fer- gus Printing Company, 244-8 Illinois street. 1876. (Ahst., p. 644.) Mi ss Martineau drove from Michigan City to Chicago, and then to Mount ftoliet. Among her references to the river are the follow- ing: P. 41. ‘‘A little further we came to the Eiver Aux Plaines, spelled on a sign board ‘0 ’Plain.’ The ferry here is a monop- oly, and the public suffers accordingly. There is only one small flat boat for the service of the concourse of people now pouring into the prairies. Though we happened to arrive nearly first of the crowd of today, we were detained on the bank above an hour ; and then' our houses went over at two crossings, and the wagon and ourselves at the third. It was a pretty scene, if we had not been in a hurry; the country wagons and teams in the wood by the 'side of the quiet, clear river ; and the oxen swimming over, yoked, with only their patient faces visible above the surface. 42. ‘^As we proceeded the scenery became more and more like what all travelers compare it to — a boundless English park. The grass was wilder, the occasional foot path not so trim, and the trees less majestic; but no park ever displayed anything equal to the grouping of the trees within the wind- ings of the blue, framing the Eiver Aux Plaines. 43. ^‘We actually had to cross the rushing, deep river on a line of single planks, by dim moonlight, at past eleven at night. The great anxiety was about Charley; but between his father and the guide, he managed very well. This guide would accept nothing but thanks. He Midn’t calculate to take any pay. ’ 44. ‘‘Not far from the Mount was a log house, where the rest of the party went in to dry their feet, after having stood around in the wet grass. I remained outside watching the light showers, shifting into partial sunlight, from clump to level and from reach to reach of the brimming, winding river. ’ ’ The defendant, desiring to appropriate the river to its private uses, lends a ready ear to every allusion in literature to the diffi- culties in the navigation of a river. It found in the letter of La Salle of September, 1680 (Abst., p. 1640 ef seq.) criticisms of the 22 \ river. In lliis letter he deserihes a joiiriK^y vvliieli lie made ^lanhi l^iid to INIareh L4tli, when, as he says: “The river the next day was covered with ice for about four leagues below the lake (Peoria Lake^ some of it being too thin to walk on and some it too thick to be able to break it and get through bark canoes. We then |)assed that day, the second of March, carrying everything by way of the land in the snow up to the middle of our legs. * * The third we navigated in a canoe along the river, which we found frozen in seven or eight places, * * 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.” In the two pages descriptive of this journey, the words “win- ter,” “ice,” “snow,” “frozen” occur twenty-three times (Abst., pp. 1642-3-4), in which he says: “We lost all hope of being able to send provision to the fort for a long time, not only because there teas 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.” (Abst., p. 1642.) In this letter he proceeds to say. “You complain that in my letters I do not tell you any- thing special of the Illinois and of the riches to be found there. * * * The l)arque (Griffin) was finished the follow- ing 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. * * * “First that it only got lost in coming back * * * py in. evitable effort of the storm which became terrible two days after its de])arture and lasted five days; “Second, that there was neither any lack of capacity in the ] 3 ilot who had held this ])osition 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 im})ossible to do what Monsieur L’ab])e Bernou asked me, to send some one to learn if the lakes and the great ilver were navigable otherwise than by baixjue, 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 s(]uall in the middle of these lakes forty or fifty leagues large, and the banpies could not keep too near the middle of the watei- in oi-der not to he thrown on the siiore, so that it is neeessary to go in a harcjne to discover the difficulties of navigation, or it will be necessary to blame those who have crossed the unknown sea for not having tried them with launches in order not to risk their l)oats. ‘‘Fifth, if that had been possible it would have taken three years to go around the lakes wliich is more than fifteen hun- dred leagues and where the least wind sometimes holds a canoe 8, 10, 15, 20 days in a ])lace without advancing. “Sixth, this l)arque 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 ap])aratus for the boat that I .had ordered to be made in the Kiver of the Illinois, that being impossible in a canoe, for although they have used a canoe to bring to the Sault of the Rapids the api)aratus 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 voy- ages in canoe by these lakes on account of their size, which give rise to some frequent storms which stop the canoes, that are never found in the rapids ivhere one is never inconvenienced hy the ivinds and which stretch only forty leagues; “Second, concerning first, pecans, and originals, if there 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 going in a canoe, as some of the new ones that have come from France, the expense of their passage would be great for this ronsoii, not l)eing any toainster who vvould (Jrive thorn loss than two or throo hundi-od })Oiinds a man; “Firth, tor tho safoty of tho nion and of tho offoots whioli would bo much more exposed in canoes, not only on account of tho [)oril of the waters whicli is continuous, but to 1)0 killed l)y the savages as it lia{)pened 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- (uilt to supply by hunting for a great number of people. ^ ^ * j ^rili not have any trouble in giving you afl 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; hut 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. * # * # * 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. * * * \ 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 prin- cipal of 1682 you will 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 1 will send you back the fifty ])er cent, of the ])rincipal that you have already fur- nished, with a memorandum that you will fulfill in 1681, which will come also at your risk by the first boat where 1 will l)e obliged to keep ready for you the same })rofit 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 mem- orandum that you have furnished the year before, the profit payable in Quebec in furs at the current ))rice or in a draft on farmers on the condition that the ]u*ices of the things will be in cash in France during the ten years of our treaty.” This is the letter from which the defendant offered La Salle’s comment on Joliet, saying: Having finished my caches, 1 left the 28th of De(‘eniher 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 (juarter of a league westward. There is a little Jake divided by a causeway made by the beavers, about a league and a half long, from wliicb runs a stream, which after winding about a lialf a league tbrougli tlie ruslies empties into the river of (diicago, and tlience into that of tlie Illinois. This lake is filled with heavy summer rains, or spring freshets, and discharges also into the clianel wliich leads to the lake of the Illinois, the level of which is 7 feet lower than the prairie on which the fake is. “The river of Chicago does the same thing in the spring when 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 channel for a quarter of a league from this lake, to the basin which leads to that of the Illinois by which vessels can enter the Chicago and descend to the sea. “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 Illinois 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 Lhone. Moreover it would only be 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. * * * “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- ('aus(‘ of 11 k‘ ol* their situation oii the inoiintains of Nia4»'ara, or the nearness of other inonntains hy which) llu^y are almost wliolly surrounded, ddie aiitnnm and sf)ring storms are so turious, so sudden and so lon^-, particularly fuj-ious from the northwest and northeast, and from the southeast in the spring, that sometimes for three or four days, it would })e impossible to carry sail or keep clear of land, which is never more than 15 or l(i leagues distant, the lakes being no more than 30 leagues wide, and because if this communic'ation should be insisted upon by means of ])arks, 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 would be easiei: ^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. * # * * “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 foi* 13 leagues. * * * “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.” (Abst., pp. 969-70-71.) When these passages are read together it is plain that La Salle’s entire experience with the river was under the most unfavorable conditions, and that lie found the lakes, the Lake of the Illinois, the channel between Lake Erie and Lake Huron, the Chicago River, and the Divine River, all of them, not navigable, except under special circumstances. His letter is, in substance, an a])ol- ogy to his creditor for not being able to pay him, an explanation of the great difficulties which he had encountered, the offering of new commercial paper, and accounts and profits in preceding years, and plainly forecasting the abandonment of Fort Creve 22(1 Coeur at Peoria, and tlie develo])ment of Fort Miami at St. Jo- seph. As to La Salle’s relations witli Marquette and Joliet, they were explained by Prof. Alvord to be those of intense rivalry. He said : ‘bLa Salle was a cultured man with a good power of ob- servation but extremely prejudiced against the Jesuits, so much so that be would be likely to disparage anything that the Jesuits had done. * * * The Jesuits would always disparage La Salle’s explorations, and La Salle the Jesuits’.” (Abst., pju 751 2.) In Chambers’ Encyclopedia, Vol. 8, pp. 689-91, article ^H^a Salle” (Abst., pp. 1619-1653), a comprehensive sketch of La Salle’s life is given, in which the following occurs: ^‘Here he met Joliet, afterwards with Marquette, discov- erer of the upper Mississippi, returning from a futile search for copper mines on Lake Superior. Prom him he pro- cured a map of the lake country which he had visited. Prom this point the records of La Salle’s movements are not full. About this time (1675) a bitter feeling between La Salle 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 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 the savages. The Jesuits could retain their control 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 support 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 religion grew up in their hands, and divided Canada into two 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 power was on the other. With the latter were numerous traders who thrived by their favor at the mis- sions. La Salle 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 prohibiting traders from going into the country of tlie Indians to trade, thus giving their missions the monopoly. 227 La Salle cireiiiiiveiited lliis by indueiri^i^ a large seltlerrierit ol* Iroquois around liis fort, who could range the country for liini as hunters and trappers witliout })eing considered traders. Besides a new fort and barracks, he built a flouring mill, a bakery, and groups of houses for French settlers. Ills fort was surrounded by Indian villages. Absolute lord of the colony, he seemed to lay the foundation of his own for- tune by multiplying the means and incentives to industry for others. * ^ ^ ‘^La Salle now continued his 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 hay of Milwaukee. South of that, fairer weather, game, and fruit welcomed them; and reaching the niouth 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 widfh, but growing hourly in volume as they floated down.’’ Parkman says of La Salle (Parkman’s ‘‘La Salle,” page 2): “At 'an early age, it is said, he became connected with the Jesuits; and, though doubt has been expressed of the statement, it is probably true.” Page 106: “He is stated 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.” Foot note: “This agrees with expressions used by La Salle in a memoir addressed by hjm 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.” (Abst., pp. 1647-8-9.) The conclusion is irresistible that La Salle became interested in his Fort Miamis at the mouth of the St. Joseph and entertained all the jealousy of Chicago ^which afterwards characterized some other communities. Again, he had great hostility for the Jesuits, both because of the early estrangement and also before-hand with the Indians and had the fur trade which he sought to acquire. Finally, he was imperious, was embittered by many disappoint- iiieiits, explaining liis failure in Illinois in the manner in which we have seen; and he was frecpiently s})oken of as of unsound mind. AVinsor says : “There is not a little in all this to point to a state of mental unsoundness in La Salle.” (Abst., p. 16()5.) hi all this there is am])le explanation of the fact that La Salle differed from the other travelers and explorers in his accounts of the navigation of the lakes and the rivers of the North- west. PHYSICAL CHARACTERTSTTCS. 1. IMMEDIATE REACH OF RIVER MOST INVOLVED. The reach of the river with which we are now most concerned extends from Dam No. 1, a State dam in Joliet, Will County, to the confluence with the Kankakee, in Grundy County, a distance of 16 miles. The Des Plaines River rises in the southeast corner of Wiscon- sin, about 10 miles west of Lake Michigan, and flows southwardly until it reaches a point in Cook County about 11 miles west of Chi- cago, when it turns and runs southwest a distance of about 40 miles to the northeast corner of Grundy County, where is unites with the Kankakee. About three miles above this junction it receives the Du Page River. The Illinois River is correctly said to be formed by all three of these streams; and according to Schoolcraft (as (pioted by the defendants’ witness McCowan, the Illinois River is said to begin at the mouth of the Du Page. ( Abst., p. 625.) Some of the earlier books call the Des Plaines the Upper Illinois ; and in some of the Government Reports upon the improvement of the Illinois River the Des Plaines is properly treated as part of the Illinois. It is a river, in general, which from Joliet to the mouth is about 400 to 600 feet wide and above Joliet is ordinarily about 200 feet wide, with well defined banks which sometimes overhang from 8 to 25 feet, and occasionally, in the Des Plaines above Lockport, the stream passes through rolling prairie where the descent from the ground level to the water level is so gradual that in high water the stream floods the entire valley for miles in width. ‘‘This river for 13 or 14 miles has very little descent, the current at low water being scarcely perceptible and the land so low along its borders as to overflow by verv slight rise of water.” (Engineer Gooding’s Rep., Dec. 19, 1836; reprinted in Canal Comrs. Rep. for 1900, p. 121.) (Abst., p. 1875.) And occasionally tlie stream broadens out into bodies like Lake Joliet (below Joliet), a deep gorge 5 miles long and from 1,000 feet to a (luarter of a mile wide. Just at tlie foot of Lake Joliet it is divided into two channels by Treats Island, 4,500 feet long. Tlie right hand channel is about 527 feet wide and the left hand channel about 276 feet wide, at the widest point; at the narrowest ]K)int, about 145 and 128 feet, respectively. (Abst., ]). 871.) At this time the Chicago Drainage Canal built by the Sanitary District of Chicago connects the Chicago Eiver, from a point in the city limits of Chicago, with the Des Plaines River in Joliet, by a channel from 162 to 300 feet wide at the surface, from 160 to 300 feet wide at the bottom and 24 feet deep, and through which, since the 17th day of January, 1900, a stream of water amounting to 300,000 cubic feet per minute has been flowing continuously (except- ing when the controlling works of the Sanitary District have shut down or reduced the volume of the stream). (Abst., p. 818.) This body of water was added to the Des Plaines by the expenditure of flfty-four and a half millions of public money raised by taxation, for the primary purpose of effecting sanitation for Chicago, and the incidental purpose, declared by the Legislature by resolution at the time of the creation of the Sanitary District, in the following form : ‘ATheeeas, It is contemplated to increase the volume from Lake Michigan to 300,000 cubic feet per minute within a few years and ultimately to add 600,000 cubic feet or more, thus enabling a large depth for navigation to be obtained by an improved channel, and that -said channel will be self-sustaining and self-improving and will discharge flood waters more read- ily, thus benefitting the bordering lands and increasing the healthfulness of the valley. ‘AVheeeas, Works now projected by the City of Chicago will form part of a water-way of large proportions from Lake Michigan via the Dies Plaines and Illinois RWers to the Mis- sissippi River, of which the dams and locks upon the alluvial section of the Illinois River can form no part and which, if allowed to remain, will increase the overflow and be detrimen- tal to the welfare of the Illinois Amlley and the interests of the State. Therefore be it Resolved, hy the Senate, the House of Representatives concu rring herein. ‘M. That it is the policy of the State of Illinois to procure the construction of a water-way of the greatest practicable depth and iiset*iilness for navigation from Lake Mi(diigaTi via tile Des Plaines and Illinois Rivers to tlie Mississippi River, and to eneoiirage the (*onstruetion of feeders thereto of like [iroportions and nseFulness.” (Joint Resolution, May 27, 28, 1889, Laws of 1889, pp. 375-6.) And by the act of the same date authorizing the construction of the Drainage Canal, it was provided by Section 24 that said stream when constructed and the water turned therein should be a navigable stream (Act of May 28, 1889, Sec. 24, Laws of 1889, p. 135.) Depth. — This body of water is now flowing in the Des Plaines River and gives it at all seasons of the year a minimum depth of 34 to 4 feet. (Abst., p. 654.) Current. — The current in this reach, as reported by the Gov- ernment surveyors in 1905, was taken at four places, viz. : At the Kankakee Cut-off about a mile above the confluence, where it was 2.5 an hour; again, a quarter of a mile below Treats Island, where it was 2.1 miles per hour; again, just at the entrance to Lake Joliet, where it was 2.3 miles per hour; and again at the Jefferson Street Bridge in Joliet, where it was computed at 7.4 miles per hour. In the reach of Lake Joliet itself, about 5 miles long, the current is less than the smallest of these. (A])st., ]). 661.) Land Grant for Canal. — In 1827 the Xmited States gave a land grant to the State to aid in the construction of the canal which should unite the waters of Lake Michigan and the Illinois. This act provided nothing as to the length of the canal, but donated to the State one-half the land for 5 miles in width on each side of the canal throughout its whole length. The longer the canal the greater rhe land grant. That the length of the canal was not settled at the time of the land grant of 1827 is demonstrated beyond cavil ])y the record and is so expressly found by the Senate Committee on February 15, 1837, in the following words: ‘Mn the examination of the questions now under considera- tion, the committee will first review the legislative action bear- ing upon this point. In 1823 an act was passed organizing a Board of Commissioners to consider, advise and adopt the moasiii-(‘s ro(iiilsite to effect the (‘oiiiinunieation canal and locks between the navig'a])le waters- of tlie Illinois Kiver and Ijake Mi('higan. Five di-stingnished citizens of the State were constituted the hoard. An examination and survey were exe- (‘uted under their direction by Messrs. Paul and Post, both of whom stood high as men of science, talents and integrity. ‘‘ In January, 1829, an act was passed by which a Board of (kinal Commissioners was organized, who were required to lo- (aite the canal to effect a navigable communication between Lake Michigan and the Illinois liiver, the Canal to be at least 40 feet in width at the summit; of the water line, 28 feet wide at the bottom and of sufficient depth to contain at least 4 feet of water; and to be furnished with such locks, aqueducts and dams as might be required to secure a safe and convenient navigation for boats at least 75 feet long, 134 feet wide and drawing 3 feet of water. No point is fixed in either of these acts for the termination or commencement of the canal; nor veas anij direction given as to the tvaters to he used for feed- ers. * * * In 1834-5 another act was passed which pro- vided that the canal shall be not less than 45 feet wide at the surface, 30 feet at the base, and of sufficient depth to ensure navigation of at least 4 feet. * * * No point of termina- tion teas fixed hy this act. ‘^The act of 9th January, 1836, under which the late Canal Commissioners acted, provides that a canal shall commence at or near the town of Chicago, on canal lands, and shall ter- minate near the mouth of the Little Vermilion River, in La- Salle County, and on land owned by the State.” (From Rep. of Senate Com., Feb. 15, 1837, reprinted in Canal Comrs. Rep. of 1900, p. 134.) (Abst,, pp. 1879- 80.) The work of Paul and Post in 1825 no more determined the length or location of the canal than any one of the numerous sur- veys by Government engineers determine the scope and dimensions of the future Government improvement of the river. All are ad- visory. It is the Legislature which decides these questions — and it decided the length and termini of the canal by the act of 1836, eleven years after the Paul and Post report and nine years after the making of the land grant. It is indisputable that the land grant was made in 1827 without fixing the length or termini of the canal and that they were not fixed until 1836. Xecessaky Amount of Canal. — (1) The actual physical necessi- 2:j3 ties for a, (*anal were (‘onfinod jo a (‘anal froin tlie (dii(;a^o Kiv(*r to the Dos Plaines; (2) a (‘anal three miles lon^ at Joliet around the swift point of the stream there; and (d) to a (‘.anal about three miles long around the Grand Eapids of the Illinois at Marseilles. The first two are now covered by the Drainage Canal, leaving only the third in the Illinois Elver to be done and leaving the Des Plaines with all the water necessary for navigation. In 1837 the Legislature had before it a proposition to change ‘ these locations and ‘^to substitute the improvement of the Illinois Eiver from the foot of the rapids to the head of Lake Joliet for steam naviga- tion by means of locks and dams.” (Senate Eep., Feb. 15, 1837; reprint Canal Eep. 1900. p. 133.) (Abst., p. 1878.) The House of Eepresentatives favored this change. (Id.) The Senate rejected it on the ground that the land grant had been made with a view to a canal extending all the way from the lake to the Illinois and that therefore a canal which stopped at Lake Joliet, 10 miles above the confluence of the Kankakee and Des Plaines, would be a breach of faith. Whetlier it would or would not is one question (and upon that question the two houses differ;) but whether a canal was necessary or not to secure navigation is another and a different question. Major IV. II. H. Benyaurd, under date of March 5, 1884, reported on a ‘‘survey of the Illinois and Des Plaines ILvers between La- Salle and Joliet, Illinois; in addition to the re(piisite locks and dams the plan also contemplates the construction of a short canal at tlie falls of Joliet and one at Vlarseilles. * * * The river route has also the advantage when it is considered that we have navigation on a stream 600 feet wide instead of the narrow channel of the canal. Looking at the matter in an en- gineering point of view, it is difficnlt to understand what led originallg to the construction of the canal rather than the im- provement of the natural cha/nnel of the river/ ^ (U. S. Eng. Eep., 1884, III, ])p. 1958-9.) Abst., pp. 1118-9 and 1699.) ‘'The earials around the rapids at Joliet and Marseilles are to he 1()0 feet w^ide for the larger system of locks and 80 feet wide for the smaller lock, with slopes of 11 to 1 except at the ni)per end of the canal at Joliet, where for 2,000 feet the width of the wider canal is restricted to 120 feet by the manufactur- ing interests on each side of the canal. * * * distance from Joliet to LaSalle by the I. & M. Canal is 63.8 miles, and by the river 64.2 miles, but the much greater speed which a boat will be able to make in the open waterway of the river renders it the more economical transportation route. ’ ^ (Ibid Eep. of Asst. Engr. MJsner, pp. 1961-2.) (Abst., p. 1119.) So the Ernst Board of Engineers, reporting in 1905, said : “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 provided for each of these sections.’’ (Abst., p. 662.) At the extreme east there was necessary a short canal from Chi- cago to the Des Plaines. At the extreme west there was necessary a canal three miles long around the Grand Eapids of the Illinois at Marseilles. Paul and Post had made a preliminary survey of the entire country between in 1825, and the land grant had been donated with- out any termini and required simply that it should embrace one- half of five sections on each side of the canal from one end to the other. Having to build a canal in Chicago at one end and in La Salle County at the other, and having a land grant of five sections of land for every mile of canal, the State authorities naturally pro- jected a canal continuous in length from the short piece needed at the extreme east to the short piece needed at the extreme west. So the Canal Commisisoners, by President Thornton, avowed to the citizens of Ottawa by the communication of July 11, 1836. (See Canal Eep., pp. 109-111.) President Thornton said: “"When this act was passed, the question was not new, wheth- er a continuation of the canal or an improvement of the river below Ottawa by lock and dam was most advantageous to the g'eueral iutcrest. Tlie Legislature had accumulated a large fund of information in order to judge of the comparative ad- vantages and disadvantages of each plan, both in relation to the safety and stability of navigation, and to the increased rev- enue derivable from State property by terminating the canal as loir doirn 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. * * * In 1833, the same engineer reported that a comparatively good route could be obtained for the con- tinuation of the canal from the mouth of Fox River to a place now known as Utica and that great difficulty and expense would attend a further progress. In examining the rapids of the Illi- nois below the mouth of Fox River he says: ^It was ascer- tained that the establishment of a still water navigation was the most certain and effectual method of improving them.’ But” (continues President Thornton) ‘^in his zeal to demon- strate the superiority of a railroad over either mode of water communication, he admitted a steamboat canal around the rap- ids, ‘ to he of too precarious a nature to he recommended with any degree of confidence in its permanency and usefulness.’ He estimated an independent canal between Fox River and Utica at $580,000; and a still water navigation of the same distance at $200,000; and it is worthy of remark that notwith- standing this great disparity of cost necessarily enhanced by the difficult country between Utica and the mouth of the Little Vermilion, the Legislature have thought proper to repeal the eighth section, just cited, and to adhere to the first plan. In fact, they have presented the termini in language not to be misunderstood, while they have given great latitude and almost everything else connected with the su))ject. * * * * * * * * * # ' * * * ‘‘In coming to this conclusion, the Board of Oommissioners are influenced, in the first case, by the consideration that if a continuous canal should be shewn to be too costly for its ben- efits. a still water navigation will be the only edternative, * * * ? 7 (Canal Comrs. Rep., 1900, ])]>. 109-10-11.) (Abst., pp. 1868-9-70.) The Canal Commissioners having projected a canal 100 miles long in order to get a land grant 100 miles long and five miles wide, and having authority to erect dams, proceeded to erect a dam at the point where their canal crossed the Des Plaines River in Joliet. That dam still exists and is known as Ham No. 1. It was built to aid navigation'; it is State property; it is subject to a lease to the (leiendant, appellee, wliieli unless otherwise terminated will expire in 191G. At jMarseilles there is another dam. The property of the Mar- seilles Land & Water Power Company, which is incorporated under the Act of Mai*ch 9th, 18 () 7 , entitled, ‘C\n Act to incorporate the Marseilles Land & Water Power Company,” found in 2 Private Laws of 1867 , at pp. 1810 - 12 . It contained the ])rovision that ‘‘this act shall not l)e so held or construed as to i)revent the State troin taking’ possession of said dam or removing it at any time for improving said Illinois liiver for purposes of navigation and without any comi)ensation therefor in case of its removal. Said company shall be paid a reasonable com- l)ensation therefor in case said dam is so constructed that it can be used in improving said river, and when so taken said (‘ompany shall cease to have any right or authority to construct another dam or dams.” And by section 4, private laws of 1869, that act did have an amendment. The date was March 9, 1867, an act to incorporate the Marseilles Land & Water Power Company. In the 4tli Private Laws of Illinois, page 498, it says : “An act to amend the charter of the Marseilles Land & AYater Power Companv, in the County of LaSalle,” approved March 27th, 1869: “Pc it enacted by the people of the state of Illinois, repre- sented in the General Assembly, that Section 4 of the charter of the Ytarseilles Land k M^ater Power Company be and is hereby amended as to read, ‘MAien the State forfeits posses- sion of said company’s dam for navigation purposes, the State shall cause a reasonable compensation to be paid said Land & Water Power Company.’ ” These are the only dams constituting obstructions to navigation of tlie river. It results from the existence of the dam at Joliet (originally built in 1856) and the dam at Marseilles (originally built in 1867) that thence forward a boat could not pass from Chicago to St. Louis or vice versa without a portage round each. One of the two was built by the State in connection with the canal ; and in the statutory permit for the other the State expressly reserved the right to take it out for navigation. The stretch between the two embraces 16 miles of the Des Plaines and about 25 miles of the Illinois River. Some boats do ply on this 40-mile stretch. But a generation has grown up siii(*e the Stale (lain at Joliet was put in, wlii('li lias not seen i ranspaiiatio)! eoiulneted by way of the river. Meanwhile railway transportation has taken) the business to a great extent away from all onr rivers from tlie Mississippi down. And in ordei* to prove the actual uses of the river for transporta- tion purposes, resort is made to the history of the uses of the stream in the past. '1. DESCRIPTIONS IN^ REPORTS ON RIVER BY U. S. ENGINEERS AND OTHERS. 1816-1817 — Major S. H. Long and Graham and Phillips (From re- port of Major S. H. Long, March -t, 1817, 16th Congress, 1st Ses- sion, Doc. No. 17.) ‘^The Illinois is formed by the union of three considerable Iiivers, the Des Plaines, 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 Vermillion, there are rapids, perceivable only in the lower stages of win- ter. 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 a medial height. In some parts of it, however, prairies and bot- toms of considerable extent, are to be met with, elevated much above high water mark. In ascending the river the bluffs grad- ually 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, oc- casionally, make their appearance along the surface of the de- clivities. ‘‘The River ]les Planes 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 valley of this river has an average width of about one mile, and is ter- minated 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 before mentioned, about 100 feet high at the mouth, and only 20 or 25 at the dis- tance of 30 miles higher up the river, where, instead of main- tainiii'g llieii* t)amllel direction, they form nearly right angles with the course of the river, that on the right, taking an east- erly, and that on the left a nortliwesterly course; but, being gradualJy inflected from these courses, they form an extensive curve, encircling a large tract of fiat prairie, in no part ele- vated more than 12 or 14 feet above the common level of the water in this vicinity. The river, throughout the above men- tioned distance, has 4 or 5 short 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 Elver Desplanes, and Chicago Eiver, by means of a kind of 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 that direction, in time of high water. The distance from the river Desplanes 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 repass with facility between the two rivers. ^‘Tlie Rivers De Page and Kankakee bear nearly the same character, in regard to their bluffs, valleys, etc., that has been given to the Desplanes. The former of these rivers takes its rise a few miles west of that of the Desplanes, and has a course nearly parallel with it. The latter rises in a flat marshy country 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 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 Desplanes, the De Page, and the Kankakee rivers take their course, appears to be under- laid with a vast bed of limestone, which occasionally makes its appearance in the valleys of those rivers, covered with a soil too thin to support vegetation. ‘‘Chicago river is merely an arm of the lake, dividing itself into two branches, at the distance of one mile inland from its communication with the lake. The north branch extends along the western side of the lake about thirty miles, and receives some few tributaries. The south branch has an extent of only 5 or 6 miles, and receives no supplies, except from the small lake of the prairie above described. The river and each of its branches are of variable widths, from 15 to 50 yards, and, for 2 or o miles inland, have a sullknent doptli ol‘ water to admit vessels oi* almost any burden. The entrance into Lake Michi- gan, Jiowever, which is dO yards wide, is ol)structed })y a sand bar, about 70 yards broad, upon the highest part of which, the water is usually no more than two feet deep. The difficulty of removing this obstruction would not be great. Piers inight be sunk on both sides of the entrance, and the sand removed from between them. By this means, the river would be rendered a safe and commodious harbor for shipping, a convenience which is seldom to be met with on the shores of Lake Michigan. # * * * ^ 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 Desplanes and Chi- cago river, needs but little more excavation to render it suf- ficiently capacious for all the purposes of a canal. It may be supplied with water at all times of the year, by constructing a dam of moderate height across the I)es Planes, which would give the water of that river a sufficient elevation to supply 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 to elevate about six feet, and that communicating with the Des Planes, about four feet. ^‘To render the Des Planes and Illinois navigable for small boats and fiats requiring but a small draught of water, nothing 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 riv- eted with stone two or three feet high, on each side of the sluice. Thus, a water commuui cation between the Illinois and lake Michigan may be kept open at all times sufficient to an- swer 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 Kankakee, may l)e constructed also in a similar manner, and with great facility, except that the distance by this route is considerably greater.” (Keport of Maj. S. IT. Long, March 4, 1817, pp. 5, G, 7.) (Abst., pp. 707-8-9.) From letter of Graham and Phillips to Secretary of War accom- panying report of Major S. II. Long: ‘‘Kaskaskia, April 4, 1819. ‘‘ By reference to the map herewith forwarded, it will be seen tliat the little river Plehi.^ (‘oiiiiiig from tlie nortliwest, ap- pi‘()a(‘lie8 within ten miles and a quarter of Lake Micliigan, and then, bending to the southwest, unites witli the Theakiki, at the distanee of about fifty miles, and forms the Kiver Illinois. ‘‘The eountiy ))etween ttie Lake and the Piein, at this point of ai)[)roaeli, is a prairie (natural meadow) without trees, (‘overed witli grass, and, to the eye, a perfect level. Prom the liank of the Piein, 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- nei', seen on the bank of the Piein. Standing on any interme- diate jioint, between the lake and the river, and the judgment is at a loss to say to which side the ground declines, and whether the level of the Piein 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. Fi'om this view it would seem that the cutting of a canal, in this place, between the Piein and the lake, vzould he a work of neither skill, difficulty or expense. Small, hovrever, 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 directivin of the Piein, and that an arm of the Piein, also called Chicago, puts out in the direction of the lake. They a]>proach 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 gutter, judging from the ap]3earance 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 me attrition 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 float 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 Piein, and that the water from Lake Michigan has been discharged, hy this outlet, into the Mississippi, and thence into the Gulf of Mexico. It is equally incontestible, that the waters of the Piein have 1241 . been driven, by the saine eliannel, into tlie bike; and these plie- noniena may now be witnessed; at any time, wlien ttie 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 opening the canal, however, two difficulties would be expe- rienced. ‘‘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 pass 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 con- tain water enough to float a boat, and so could not become use- ful as a national highway. “To remedy this defect 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 unite with the Plein lower down in its course. A few miles lower would be sufficient to give tlie water of the lake a descent into the river, as the Plein has a sensible descent in this place, insomuch that 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 bnnks, lying as a sheet of water in the Prairie, sometimes a mile wide, and so shallow that the tall grass a[)i)ears almost evei'ywhere above its surface. Having said this much of the facility of communi- cation by the Chicago, we would now remark, that several other routes are perfectly practicable. 1st. Prom a point in the lake south of Chicago to enter the Plein below mount Juliet, at or near what is called lake an Page, but which is only a dila- tion 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 ])lace in any ma}). 2d. By a canal leaving the lake near its south end, and uniting with the Thea- hihi just above its confluence with the Plein. ********** “To conclude, the route by the Chicago, as followed by the French since the discovery of the Illinois, })resents at one sea- son of the year an uninterrupted water (‘ommunication for boats of six or eight tons burden, between the Mississippi and the Michigan Lake; at another season, a i^ortage of two miles; at another, a portage of seven miles, from tlie bend of the Plein to the arm of the lake; at another, a ixirtage of fifty miles, from the mouth of tln^ I^lein to the lake; over wliicli there is a well beaten wagon road, and boats and tlieir loads ai-e hauled ])y oxen and vehicles kept for tliat purpose by the Freiu'h settlers at the Chicago.” (Letter of (jrahani and Phillips, Apr. 4, 1819, to Sec’y of War.) (Ahst., i)p. 709-10-11-12.) —Up port of (fen. J. A. Wilson, Feb. 15, 1807. Page 5, Par. 2 : ”The supposition is that the survey of this river (the Illi- nois) has immediately in view its capacity for navigation to LaSalle for the largest ])ossible class of steamers that the river will admit when certain obstructions shall have been re- moved, and ultimately the determination of canal facilities with Lake ^Michigan, 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.” ***** Su])sequently by letter from the Engineer Department, dated January 8, 1867, I was directed to continue the examina- tion of the Illinois Elver as jar toivards its source as there may l)e reason to believe that it is susceptible of improvement for the purpose of Commerce and N avigation. (Page 3.) ***** ‘^In consideration of this valuable information (i. e., maps, profiles and notes of a former survey, in 1858, ])y Mr. J. B. Preston, C. E.), and the national interests involved in the im- provement of the Illinois Eiver, I became convinced that no system would be entirely effective which did not look to the extension of good navigation for the largest class of river steamers from the mouth of the river to Chicago, on the lake. (Page 5.) . (Abst., p. 648.) ***** ”Theee is no doubt that dkedging alone, or, at most, dredg- ing and a feeder from the lake, can be made to ansiver every purpose 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 upon its banks. It forms already an important link in a network of river naviga- tion extending with its various branches, through seventeen States of the Union, and is destined at no distant day to be- come the great commercial highway between the productive States of the AVest and Northwest and the markets of the world. (Abst., p. 1698.) ^^The Illinois Eiver seems to have been s])ecially designed by nature as the line by which the waters of Lake Michigan are to be connected with those of the Mississippi. Its two 24.1 principal trihutarios, tlio Des IMaines and ilio I\ankak(;o, ris- ing* the one in Wisconsin and tlie other in Indiana, run for many miles almost parallel with the western and southern lake sliore, and are separated from the lake basin by a ridge of in- significant height and width. A moment’s 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. (Page G.) (Ahst., pp. 648-9.) ^‘Tn fact, it is the opinion of many old contractors, who are well acquainted with the entire region, that a much more fav- orable location for a steamboat canal can be obtained from Bridgeport to Section 46 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, demonstrate beyond a doubt that the waters of the lake may be carried into the Illi- nois River through a navigable channel of any required di- mensions, and at a cost which cannot be regarded as excessive when the objects to be obtained are duly considered.” (Pages 6-7.) (Abst., p. 6^49.) ‘‘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 ihaced at such points hehveen Loch- port 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 u])on the Mississippi River. This will require a depth of 7 feet both in the canal and river, and the locks to be .850 feet long between the mitre- sills, by 75 feet wide. (Id., p. 7.) (Abst., p. 649.) ***** “We can assert confidently, however, that the inter- ests of commerce and the national defense require navigation between Lake Michigan and Pie Mississippi River for the largest river steamboats; that all the physical circumstances unite in making the line, liy the way of the Illinois and Michi- gan Canal and the Illinois River, as tlie only feasible route for such a work, and that, therefore, the enlargement of the canal, and> the improvement of the river hj/ lochs and dams as here- in described, are demanded by considerations of economy, as well as by the Dublic welfare.” (P. 8.) (Abst., pp. 649-50.) * ' * * * * “It is quite evident, from what is already known, that steam- boat navigation can be more cheaply provided between Lock- port and LaSalle hy following the line of the river than hy enlarging the canal * * *.” (Id., p. 8.) (Abst., p. 650.) * “^ * • * * * 244 ^‘Tlie State of Illinois has taken this matter in hand and during its recent session of its Legislature lias passed a law providing ultimately for the improvements recommended herein.” (Abst., p. 650.) (Deep Cut Legislation followed by Drainage Canal.) (Note: The distinguished engineer treats the Illinois River as embracing the Des Plaines up to Lockport.) * ‘ * * * # 1867 . — Report of S. T. Ahert {Assistant to Gen. JVilson.) ^‘The Des Plaines branch of the Illinois approaches to with- in 12 miles of the western shore of the lake; while the Kanka- kee, another branch of the same river, may be 15 or 20 miles from the great Calumet Kiver. a tributary of the lake at its lower extremity. It is evident that any desired fall can be obtained, from the fact that the Des Plaines at Lockport, 29 miles from the Chicago Eiver, and 33 miles from the lake, is 20 feet below the surface of this great natural reservoir. (P. 21, par. 3.) (Abst., p. 650.) ‘‘The summit level of the Illinois and Michigan Canal be- tween the last named points is being now cut down to the stand- ard low-water level of the lake, for the purpose of draining the stagnant water of the Chicago Eiver. 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 Eiver at Treetop bar during the low-water stage. This sup- ply must have an ameliorating effect upon the worst navi- gable condition of the river. (Par. 4.) (Abst., p. 650.) ***** “The practical conclusion from the foregoing statement is, that a method of improvement by feeding from Lake Michi- gan 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 Marseilles rapids.^' (P. 23, par. 10.) (Abst., p. 650.) ***** “It may not be out of place before closing this report to bring together a few facts which establish the superiority of the Illinois Eiver as the route for a navigable connection between the lakeis and the Mississippi Eiver. * * (P. 28, par. 5.) (Abst., pp. 650-1.) “The sources of the river being in a lower latitude than any of its rivals, this advantage increases as the river advances in its course, and, as a consequence, less obstruction to navi- gation, and less damage to works of improvement may be anticipated from the length of the winter and the breaking u^o of ice in the spring. * «= «=?? (Par. 6.) (Abst., p. 651.) “A more important advantage belongs to the valley of the Illinois; upon it alone is a navigation practicable for the 245 largest sieaniei’s, by the eoiii[)l(‘tion of which a. union will he effected witli the best navigable conditions of the western rivers, ])ossessing an aggregate length in their niain (‘hannels of 12,000 miles, exceeding in their collateral channels and tributaries 39,000 miles, and draining an area of 91.1,000 square miles, with 90,300 square miles of lake surface, bear- ing a commerce of 413,000 tons burden.’’ (P. 29, par. 2.) (Abst., p. 651.) (That was in 1867. It is now 55,000,000 tons. Wilson and Gooding — 1868, work of 1867. Prom the Keport of General J. A. Wilson and Engineer Good- ing (1 U. S. Eng. Rep. 1868, p. 442) : ‘^The Des Plaines River rises in the State of A¥isconsin and runs nearly due south, parallel with the lake shore, and generally not more than eight or ten miles from it, until it reaches a point about 13 miles in a southwest direction from the mouth of Chicago River. Here is a slight depression, a mile or more in width, extending across from the lies Plaines to the south branch of 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 once known as Port- age Lake (so designated on the old maps of the country), but now better known as Mud Lake, a succession of shallow ponds on the same level connected with each other and with the Des Plaines River, and extending about six miles towards Chicago River. This was the portage or carrying place be- tween the waters of the Lakes and the Mississippi made memorable by the early French voyageurs, and so well known to fur traders. But Portage or Mud Lake has ceased to ex- ist, the shallow ponds having been drained, and the impas- sable swamps rendered valuable land. ‘‘There can be no doubt that through this depression there once was an outlet from the lakes to the Mississippi, which was closed by the recession of the waters from the lakes. Even now at the present stage of Lake Michigan its surface is only between eight and nine feet below the summit. The Des Plaines River, from the depression described, changes its course and runs in nearly a southwest direction until it forms a junction 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 1,000 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.” (Abst., p. 1117.) (Assistant to Gen. Wilson, 18f)8, work of 1867.) 3868. — Engineer Worrall’s report appended, pp. 459, 460-1-2-3-4, favors using the river with locks and dams, and states, p. 464, that on the Illinois Kiver “the depths are reduced almost every season upon the shoals in the bed of the stream until they do not exceed an average depth of 20 inches, thus in fact suspending naviga- tion for periods varying from 60 to 90 days, and extending sometimes, as in the season last past, to a period of 150 davsd’ (Abst., p. 1485.) Ordinarily, out of 244 days of weather suitable for navigation, navigation is suspended 75 days. This year (1867) is was sus- l)ended 150 days — a most “excessively dry season.” The depths accordingly were less than half of normal. The profile of General Wilson taken that year, therefore does not fairly represent the river. General Wilson did his work well. He did not select that year. He simply was ordered from Washington at that time to do that work, and did it, and found and reported the season an “excessively dry season,” doubling the ordinary low-water period. The same report found the fiow of the Des Plaines to be (in that excessively dry season, with navigation suspended for double the ordinary periods) 633 cubic feet per second. Double this, makes 1,266 cubic feet per second, or 75,960 cubic feet per hour. ]\Ir. Gooding in 1838 found it to be 72.000 feet per hour, and its mini- mum 60,000 feet per hour. Report of Col. J. N. Macomb and Assistant F. C. Doran, 1874-5, on Transportation Routes to the Seaboard. (U. S. Eng. Eep. 1875 ; App. C. C. 7.) (Abst., p. 651.) “This survey led to the conclusion that, on every account, the Hennepin Canal and Upper lllmois 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. * * * ” (P. 95, par. 2.) “Indeed, the Hennepin Canal, without the improvment of the Upper Illinois River and the enlargement of the eastern portion of the Illinois and Michigan Canal, would be useless i>47 as an outlet tor the freights of tlie lJ|)])er M ississi))})! Itivei'; and a earefnl consideration of the subject lias shown that the improvement of the Upper Illinois River, to ac'cord with the scheme of iniproveinent now in progress for its lower por- tion, is gredtly to he preferred as a measure of economy in its broadest sense, rather than to undertake the enlarging of the H'estern portion of the Illinois and Michigan Canal lying be- tween Joliet ayid the Hennepin basin.” (Par. 5.) (Abst., p. 651.) ‘^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 supply of water from Lake Michigan for the im- proved Illinois Eiver.” (Par. 6.) (Abst., p. 651.) (Now done by the Drainage Canal.) Report by Assistant F. C. Doran, 1875. 'Mn fact, the geological features of this route, render it pre- eminent in the matter of economv of construction. * * (P. 97, par. 2.) . ‘‘The second division, extending from Joliet to LaSalle, will consist of an improvement of the river by locks and dams. * * (Par. 3.) “Prior to the year 1872, the summit level of the Illinois and Michigan Canal was some 8 feet above the standard-level of Lake Michigan, and the quantity of water reciuisite to maintain navigation on the summit-level of the canal was supplied from Lake Calumet by a feeder and from the Chi- cago River by expensive ])umping machinery. “Some time during the year 1866, the Board of Public Works of the City of Chicago entered into a contract with the State to cut down and reduce the summit-level of the canai to the elevation of the lake. “The object of this work on the part of the city authorities was to obtain an outlet for the South Branch of the Lhicago River; that being the rece})tacle for the sewerage of a large part of the city.” (Par. 10 to 13.) Benyaurd — Profile and Work of 1883. 1884. — Maj. W. H. H. Benyaurd, in his report to the Chief of Engi- neers, U. S. A., March 5, 1884 (U. S. Eng. Rep. 1884, App. HH, Vol. Ill, pp. 1957-1962) : “The survey was commenced at Dam No. 1 on the Des Plaines River, at Joliet, and continued to a point on the Illi- nois River near LaSalle, where the Illinois and Michigan (.^aiial enters the i^ool ereated by the ioek and dam constructed by the State at Jlenry. ‘‘The rivers have an average widtli of about GOO feet, with banks from H to 23 feet in lieight above Jow water, so that witliin ordinary stages the stream flows within fixed banks. Tlie oscillation })etween higli and low water is about 15 feet, tliougii a height of 23 feet has been recorded, occasioned by an ice gorge. “The fall in the low water surface between the points in- dicated above, a distance of G4.2 miles, is 100.25 feet. This fall, however, is not equally distributed over the entire dis- tance, but occurs at various points, principally at the ripples separating the different pools, and amounting in some cases to 10 feet per mile. “It is evident, after consideration, that the only feasible plan to render the stream navigable is to slack-water the entire distance. This can be accomplished by the construc- tion 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 contemplates the construction of a short canal at the falls of Joliet, and one at Marseilles. * * * (Abst., p. 1118-9.) “The Illinois Eiver, below the termination of the present survey, has been rendered navigable by the State by the con- struction of the locks and dams at Henry and Copperas Creek. Two additional locks are now in course of construc- tion by the Grovernment, which will carry the navigation through to the Mississippi. All the locks are 350 feet long between gates, by 75 feet wide, and adapted for the passage of the largest size steamers navigating the river. ^‘With the improvement of the river now in question car- ried on, navigation will he brought to within 33 miles of the lake, and this stretch can he opened hy improving the Des Plaines higher up, and by enlarging the present Illinois and Michigan Canal. * * * • * * “With the data furnished by the present survey, it has been ascertained that the cost of the enlargement of the canal for the middle-sized locks is less than what the improvement of the river would cost for the same class of works, while in the case of the larger locks the expense would be greatly in favor of 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, etc., as the long line of canal, with its aqueducts, feeders, weirs. ot(‘., would 1)0 ii (‘onstaiii souroo oT oxpenvso. Tlio rivor i-outo lias also the advantage, when it is considered that we have navigation on a stream (>00 feet wide instead ot' the narrow channel ot* the canal. “Looking at the matter in an engineering point of view, it is difficult to understand what led originally to the con- struction of the canal, rather than the improvement of the natural channel of the river. Should the Illinois and Michi- gan Canal he accepted by the Government, and its enlarge- ment undertaken, iJiat part hehveen Joliet and LaSalle shonld he abandoned and the river route hetiveen these points adopted. “Another point in the contemplated improvement, or in the acceptance of the Illinois and Michigan Canal, demands notice. As before mentioned, two locks and dams are in course of construction on the lower river by the Government, above wdiich there is a stretch of 88 miles of river improved by and iiow under the control cf the State. Should the United States continue the improvement between Joliet and LaSalle, there will then be a part of the river forming a link between the upper and lower portions over which the State now exercises control, and upon which tolls are collected for the passage of boats through the locks.” (Eeport of Chief of Engineers, U. S. A., Part III, 1884, pp. 1958-9.) (Abst., pp. 1699-1700.) 1887. — Report of Major Handhurip Chief of Engineers^ 1887. (Abst., p. 652.) (Vol. in, Ai)pendix II.) “The United States and the State of Illinois have long been committed to the project of opening a water communication between the Mississippi River and the northern lakes of capac- ity sufficient for the wants of commerce and for the exigencies of our national defense, should these ever arise. * * “Pushing this improvement through to the lake, the con- necting line will be formed which will join the northern lakes with the vast network of navigable rivers, whose waters flow into the Gulf of Mexico, on a scale to a certain degree com- mensurate with the importance of the commerce that will be affected by it.” (Id.) “The problem of connecting Lake Michigan with the Mis- sissippi River by a commodious water way that could be used for commercial, military, and naval purposes, has received attention from our most thoughtful statesmen from the day of Albert Gallatin to the present.” (Page 2122, Pars. 2-3.) (The mere fact that such a route is available will serve as a wholesome regulation to the rates that would be exacted by other modes of transportation were this one not in exist- ence.) Report of the Comstoch Board, 1886. (See lleport of tlie Chief of Engineers, 1887, Part 8, Appen- dix II.) Eroni A'V. (1 Endicott, Secretary of War. “The Report of the JP)ard of Engineers shows that to en- large tile canal between Joliet and LaSalle, and provide for •an increased navigation, equal to that contemplated by tbe im])rovements in progress on the Illinois River, lietween La- Salle and its junction with tlie Mississippi, would reciuire an expenditure of money greater thorn, the cost of improving the river itself hetiveen Joliet and LaSalle. If such is the case, the river route shoidd he improved as recommended.’^ (page 2125, last paragrapli.) (Abst., 652-3.) “The conclusion, therefore, would seem to be clear that the United States should not be bound to enlarge the existing canal between LaSalle and Joliet, if the improvement of the Illinois River between those places will furnish a cheaper mode of communication, nor to maintain any portions of the canal the abandonment of which may become necessary or desirable in the future.’’ Same Volume- — Report of Chief of Engineers, J. C. Duane. “AVith 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 LaSalle liave 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 a cost of an enlargement of the canal between these points would, it appears, be greater than that of the improvement of the river itself, a river route hetiveen these points shoidd he adopted.” (Page 2127, par. 2.) (Abst., p. 653.) Report of Board of Engineers. (Id.) “The water way from Chicago to Grafton, on the Alissis- sippi River, is a most important one, and wdien completed there is little doubt that it will richly pay for itself in the reduction and regulation of freight.” (P. 2129, par. 3.) (Abst.. p. 653.) (“These remarks are concurred in by the Chief of Engi- neers in his letter submitting this report to the Secretary of War.” Per Major Handbury, p. 2122.) 1890. — Report of Hen) it or tj District of (Chicago, L. hL Dooley, (Jhief Fj)tgi}ieer, on the Lakes to (hilf Waterway, pp. ?)A. ‘Hireat navigable rivers, separated by a short and low port- age, tlie favorite trail of the Indian and the trapper, guided the first explorers, Joliet, Marquette, La Salle and Hennepin, whose names are memorialized in the geography of the route.” # # “The navigable waters of the Des Plaines, as reserved for public use by the original land survey (made in 1821), ap~ proached at Summit ivithin seven miles of the ivaters of Lake Michigan at the South Branch of the Chicago River at Bridge- port/’ (Abst., p. 1186.) An interesting resume of the history of the project and the early surveys follows which occupies pages 1186-1188 of the Abstract. Tliis public document had been in circulation for fourteen years be- fore these contracts were made. 1890. — From Report of 1890, Capt. W. L. Marshall, Ex. Doc. 264.. ^‘The most practicable routes across the Chicago Divide, and which have been long known and recognized, are two, each of which admits choice of location, the valleys being quite wide.” (Page 3, par. 3.) 1. ^^By wa}^ of the Chicago Elver and its South Fork, and the present location of the Illinois and Michigan Canal, or Mud Lake, and the Ogden Ditch, to the Des Plaines, near Summit, about 12 miles from the City Hall of Chicago, and about 8 miles from Bridgeport; thence via the Des Plaines River Valley uniting at Sag Bridge with route.” 2. ‘AVhich is via the Grand and Little Calumet Rivers to Blue Island, thence westward along the old Calumet Feeder Route to the Des Plaines River at Sag Bridge.” Page 12, Par. 2 : ”The two routes estimated for, i. e., via Chicago River and via the Calumet River and the ‘^Sag,” unite at the Sag Bridge about 17 miles' from Blue Island and Bridgeport, and thence to LaSalle coincide.” Chicago River Route. Par. 3 : ‘^The route proposed follows the Chicago River from its mouth, via its south branch to near Bridge])ort, thence via the West Fork of the south branch and the Ogden Ditch to Summit, thence parallel to the present location of the Illi- nois and Michigan Canal, on lower ground, 3 miles, more or less, where it enters the bed of the Des Plaines River which it prju'ticall y follows, cutting off bends to Sag Bridge, where it unites witli tlie second or Sag route.” (Abst., p. God.) Jbir. 4 : ^‘Tlie route is preferred to the present location of the Illi- nois and Michigan Canal, or one adjacent to it.” 1. ‘‘Because it occupies lower ground and the portable 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 re- moving 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 ac- cepted by the United States. These conditions are such that their acceptance would involve greater cost than a new right of way.” 4. “The Illinois and Michigan Canal is the main sewer of the City of Chicago, as well as a commercial highway, and gan not well be enlarged without either interfering seriously with its uses or at increased cost of work from delay due 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.” 6. “For several miles of its course between Willow Springs and Lemon t it is excavated in solid rock that the new route avoids, so that the old canal location could not he fol- lowed in any event with advantage further than throughout the earth section.” (Abst., pp. 954-5.) Sag or Calumet Route. Page 13, par. 11 : “The proposed route is via Grand Calumet River to 108th Street ; thence via a cut-offi through Lake Calumet to its , southwestern shore; thence by another cut-otf to the Little Calumet River ; thence to Blue Island ; thence nearly due west via, practically, the line of the old Calumet Feeder, north of Lane’s Island, to the junction of the two routes at Sag Bridge.” • (Abst., p. 955.) Par. 3: “It is believed that the most advantageous, but not the least expensive route, is estimated for via the Sag and the least expensive and most available route is selected via the Chicago River, for the estimates submitted. Over each route 253 0110 guard-look to prevent Dos Idaiiies Hood water passing into Ijake Mioliigan, carrying Chicago sewerage is estimated forC’ Par. 8: ‘‘At Sag Bridge the various routes from Lake Micliigan unite and thence the proposed canal follows practically the present bed of the Des Plaines River to below Lockport, the 14-foot channel being cut through solid limestone rock its full depth, from a point 134,000 to a point 168,000 feet distant from Lake Michigan, and partly in rock from 126,000’’ (p.l4, par. 1) “to 134,000, and from 168,000 to 184,000, where the bottom of the 14-foot channel reaches the surface below Lock- port. The line from Lockport to Joliet follows the west side of the Des Plaines Valley.” Par. 2: “Descending by four locks in the 14-foot project, and live locks in the 8-foot project, the canal enters the second basin at Joliet. Waste gates are provided for below Lockport to vent the waters of the Des Plaines at such times as they may exceed the necessities of the canal and overtop the guard- lock gates, and are of sufficient capacity to vent the natural high-water discharge of the Des Plaines. These gates will but seldom and for short times be used to their full capacity. A constant flow will not be maintained through them. They will only be opened when there is an apparent necessity for venting flood waters.” Page 14, par. 9 : “At Joliet it is ])roposed to remove both State dams; to lower the water surface of the first ])ool 2 feet for the 14- foot project, and to raise the surface of the second pool 8 feet, building substantial masonry laid in cement retaining walls 5 feet above the constant water level ; to build a new dam at the foot of this pool and place in it a movable section or suice-way, closed by a controllable gate, probably a modi- fied ‘bear trap’ of the ‘Parker’ pattern, to vent floods; to construct along the retaining wall on the east side a culvert (p. 15) or drain to carry off sipe water; to widen the Illinois and Michigan Canal by rock excavation to 160 feet; to deepen it 8 feet by raising the canal embankment by constructing masonry retaining walls; to insert in this wall, if necessary, aditional sluiceways closed by cylindrical gates of the ‘Tain- tor’ type,, to supplement the discharge through the sluice- way of the dam at floods ; to build below these sluices a guard- lock, and to continue the level to a point H miles below Joliet, where a lock is placed of 8 feet lift to again return to present levels in the Illinois and Michigan Canal. The line then leaves the present canal in a direct line to Lake Joliet, and thence to LaSalle occupies the beds of the Des Plaines and Illinois Ivivers, except at Atarseilles, wliere a short canal is constructed around the rapids at that point.” Par. 3: ‘‘In the river portion of the route the required depths are obtained l)y the aid of dams, as far as practicable. The dams are su})posed to he as liigli as admissilde, without too great damage l)y howage, and the additional depths recpiired are obtained by excavation in the beds of the river. The water surfaces are, therefore, common to the two projects. The excavation required over the river section for the ll-foot pro- ject is very great and expensive, and tlie material if not en- tirely removed from the high-water channel will diminish its cajiacity. The estimates are not based upon the removal of this material and placing it upon the top of the hanks, hut simply for removing it from the navigable channel and its de]^osit within the hanks where it will not probably re-enter the excavated channels. If it he desired to enlarge the ca- pacity of the natural channel of the upper Illinois this exca- vated material must be removed beyond the high water limits at increased cost.” Comparative Advantages of the Ttvo Routes Front Sag Bridge to Lahe Michigan. Page 17, Par. 1 : “The Chicago River and its branches, with its docks and slips, constitute the harbor of Chicago, where all business of the port by lake craft, except a comparatively insignificant amount at the Illinois Central Docks and Ogden Slip, is trans- acted.” Par. 2: “The arrivals and departures of vessels have reached the enormous aggregate of over 22,000 annually, in a season of navigation of about seven months, making Chicago the first port in the United States, as far as number of arrivals and departures is concerned.” Par. 3: ^ ^ “Along this river are great lumber and coal yards, grain elevators, meat packing establishments, and, generally, all the means and appliances, and paraphernalia of the great coimnerce by lakes centering at Chicago, as well as the facili- ties for transfer from rail to water transportation.” Par. 4 : “If the Cliicago Eiver could be made, at reasonable ex- pense, capable of permanently accommodating the increased commerce that the opening of a thorough route of transporta- tion of great capacity between the lakes and the ^Mississippi River will probably bring about, there could be no question of 255 the i)roi)er ienniiiiis of the line, as fai* as th(* lnt(‘rests of (p. IS) e()niiner(‘e are (*on(*erne(l. But, on the other iiarul, the river is very crooked, and ohistructed hy nuiueroiis swin^ bridges, nearly all of them of less than 80 feet clear s})an, and in any inovement loaded vessels recjuire the assistance of tugs.” Practkability of the Proposed Channel, Discharge of the Illi- nois Biver, and Effect of Dams in the Bed of the Illinois. Page 20, par. 7 : “The proposed 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 Des Plaines Elver, 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 av- erage spring freshets do not probably exceed from 3,000 to 6,000 cubic feet per second. The canal with its waste gates and weir at Lockport; the controllable sluice-gate in the dam at Joliet; the additional sluice-gates in the canal revetment below the dam and above the guard-lock at Joliet (not esti- mated for), taken in connection with the high retaining walls and the allowable depth of (werflow over the crest of the Joliet dam, will safely pass this water.” Par. 8: “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 Les Plaines as far as to the flats below Adams dam, to prevent overflow when the sluices at Joliet are opened to their full extent.” Page 21, par, 2 : “There is, then, no engineering difficulty, or any apparent reason why the construction proposed, with slight modifi- cations that would not materially increase the estimates, will not satisfactorily subserve the pur])ose of a navigable channel as fai’ as the mouth of the Kankakee.” (Abst., ))]). 951-2.) “The route will be navigable at all stages l)elow 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.” (P. 21, ])ar. 7.) (Abst., p. 952.) (This report was written in 1890 on the survey of 1889, the year the Prainage Canal Act was passed and l)efore any work on the Drainage Canal was done, and is chiefly taken u]) with arguments 25(1 against the (vlTK'ago Drainage (•anal, wliieli lias since been con- structed.) ‘‘Tlie inci'CAised discharge on account of the benefits to navi- gation stated above tvould he desirable only during the low- nmter stages, but the discharge is proposed to be constant, wbetber it be beneficial or barinful. ^ (P. 27, par. 9.) ‘‘Granting the necessity for a channel-way of large capa- city across the Chicago Divide, a narrow and deep channel with a more or less rapid current is not of the character de- manded by Western river navigation. The heavy husimess of these rivers, especially of the Mississippi and, Ohio, is trans- acted by barges and towboats, or by wide, flat-bottomed steam- boats of comparatively light draught. If any channel, there- fore, of materially greater capacity than the minimum herein estimated for be constructed by the United States Govern- ment across the Chicago Divide, it would be infinitely better for purpose of commerce and navigation that it should be doubled or trebled in width, with the locks suitably increased in span and length to accommodate powerful towboats with their full tows than that it should be restricted in width and made so deep, with a more or less obstructive current there- in.” (P. 32, par. 2.) “This artificial discharge is not necessary for navigation anywhere along the line, and cannot be said to benefit navi- gation anywdiere to such an extent as to justify the United States Government assuming responsibility for flowage dam- age caused by it.” (P. 34, par. 1.) C 0 mm e rci al Advantages. “This route has invited attention as a practicable locust for a water-way between the Great Lakes and the Mississippi Eiver for many years, and its advantages have been so often reported to Congress that anything herein said would be mere repetition. It is sufficient to say that the minimum channel herein estimated u]>on will open a channel of commerce with a maximum annual capacity of 29,000,000 tons between the Great Lakes, with its terminus at their greater port, and a system of navigable rivers penetrating one-half of the States and Territories of the Union, with a total navigable length equal to more than half the circumferenice of the globe.” (P. 34, par. 2.) ***** Report of Assistant, L. L. Wheeler. “The Mud Lake Valley was originally separated from the Des Plaines Kiver by a low bank raised probably l)y the river itsoir. 1^his bank, was (*iit atid lli(‘ (*ily liaiS since; l)(;(;n (;n- ^aged in an effort to i)revent the water of the Des Idaines I\iver (‘oining- down tlie West Fork and carryirig the sewage into the lake. “A dam, known as the Ogden Dam, has been tmilt near Snnmiit across the Ogden Ditcli, where it leaves the Des Plaines lliver, the crest being al)out 11 feet above city datmn. The Hoods come over the dam, and over the adjacent banks, and How out to the lake through the Chicago lliver, carrying witli them the accumulated sewage which the feeble current created by the pumpis had not been able to remove. The caual drains the country south and east of it, and when the amount of storm weather is large it overtops the lock-gates at Bridge- port, wdiich are then opened and the Hood Hows out to the lake, through the river.” (P. 40, pars. 4 and 5.) (Abst., p. 1276.) ‘‘The proposed water-way 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, l)ut it is necessary to take into account the local conditions and to pro- vide for preventing the waters of Des Plaines Kiver going to Lake Michigan, through the Chicago or Calumet Pivers, carry- ing with them the sewage of the city of Chicago. “From Summit to Sag Bridge the pro])osed route follows the valley of the Des Plaines Diver, 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 How of the river above Summit is very small, and the maxi- mum measured high-water discharge about 10,000 cubic feet per second.” (600,000 cu. ft. ])er minute.) (P. 40, pars. 6 and 7.) (Abst., ]). 1276.) “After the junction of the (Hiicago and Sag routes the line follows the bed of the Des Jdaines Diver about two miles, when the up-lift of limestone is met just above Lemont. Fi’om this point to near Lockport the pro])osed line lies in limestone rock overlaid by a thin covering of soil, in many ])laces the rock being entirely bare. The valley varies from one-half to one mile wide, and through this the river winds at lower stages in a bed from one to three feet deep. At higlier stages it spreads out over the valley, which is mainly used for pas- ture. “From Lockport to Joliet the valley is wide and the de- clivity great, the total fall of the river being about 35 feet in three and one-half miles. The present canal enters the Des Plaines Diver from the east near the northern limits of Joliet in the pool formed by Dam No. 1. At this dam a lock with a 58 lift of .10 feet locks tlie koats down to tlie pool formed hy Dam No. 2. The canal leaves the river from this pool through a guard-lock and continues in embankments along the right bank of the river. Below Dam No. 2 is a dam built for water- power, known as Adams Dam. The fall over the several dams at low water is as follov/s: Dam No. 1, 10 feet; Dam No. 2, 8 feet; Adams Dam, 0 feet. The lengtlivs of the dams in the order named is 250, 200 and 120 feet, respectively. Below Adams Dam the river continues two miles in a series of rapids to Lake Joliet, the total fall of this portion at low water be- ing 10 feet. The total fall from Lake Michigan to Lake Joliet, both being at lovv^ water, is 76 feet.” (P. 41, pars. 6 and 7.) ^M.jake Joliet is about 5 miles in length and from 400 to 800 feet wide. It is simply a gorge cut in the rock to an unknown depth, the rocky shores rising from 30 to 60 feet above the water. The depth of water varies from 8 to 16 feet, but the lake is largely filled with sewage deposit. At the lower end of Lake Joliet, Treat’s Island divides the river into two channels. The beds of these channels appear to be composed of large boulders, sand, and gravel, although rock in place may be the foundation of the island itself. Borings along the left channel show that solid rock does not rise above the bot- tom of the proposed water-way. A short distance below the island the river bed is smooth rock, and limestone rock out- crops on both banks. The total fall by Treat’s Island at low water is 10 feet in 14 miles by the left channel. ‘‘From Treat’s Island to the mouth of the Kankakee Eiver ■the Des Plaines flows between high fixed bridges, the low water width being from 300 to 600 feet. At the mouth of Du- Page river is a fall of about 3 feet in a distance of about 1 mile. The bed of the river is either rock or a thin layer of bowlders and gravel overlaying rock. * * * “The Illinois Elver is formed by the union of the Des Plaines and Kankakee Elvers, the latter contributing much the greater volume of water. Commencing in the Des Plaines one mile above the junction, and extending one mile below, are rapids, the total fall being 8 feet at low water. The river bed in these rapids is limestone rock. * * * The low- water discharge does not much exceed 1,000 cubic feet per second, including amount pumped at Bridgeport, while the high-water discharge is about 70,000 cubic feet per second.” (P. 42, pars. 2, 3 and 4.) “Upon reaching Chicago with the levels and connecting with city bench marks, Chicago datum was found to be 151.5 feet above Hennepin datum. This value differs .8 of a foot (9.6 inches) from previous ones, and the entire distance teas relcveled in liopes of finding the cause oC this discrepancy, bnt no appreciable error was found. Idie previous value of the relation of the two datums was 152.3 feet/’ (Id., p. 43.) From lleport of 1890, Capt, W. L. Marshall, Ex. Doc. 264. ‘‘At the lower end of Lake Joliet, Treat’s Island divides the river into two channels. The beds of these channels ap- pear to be composed of large bowlders, sand and gravel, al- though rock in place may be the foundation of the island itself. Borings along the left channel show that solid rock does not rise above the bottom of the proposed water-way. A short distance below the island the river bed is smooth rock, and limestone rock outcrops on both banks. The total fall by Treat’s Island at low water is 10 feet in 14 miles by the left channel. “From Treat’s Island to the mouth of the Kankakee Kiver the Des Plaines flows between high, fixed banks, the low water width being 300 to 600 feet. At the mouth of DuPage Kiver is a fall of about 3 feet in a distance of about one mile. The bed of the river is either rock or a thin layer of bowlders and gravel overlaying rock. This portion of the river is subject to backwater from the Kankakee, the highest waters being due to that cause. There is very little land subject to over- flow along this portion of the route.” (Page 42.) “The project for reaching LaSalle from Lake Michigan with the proposed water-wa}^ includes the excavation of a level cut through the divide from Lake Michigan; the con- struction of a guard-lock to prevent the flood tvaters of the Des Plaines River from going to Lake Michigan; the construc- tion of suitable gates and weir above Lockport to regulate the amount of water flowing in the canal ; the construction of re- taining walls, locks and dams to carry the canal down the slope past Joliet to Lake Joliet; and the improvement of the Des Plaines and Illinois Rivers by means of locks and dams and by excavation.” (Id., p. 45.) The borings in the river given in this report (pages 69 to 72) are all platted on McCullough Exhibit 2a, and are shown to occur above Joliet, above Lockport, above Lemont, and between there and 4Villow Springs, in the smallest and shallowest reach of the river, and to have been made between July 28, 1889, and August 1889, and to have shown water in the river as follows: Deptli of Water feet. in No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. 4G, 47 48, 49, 50, 51 , 52, 55, 54 55. 56. 57. 58. 59. 60. 6 . 9. 8.5 6 . 8 . 8.7 5. 7.1 7. 8.5 8 . 6 . 11.5 10.4 15)110.2 or an average of 7.34 feet depth. (Abst., pp. 654-5.) Ex. Doc. No. 264 (Report of Marshall), pp. 119-128. ‘‘VI . — List of merchant steamboats navigating the Missis- sippi Biver and its tributaries with a depth less than 7 feet. ‘‘Data obtained from the twentieth annual official list, pub- lished 1889.^’ 201 (Tlie report gives a list of 087 })oats, of which we give liere only the boats having a depth of 2.5 feet or less.) Tonnage. Gross Net Name — Tons Tons Length Breadth Depth Advance , ... 82.83 59.79 70.0 18.0 2.0 Alert . . .158.98 158.98 130.0 24.1 2.2 Belgrade . .. 89.26 89.26 96.0 18.0 2.5 Bob Henry ... 80.24 55.44 91.4 16.6 2.4 Border City ... 96.96 88.86 108.0 21.0 2.5 Boston ... 70.77 57.10 65.0 16.0 2.5 Caney Fork ... 83.90 83.90 126.0 19.0 2.0 Clara ... 60.95 60.95 87.0 14.0 2.5 Claribel ... 71.48 56.66 lOO.O 18.8 2.0 Eli . . .140.25 120.25 106.0 21.5 2.5 Ella . . .284.70 184.70 148.0 28.0 2.5 G. H. Van Etten . . .119.30 119.30 130.0 24.0 2.0 General Miles ... 72.45 72.45 95.2 17.3 2.1 Hettie Mason ...113.94 56.70 86.0 20.5 2.5 Jimmie B ... 58.32 58.32 97.3 20.0 2.3 Pearl *. . ... 73.98 73.98 140.0 22.0 2.0 R. E. Phillips ... 84.06 79.60 110.8 20.0 2.3 Two Brothers ... 69.13 48.13 91.9 16.0 2.5 Undine ... 72.90 72.90 112.0 30.0 2.0 Vienna ... 73.17 73.17 89.6 24.0 2.3 W. P. Bishop ... 69.09 48.09 93.9 16.5 2.5 William Wagner ... 52.25 52.25 100.0 17.0 2.0 At that time there were 22 such boats in commission, with length from 148 feet maximnm to 65 feet minimum; breadth ranging from 30 feet maximum to 14 feet minimum ; depth 2.5 to 2 feet and net tonnage ranging from 184.70 tons maximum carried by the longest l)oat to 56.60 tons carried by a boat 100 feet long. (Abst., pp. 656- 7-8-9-60.) 1900. — Bepoht of Chief Engineers, 1900, Part V, Report of Board OF Engineers, Col. d. W. Barlow, Chairman: ^‘If the route by the (biicago 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 aliout 101 miles of the Drainage Canal can lie utilized.” (Page 2489, Par. 1.) ^‘But while the Drainage Cbnal covers about half of the Avork involved in tlie project by way of Chicago liiver, it at the same time has turned an additional flow into the Des Plaines Itiver, materially changing its low water regimen. The requ i remen tsi of this flow at present are 5,000 cubic feet per second, while the limit of 10,000 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 now 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 discharge 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 entailing great expenditures for the necessary works, as well as for the purchase of lands overflowed, the cost of which cannot even be approximated from present information.” (P. 2489, par. 2.) ‘‘At the foot of the page, the last paragraph : ‘At the Mar- seilles Eapids a canal about 7.4 miles in length is required to overcome a steep slope there encountered, and it is proposed to make the section not less than 160 feet wide at bottom, and 10 feet deep, in order to correspond to an eight-foot navigation in the river channel at low water.’ * * (Page 2490, par. 1.) “* * * 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 Amlocity of current will be met in this stretch as in that be- tween Utica and Marseilles, and an estimate for both excava- tion 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 being also necessaiy for fluctuations of leA^el at the upper lock. The estimates of the Board are based upon overcoming this difference of elevation by five locks, but further stiidv mav result in a reduction of the number.” i P. 2490, par 2.)' (Abst., pp. 1125-6.) 1901. — Eepoet of the Chief of Engineers, 1901, Part IV, pp. 3050-3060. Eeport of Board of Engineers, Col. J. W. Barlow, Chairman: “While the Upper Illinois and Des Plaines Elver are at present non-naAngable” (plainly referring to naAugability by the large class of steam vessels drawing seven feet and over, to icliich the rest of this report refers)^ “the commerce of the Illinois and Michigan Canal, which has been constructed in the 2(\:\ valleys ol* iliese ]-ivers, may be takcai to i-ej)i*(‘sent the present (‘ommeiTe of such a route/’ (Abst., p. 11)00. — l\KPoirr OK Khnst Boaiu) on 14-Fket Watekvvav. II. R. I)o(‘. both Congress., 1st Session: PRESENT IMPROVEMENTS. ^‘Tlie total distance from Lake Michigan to Grafton, at the mouth of the Illinois, is 327.28 miles. Beginning in Chicago River, 6 miles from lake, the Illinois and Slichigan Canal ex- tends to LaSalle, 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 fall- ing into decay, which bids fair to soon become total. It is barely navigable for vessels drawing 41 feet. For certain purposes it has been replaced as far as Lockport by the Chi- cago Drainage Canal, as will appear further on. Below La- Salle the Illinois River has been improved by the State of Illinois, with locks 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 im- proved 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 intended to extend these dimensions of waterway to Lake Michigan to replace the obso- lete canal, but when the State of Illinois decided to authorize the Chicago Drainage Canal iz abandoned 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 con- structed by the United States be removed. It declared in favor of a channel to be constructed by the United States not less than 14 feet deep from the end of the drainage canal at Lockport to LaSalle, ‘to be designed in such manner as to permit future development to a greater capacity.’ (See joint resolutions, adopted May 28, 1889, and Atay 27, 1897, copies hereto appended, Ayipendixes 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 ovm expense, to lower the Government dams, and on the 23d of Alay, 1904, permission was granted by Secretary of AVar 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 condition that it hold the United States harmless from any claims for dam- nf»es vvliicli result from rlie operation of tliese movable crests.” (P. D.) (Ahst., p. 1700 .) CinCAGO DRAINAGE CANAL. ‘‘P>esi(les being’ a bigliway of commerce, the Illinois and Mi(*bigan Canal has from the beginning served to cany off the sewage of Chicago. The Chicago River has always been the main receptacle of the sewage of the city, and as the vol- ume of sewage lias increased with the growth of the city addi- tional facilities for discharging it into the canal have become necessary. AVhen the canal was opened in 1848, a pumping plant was established at Bridgeport, where it joins the Chi- cago River. In 1800 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. The work Vvms completed in 1871 and the pumping 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 discharging capacity of the old canal was quite inadequate to carrying the volume of water required to dilute the sewage and that a new and greatly enlarged channel must be provided. The Chicago Drainage Canal was then constructed and was brought into use in January, 1900. It has not yet been completed to its full capacity as designed. When fully completed it will have a caj)aoity of about 10,000 cubic feet per second, flowing at a low velocity. (Id., p. 10.) (Abst., pp. 1127-8.) PLAN, LOCKPORT TO UTICA. (P. 16, ef seq.) ‘‘Between Lockport and Utica, 5 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 distance 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 ]\[ichigan Canal. The Board decided to adopt the river route because the greater width would afford better facilities for navigation, and be- cause subsequent enlargement could be executed at less cost and without interfering with navigation ; also because a water- way by that route could be constructed at less cost in the first instance and the annual charges for maintenance would be less. In reaching this conclusion a careful investigation wms 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 Joliet. At each of these places a canal about 3 miles long is proposed. At several other _ 205 pl«u*es foi* short distiuioes veloeiiios of 2). 5 to 4 niiles j)(‘r hour luny bo ox[) 0 (*to(i, but, although soincwhat obstruoti vo, thoso arc not ])rohibitivo, and as the Hoods wlii('li (-ause them are of short duration and occur only at intervals the inconvenience is believed to be of small impoi-tance. ” (Abst., [)p. 000-1.) ^‘tiie river route vs. the canau route erom uttca to lockport.’’ (Page 39, par. 7.) ^^Prom Utica to Lockport it is possible to construct a deep waterway either by canalizing the Illinois and Des Plaines rivers, or by building an overland canal along the line of the old Illinois and Michigan Canal. In either case deviations would be necessary along certain portions of the lines, bnt the above descriptions indicate the general location of the two routes.’’ ‘UAs a result of these investigations, the following argu- ments were summarized against the advisability of construct- ing a 14-foot waterway along the line of the Illinois and Mich- igan Canal : The present canal is admirably located, for a canal of 60-foot width and G-foot depth, but at the Kankakee bluffs, near the junction of the Des Plaines and Kankakee Rivers, and at the bluff which is located a short distance above LaSalle, the canal could not he increased to a width of 160 feet, except at immense cost, as it ivoidd he necessary to cut away the sides of the bluff sd^ (P. 40.) ^^2. Expensive aqueducts would have to be constructed over Aux Sable River, Nettle Creek, Fox River, and the Little Vermillion River. On account of the increased depth, the headroom under the canal would be reduced at least 8 feet, making their maintenance a questionable proposition. For the same reason most of tlie 17 existing culverts of various types would become inverts,’ and their maintenance would be a ceaseless expense and annoyance.” There are at ])resent 15 spillways, most of which are necessary on account of the reception of creeks into the canal. New spillways would have to be built, and ('ontiniial dredging Avould be necessary in their vicinity, on account of the sedi- ment brought in by these tributaries.” ‘M. About twice as many bridges would have to be built, maintained and operated along the canal route as along the river route. Twenty bridges would have to be built or rebuilt by the river route and 39 by tlie canal route between Lockport . and LaSalle.” Slope walls or bank protection of some kind would be necessary for practically the entire length of the canal. This would be expensive in the first cost, and require frequent re- pairs.” ‘^6. An interurban electric railway has been built parallel to and adjoining the canal at several places, amounting to a total distance of 7.7 miles. Streets and highways have been constructed along the canal for a distance of 16.5 miles. If the canal was enlarged, new sections of right of way would have to be secured and the railways, streets and highways re- built for these distances.’’ ‘‘7. The towns of Morris, Marseilles and Ottawa have been built up along both sides of the canal, and the purchase of the additional right of way necessary for the widening of the canal would be expensive. ’ ’ ^^8. The amount of excavation would be greater along the line of the canal than in the river. As a rule the present water surface could not be raised, which means that there would be 8 feet of excavation below the bed of the present canal. In addi- tion to this the existing canal bank on one side would have to be removed, and the excavation outside of the present canal would be more than 8 feet. Kock would probably be encoun- tered in as many miles as in the adopted river project.” ^^9. Navigation would be much more inferior in a canal 160 feet vdde than in an open river 400 to 800 feet wide. The whole river would not be available for boats drawing 12 or 13 feet, but boats of less draft could utilize the entire width over a large portion of the stream.” ‘^From a consideration of the arguments given above it was concluded that the river route is preferable for the following reasons : ^ n . It is the cheaper in first cost. ‘^2. It can be maintained at less cost. ''3. It will afford better navigation on account of its greater width. ^‘4. Subsequent enlargement can be executed at less cost and without interfering with navigation.” ‘^VELOCITY OF CUERENT IN THE UPPER ILLINOIS AND LOWmR DES PLAINES RIVERS DURING EXTREME HIGH WATER.” ‘Mn order to ascertain whether the current which obtain in the upper Illinois and lower Des Plaines Kivers during ex- treme high w^ater would prohibit navigation at such times, the velocities were computed at 16 points between Utica and Joliet for the highest water or record for each station. These re- sults, which are shown in the following table, are based upon the following held measurements, and are entirely independ- ent of any assumptions or theories. Page 41 : 207 ]\1EAN VKLOCITIKS OK CUUliKNT IN UPI’Kll ILIJNOI^ AND hOWKil DKS I’LAINKS HIVKHS DUKINO IIKOI WAI’KH. Location Utica highway bridge Ottawa highway bridge P'oot of Moore’s Island 3.6 miles below Marseilles dam 2l4 miles below Marseilles dam 1 mile below Marseilles dam lJ /2 miles above Marseilles dam miles above Marseilles dam 700 feet below Seneca highway bridge Morrris highway bridge 1 mile below mouth of Kankakee River Kankakee Cut-off One-fourth mile below foot of Treat’s Island miles below Brandon bridge Jefferson St. Bridge, Joliet Area Dis- Mean Miles of charge Velocity from cross cubic Graf- Year Eleva- section feet Feet Miles ton tion .square per per per Let second second hour 229 . 7 1892 468.4 17,014 70,952 4.17 2.8 Discharge does not include bottom overflow. 239 . 8 1892 475 . 3 16,307 85,000 5.21 3.6 242.0 1892 476.6 13,784 71,300 5.17 3.5 Discharge does not include bottom overflow. 243.4 1892 477.3 ir,900 70,000 6.30 4.3 Three- -fourths mile below Bell’s Island. 244.7 1892 479.3 11,784 75,000 6.36 4.3 One-fourth mile above Bell’s Island. 247.5 1892 493.5 14,736 74,500 5.06 3 . 5 Foot of Ballard’s ' Island. 248.5 1892 495.1 12,320 74,500 6.05 4.1 One-fourth mile above Ballard’s Island. 250.5 1892 497.9 12,736 74,500 5 . 85 4.0 2 miles above Ballard’s Island. 252.6 1892 502.3 13,552 74,000 5.46 3.7 263.3 1892 507.6 16,079 49,116 3.06 2.1 Discharge does not include bottom overflow. 271.9 1892 510.1 16,080 73,730 4.50 3.1 274.9 1904 511.1 7,856 28,700 3 . 65 2.5 278.9 1904 513.6 6,976 22,000 3.15 2.1 284.1 1904 517.6 6,608 22,000 3.33 2.3 287.9 1904 533.6 2,016 22,000 10.91 7.4 ‘‘This table is designed to show the greatest velocities which occur from Utica to Joliet. A study of the table, in connec- tion with the profile, indicates that from Utica to the foot of Moores Island, a distance of 12.3 miles, the maximum velocity varies from 2.8 to 3.6 miles per hour. From the foot of Moores Island to the middle of Bells Island, a distance of 2.3 miles, the velocity increases to 4.3 miles per hour. From this point up-stream the velocity continues to increase as we ap- proach the Marseilles dam, which is 247 miles from Grafton. One mile below the dam the velocity was 5 miles per hour. Just below the dam it has been impossible to compute the veloc- ity, as there is not sufficient data on hand, but it was probably not less than 7 miles per hour. From the Marseilles dam to Seneca, a distance of 4.4 miles, the velocity varies from 3.5 to 4.1 miles, the greater value being found at only one section. From 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 to this, viz., at the mouth of the Des Plaines River and at Treats Island, where it is impossible to compute the velocity, as there are not sufficient data on hand. It would probably not exceed 4 miles per hour, at either place, for a distance of about one-half mile. Proeeodiiig irp-streain from Lake Joliet tlie velocity increases ip) to Dam No. 1, at Joliet. At the Jefferson Street Bridge the computed velocity is 7 A miles t)er hour for the flood of v,m. ‘^From the preceding investigation it has been decided that the velocities which obtain during extreme high water are pro- hibitive only below the Marseilles and Joliet dams. Under the adopted project a canal about 3 miles long has been provided along eacli 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 prohibitive, and as these floods occur only at rare intervals and are of short duration, it is not consid- ered 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 Kan- kakee River and at Treats Island.’’ 3. Depths of the des peaines. The greatest recorded depth of the Des Plaines in the 16-mile tract in question is 816 feet. The lowest recorded depth is none at all just below Dam No. 1, the entire river being turned by a side gate into the canal. The height of the dam is 10 feet. See Eng. Report, 1890, Ex*. Doc., 264, pp. 41-42 : ‘Mn low water the canal took the whole of the river.” (Ev. Cooley, Abst., p. 829) ; (Ev. Elwood, Abst., p. 1110.) The space from below the dam to the mouth of the DuPage was substantially without water in low- water periods, owing to the use of the entire water to feed the canal. This is no evidence as to the depth of the Des Plaines itself. In the 12-mile level the lowest depth was about 18 inches in ex- treme low water. (Cooley, Abst., p. 807.) The 12-mile level began at the range line between 12 and 13 East, north of Summit, at the old Portage Slough, right at the Ogden Dam. The low-water line of 1883 was established by Major Ben- yaurd’s survey in 1883, reported in U. S. Engineer’s Reports for 1884. (Cooley, Abst., p. 814.) ‘‘Water gauges were established at 10 different points be- tween Joliet and LaSalle and careful readings made of the height of water surface for each day during the period occu- pied by the survey. * * * The profile of the river bed was determined by sounding cross-sections about 500 feet liO:) apart, ox(*e[)t in ilio dee}) water pools, tlirougiiout the entire (lis'tanee (from Joliet to JjaSalle).” (Ke])ort of (j}eo. Y. Wisner, assistant to Major Benynard, U. S. fJig. liep., 1884, Vol. Ill, p. IJdO.) (deferred to, Abst., p. 1119.) Suninian/ of Cooley’s Testimony, as to Depths and Profiles. The low-water line of 1883 was established from the record kept at those gauges and from intermediate levels, and all soundings made in the river bed were referred to this low- water line, and it has been the standard in all surveys since 1883. (Cooley, Abst., p. 814.) Cooley Exhibit 2 is a map accompanied by a profile of the lies Plaines Piver from Lockport to its month. It is on a scale of 1 inch to the mile and shows the course of the river, the course of tributaries joining the river, the location of the I. & M. Canal, the topography adjacent to the stream and the geographical points in the territory delineated. It is correct. Cooley Exhibit 3 is a consolidated profile which represents all the gauge records and substantially all our information, including data from the different Government engineers’ reports. In con- nection with it we have consulted every record that has been made that was accessible and all the profiles* that have been platted in connection with the river. It truly and correctly depicts the gauge readings according to the accepted method of depicting them by hydraulic engineers. Profiles admitted in evidence, Cooley Abst., p. 813. On this consolidated profile, Cooley Exhibit 3, the bottom shown as ‘^Bottom in 1883,” is the bottom as determined in the Benyuard survey, with such measurements as were made in the Marshall survey and reported in the volume of maps of Captain W. 1 j. Marshall in 1890. We have compared with that another survey made by the Barlow Board, which with certain changes and amend- ments was reported in the volume of maps published by the Ernst Board in 1905, and that represents the second or dotted line which shows changes in the bottom in the pools known as Lake DuPage and Lake Joliet. (Cooley, Abst., p. 814.) 270. Near the extreme northeast point shown here is Dam No. 1 and so labelled. Near the extreme left hand or southwesterly limit is labelled ‘‘E. J. & E. Ey. Bridge,’’ about two and a half miles below the confluence of the Kankakee. The entire reach of the river be- tween those points is shown. (Ev. Cooley, Abst., p. 814.) The profile follows the line of the river from Dam No. 1 down to the E. J. & E. Eailway bridge, two and a half miles below the conflu- ence of the Kankakee and Des Plaines, 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 vertical. It is customary to exaggerate the vertical scale sufficient to visualize the slopes and declivities. (Cooley, Ahst., p. 814.) On the bot- tom of the label, ‘ ‘ From Power Station Miles, ’ ’ and then a row of figures, 3, 4, 5, running down to 20, down below — a little below the Dresden Island head, the distances are given from the power sta- tion 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 repre- sent thousand feet distances. Tlien you have horizontal lines drawn across the profile from left to right, with the label on the left end, ‘‘Feet below Chicago datum,” and these vertical lines be- ginning 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. (Cooley, Ahst., p. 815.) The volume is expressed in cubic feet of water per second of time, and these several lines represent the profile of the water surfaqe as it would he and is at the volume expressed upon the line, which is when that amount of water is passing. It is an interpretation 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 different lines, including the top one. High Water, 1892. For instance, here is a line labeled “13,000 second feet” ; the water in the Des Plaines Ivivor anioiiiited to lo^OGO seoond I'eet in 1892 and 1904. (Cooley, Abst., p. 815.) l>otli liigli waters were very nearly at the same elevation, as shown by the 1892 line, and corresponded to volumes oi* 25,000 to 30,000 second feet, I don’t remember the exact amount. We have here crossing the profile a blue hand 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 Des Elaines Diver. There is one line among others which we used in checking these flood lines, low water lines as shown upon the profile of the last survey reported in 1905. That line corre- sponds 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. That is, the 4,400 feet line would be a little above the 4,000 feet line. (Ev. Cooley, Abst., p. 815.) We did not draw any pro- files of different surveys upon this map, but simply put the regular lines across so as not to confuse the profile. It would have con- fused the profile 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. Above all these lines are various distinguishing labels, like Dock Dun, Brandon Bridge, Cedar Creek, Head of Treat’s Island, and so forth. Those represent geographical points along the course of the river and opposite the points on the profile desig- nated. For instance, here we have a vertical line near the middle of the profile 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 profile, 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 plus 1,000 feet below the power station. It is geographically correct, and so are the other geographical indications. (Ev. Cooley, Abst., p. 816.) 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 be- low (liioa^o (latum; and the hod}’ ai)ii)areutly ot water, painted hi lie, between tlie bottom of tlie river and tlie low Avater mark of the river, is just a (piarter of an in(di liigli ut that point. A cjuarter of an ineli on that scale would mean two and a half feet; that would mean that the low water mark of 188d, at that point— the water was two and a half feet deep. At tliat same jioint tlie 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 feet of water pass- ing that point the depth would be five feet. (Cooley, Abst., p. 816.) Down here at a iilace near the left-hand end, labeled ^‘Economy Light and Power Co. Plant,” and a vertical line drawn there, that repi’esents the site of the dam. dust a little to the west of the 18-mile line, the 4,000-feet stage at a slight elevation at the bottom there, is 6-16 or f of an inch away from the line marked ‘‘Low water line.” That indicates a differ- ence in the elevation of 8.75 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 Des Plaines River shown by this profile, the shallowest depth of water at the low water mark in 1883— the point of least depth on this profile is within 100 yards up-stream from the site of the dam of the Economy Light and Power Company. (Cooley, Abst., p. 816.) The indicated depth at that shallowest point is not far from eighteen inches. It is shown on this profile to be fifteen inches. (Cooley, Abst., p. 817.) I think a fair interpretation of those lines as draftsmen draw lines, the center line of course, and no clearances in between, make about an eighth of an inch. Using this scale I have here, the depth at the 4,000-foot line above that little jut (projecting upward from the bottom), 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 other end of the map, the northeast end, we have got Hickory Creek represented, and there seeius to be a place, per- haps 1,200 feet to the left, just below Hickory Creek, where a little nubbin in the bottom sticks up, which T should say is from 16 to 18 inches. (Cooley, Abst., p. 817.) Those represent the shallowest places in this reach of the river from Dam No. 1 to the mouth of the river, proportionately the leiig’tli of tlie cliannel tliroii^’li \v'lii(*li those sliallovv spots extend; and the balance of the river in depth, I think thei'e are depths run- ning about twenty feet on that profile, and down to these minimums wliieli have been stated, whicli are for very limited distances. The shallow spot just beloAV' — about a tbousand to fifteen hundred feet below the label Du Page River, is the bar formed by the deposit from the Du Page River, and the depth there is about twenty inches. The depth there since the turning in of the Sanitary Dis- trict 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 profile and the bed of the river is indicated as coming between the lines 50 and 60, three-quarters of an inch down from 50 and one-quarter of an inch above 60. (Ev. Cooley, Abst., p. 817.) The height of the river as indicated at that point on the profile — the figure as stated would be 571 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 571, the bed of the river and Dam No. 1, and 95.6, the bed of the river at the proposed dam, would give the falj 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 feet up stream.. (Ev. Cooley, Abst., p. 818.) 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 21 feet to the mile as an average. (Ev. Cooley, Abst., p. 818.) These lines here across, with the sec- ond feet level and low water and high water levels indicate totals of waters in the river itself. 1 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 stand- li/4 ard low water of Tjake Mielii^aii, when filled. By full capacity, I mean 14,000 cnhic feet of water per second, for wliicli tlie Sanitary Canal is designed. It never lias run that much, unless possibly in an endeavor to get rid of some flood water out of Chicago. (Ev. Cooley, Abst., p. 818.) CON SOLTDATE I ) PKOFI LE . The consolidated profile is a summary of the official data re- specting navigaliility. Tn its preparation the following among other documents have been drawn upon : The report of 1890, Captain W. L. Marshall, U. S. A., is based upon the data of the survey of 1883, under Major AV. H. H. Ben- yaurd, U. S. A. The report of the Ernst Board of 1905 is based in- part upon the survey under the Barlow Board, 1899-1900. The hydrographic data are interpreted by the gauge equivalents of Mr. James A. Seddon, 1901-2. The records of the Sanitary District of 1905, gauge records and other hydrographic data, in official re- ports of the United States and of the Sanitary District, have been checked against, and also the continuous records of flow through the Drainage Canal, the Illinois and Michigan Canal and the Upper Des Plaines Elver, since January, 1900. The low water of 1883 is the equivalent of 800 second feet, and represents about the normal average flow of the Des Plaines Eiver prior to the opening of the Illinois and Michigan Canal in 1848. In 1848-71 the flow in dry seasons was increased from the summit level of the Illinois and Michigan Canal (8 feet above Chicago datum) by the Calumet feeder, from the Calumet Eiver at Blue Island, and by lift-wheels, from the Chicago Eiver at Bridgeport. In 1871-84 the deep cut drew directly by gravity from the Chicago Eiver, and the normal low water flow was taken at 600 second feet in water })ower leases at Lockport. The canal water, together with the natural volume, makes up the extreme low water of 1883, which has since been taken as a standard. In 1884-1900 the flow was increased by the pumping plant at Bridgeport, installed in response to the Joint Eesolution of 1881 l)y the General Assembly. The Drainage Canal was opened January 17th, 1900, and the flow tliroug'li the same is limited to 4,200 second feet, by Federal autiior- ity, in the interest of navigation in the Chicago Kiver, hut is in- creased to 5,000-6,000 second feet in the closed season. The flow of the Drainage Canal, together with that of the Illinois and Michigan Canal and the ordinary flow of the Upper Des Plaines Elver, pro- duce the stage of water shown by the blue band upon the profile, corresponding to volumes varying between 4,000 and 6,000 second- feet, and normally about 5,000 second-feet. The gauge equivalent show the stage of water produced by acces- sions of flow through the Drainage Canal. The capacity when completed is taken at 14,000 second-feet at low water of Lake Mich- igan, and the present legal requirement is 7,500 second-feet for an estimated population of 2,250,000. The later surveys show no material change in the river bed at rapids. All surveys show diminishing pool depths, especially in Lake Joliet. The prevailing stage of water in the absence of floods is repre- sented by the blue band, between volumes 4,000 and 6,000 second- feet. The actual volume since the opening of the Dminage Canal in January, 1900, has corresponded generally wdth the stage for 5,000 second-feet. The stage for greater volumes is shown on the profile. The minimum depth in the channel for three stages of water is shown for three characteristics ruling points of least depth, as fol- lows : Station on 5,000 2nd- 10,000 2nd- 15,000 2nd Profile 59 64 96.3 By a nominal amount of work-in clearing the river bed and re- moving some points or reefs at the ruling places of the TreaCs Island and Kankakee Eax)ids (see testimony of (dement, Abst., p. 393), 4.5 feet may be made the prevailing depth for a volume of 5,000 second-feet, which corresponds to the characteristic stage of water since January, 1900. AVlien sueli correction of tlie river l)ed is made, tlie depth of 6 feet and upwards can l)e carried over both rapids with a volume of 10,000 second-feet. Such volume is to he looked for in the next stage of development of the Main Channel of the Sanitary District. With such correction a volume of 15,000 second-feet will give a depth of 7 feet and upwards at the rapids, arid this is the depth for which the Hennepin Canal has been built. The rated capacity of the Main Channel of the Sanitary District is 14,000 second-feet, and this, together with the capacity of the Illinois and Michigan Canal and the natural flow of the stream, will produce the charac- teristic volume of 15,000 second-feet, through the Des Plaines Eiver herein considered. The velocities will not exceed four to five miles per hour, which is within the limit of up-stream navigation upon many of our rivers. THE COOLEY CONSOLIDATED PEOFILE. (Cooley Exhibit 3.) ADVERSE CRITICISM THEREON ABANDONED. Mr. Woermann (assistant engineer for defense; Abst., p. 1442.) have observed some difference between the profile repre- sented as that of 1883 on Cooley Exhibit 3 and the original Government map showing that profile.’’ (Ahst., p. 1442.) ^^The greatest differences 1 have observed is in connection 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 seven-tenths. At the head of Treat’s Island Mr. Cooley’s profile shows 2 feet and eight-tenths and the original and also the published copy shows one foot.” (Abst., p. 1443.) AVhile the complainant was putting in its rebuttal, the following occurred : Counsel for Complainant : A¥ith reference to the Cooley profiles, when we offered those in evidence, the defendants insisted upon the documents from which they were compiled being put in evi- dence. AVe spent a few days assembling them, putting them to- gether, and then it was suggested fhat the other side would concede the correctness of Mr. Cooley’s profile so as to make it unnecessary to put them in evidence. That they have not done ; they have only loiiiid two eriiicisins, and 1 am about to take them up and make clear whatever there is in that; but we sulmiit, 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 already — that is, Cooley Exhibit 21 to about 40, I think. (Abst., p. 1667.) Counsel for Defendant : We objected to them. Mr. Cooley testi- fied that this profile was correct. Then, subsequently, 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. Counsel for Defendant : Mr. Woerman calls my attention to the fact that he wishes to correct his testimony, and it may obviate some difficulty if he does. Mr. Woerman pointed one discrepancy 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! (Abst., p. 1668.) J. W. Woerman, recalled in behalf of defendant, further testified as follows : ^ ‘ I was familiar with the fact that Mr. Wheeler, in his 1889 sur- vey, located his lock and dam in the left-hand channel, and this pro- file, 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 the profile was on the left-hand chan- nel, and on that basis I criticised Mr. Cooley’s depth in the left- hand channel ; I find, by going further back to the 1883 profile, that that was down the right-hand channel, not the left-hand. So I don’t criticise his depth. I knew the lock and dam were located in the left-hand channel, and there is a discrepancy in respect to that in Mr. Wheeler’s profile, which misled me. (Abst., 1668.) ‘J78 L. E. (Uxdey (for the State): Aly attention is directed to the statement by Mr. Woernian that the i)rofiIe of 188.‘] went down one of the channels next to Treat’s Island; and further to Cooley Ex- hibit 25, and Cooley Exhibit 2b, l)eing, respectively, sheets 15 and 15, from the Marshall report, and certified, both of them, ])y W. L. Marshall, Captain of Engineers, February 28, 1890. These sheets represent the river and the findings as surveyed in 1885. That sur- vey was made under Major Benyaurd, by (x. Y. AVisner. A report was i)ublished in 1885, but no maps and profiles were published at that time. They were first published in the Marshall collection in 1890. These two sheets l)oth come from that collection. (Abst., ]). Ibb9.) Upon Cooley Exhibit 2b, sheet 15, which gives the island on the smaller scale, there is a dotted line which extends from one side of the map to the other along the green strip representing the Des Plaines Eiver, and when we come to Treat’s Island on this sheet the dotted line passes on the north or right-hand side of the island. (Abst., pp. lbb9-70.) Q. Now, I call your attention to the hgrire 2.8 in the first line of soundings on the left-hand channel, going down, touching the island ; the head of the island ; the first one that does not go clear across ; what does that 2.8 mean! A. 2.8 feet below the Tviater plane of 1885. That is, at the time this was taken it was not as deep as the low water plane of 1885. This is the plat of 1885; the 2.8 is the actual depth of the water at that time. Q. Then I direct your attention to the other sheet, Cooley Ex- hibit 25, sheet IS, and call your attention to the dotted line running down the left-hand channel along Treat’s Island; what is that? (Abst., p. Ib70.) A. Plan of the profile. On these two sheets respectively, for the profile of 1885, one of them carries the line of profile down the right-hand channel, and one carries the line of profile down the left-hand channel. The figures 1.7 in the right-hand channel, at the foot and near the center of the channel, are 1.7 feet depth of water ; and very nearly the exact center of the stream, just at the head of the island, but very nearly touching the island, in the right-hand 2711 eliaiiiiel, on sluH'i 12, I.O is oiio foot in (lei)lli al the liiiu* of IIk^ sin-- vey. On the same sheet, 12, just helovv tiie tenninns oi- lowcn- point ot‘ the island, and in the lel't-liand eliannel (‘ontinned, the figures 2.0 means two feet in depth, lower ])lane. OMien out of the maps, the 2.8 at the head and the 2.0' at the foot will he found on the left-liand ehannel going down; and the 1.0 at the liead and the 1.7 at the foot will be found on the right hand going down. (Ahst., ])]). 1070-1.) Depths or the Des Ph^ines. (Cooley Exhibits 25, 26, 27.) Cooley Exhibits 25, 26 and 27 are, respectively, sheets 13, 15 and 16 from the large Government document of the Eeport of the United States Engineers for 1890, viz.: Executive Document 261, Part II, which is a large book of maps. These maps, Cooley Ex- hibit 25, Cooley Exhibit 26 and Cooley Exhibit 27, exhibit the Des Plaines Eiver with the soundings of 1883 platted thereon from Joliet to the mouth of the river. The soundings are arranged very much as those upon the Macomb Profile of 1871, but are fuller and more complete. From Joliet to the mouth there is no place where a band of soundings extending across the stream exhibits a channel which is not more than one foot deep. We give herewith a copy of all the soundings of these 1883-90 profiles, and trace the line of navigation thereon, showing that a boat starting at Dam No. 1 Joliet and going down stream, taking the southeast and left-hand channel at Treat’s Island, would have more than two feet of water all the way, except at two places, oiu^ of which is at the sixth sounding below the C. E. I. & P. bridge, where it would find 1.9 feet (22.8 inches), and the other from below Station 110 to Station 111, just below the Kankakee feeder — the depth below 110 being 1.9 (22.8 inches) and at 111 being 1.5 feet (18 inches), while throughout the journey, except iii a few places, the depth would be more than three feet. This confirms, beyond dispute, the testimony of Clement, who had personally often traversed the entire distance in his boat. ‘‘About 1885 1 made a trij) from here (Joliet) to a mile below the junction of the Kankakee and Des Plaines Divers and returned on the canal the same day, making a tri}) of 829 about 32 miles from eight o’clo(‘k in the morning until ten :lHi) at night. That was ])r()l)a1)ly oitlier in June or Septem- ber; thei-e was no trouble on the water tliat trip. I made two carries, one from the canal into the river, one from the Illinois l\iver into the canal. We did not have to })ole at all 8d() that tri]). The ])oat loaded as it was drew between twelve and fifteen inches. We put in opposite the oatmeal mill, about three-quarters of a mile below Jefferson street. ‘‘At that time a boat drawing two feet of water would find the river navigable in the condition it then was.” (Depn. of A. C. Clement, Abst., p. 393.) These soundings, it will be observed once more, were taken in 1883, 6 years before the Drainage Act was passed and 17 years be- fore the Drainage water was turned in — but after the deep cut water had been running in the river for 15 years. The copy of the soundings is as follows: o X W "o o (O e? > ® I c ee -M 0) a> CM d 0} > "bo U3 Pc 0) Q H OT S’ d d o 03 -3 fl I'- t^OO ( COMi 050c ro-cf , fl c rtOco hi ^ r/j S'® ^ 5 ==--3|i 011-3 CO — coo: ^2 ® 'O LO “ 20 Ol CO “ C C: O o 2 ®*®^ ■—CO _i Cjc-t , _0 CD CO >0 rH 13 h- rH oi (m’ 13 ’ 13 rt ■ CO rH 13 0 0 CO r^ rHO 31 CO 31 31 1-H 3131X It X 31 1 OX N. rH 0 13 311310 13 05 05 31 j 31 CD rH 31 31* -H T-I3ix 130 ti- X 1 • C O 05 0 0 -h’-h* rt^OlOOlXXCD t^t^XX CO Ttl CO CO X X X XXi3i305i3if05XrH 05TtrH 00 05 X 05 l> X 31 31XX31 0 * -H-H31313113 310XOX050t^Xit ^-HM M COt^rticD05 X 05t^OXhrX rCl CO 00513-HTjUSMe4 jei'clioodt^'^MW'clicO’tiJw 1-1 1H N c4e4c<)C4eotiiocot^o>dtoe4ooea5bIcoe4iiiHc4e4 1 HM 1 H iH lc0005031t^‘3X':t'Xl^Ttl X Ttl 31 OrJlMXM C5i3rHX05XX005 0 0 13 0513X — |05rft-05>3XrH31X‘3XX 31 31 X 31 X X X t^TtXOrtOOCOXOX31rHrH-_M 313131rHCOrtl Ttl^31 X CO CD X31X05XXC-Xt^C0'il'-^ 003113 it 13 CO C5 31tHCOXX 31 rt^xx 31 r-H rH 31 31 31 31 rH OOOitXitX t^rHOl rH rHMrH •pU'BISI s ,31 31 O o hH o CO 31 31 31 31 31 31 I O CO 31 CO 13 05 05 C^ CO ^ M 31 31 31 3* ciioeociMcivHa>o WMNeoweoeoNWi Ci3i3O5h-iiO00r-Hai 31 31 M M CO 31 31 31 3l' I CO 31 -H CO 1 05 -f CO 31 CO I 31 C X — I ) 31 31 31 n > X f 31 130 XrH COO h-i CD 1-1 31 31 X 31 X X 31 CO O 31 —I X 31 Tt< 13 O CO --I 31 31 <3’ COX dco 31 X 31 r- X X co’ ■0^05 X-H 1^0 31 31 o ^-o B -013 o o M M .s.g OcO 31 rji X Tji 'Ct 3 i^ 31 X ° Ms d a fl -S . 75 ^ • : M’S 5 •S cS 3 « ; 2 M oM . S 3 g -tJ :”Qi§ :s CS cj S :a:S 'mI d d d*^ 73 01 I 2 aiojoidoi t "^05 - o 2 O- W M jO O) O) 01 0 ) 5 - cu fh (U-O 05 M 1'^ I CO p •S S s « !i 1 1 “= = 1 1 I =i I -1 I « « I - I = I; t-ooM O «■«■-■ S ^ |5S r.zzii si Ii i III llf c = .c^-3 ..-o| COM -i I C ^.0 >o" eiM J ^ o — =: :lr: -Jr CCOi-HOiirjO 2 :s: s Ii : I z a ft: li a i# ii g woo —Oft ‘It— -If ■ — I'Omoic g Mwc-i (n'nn w^' - -fti^^'oc: OtON® lit Ol 0> ft f W — ‘It ‘It ‘It o — III lit ^ ft- — — fifificlw')' oi — — ftiitt-doi o 5r=* ii i. ii n fi I if I h ii il ■s .a 1 } ■’I O MO COO ^ «=0 o 00 o — O i.OtN.OCiuO — -J CO CO W o ^ ^ w: C© uo »■- goOMO N ^co-^* -I ©ioiict^cooi^ i 5 ;:s 53 ;is:s 5 ;s 5 : ic^OOO^OWOOO- 00.00 •gcOTj^^OCOC^w^CCOiCO^O 'xr-ioofoxcoo ^Ci-tn _^(NCOoir^doM COTfCOO fss" I- Il 000 .”5 ft - g-c ^ - :■ ^ °*s :• |5 o oo-^ 5^'1.’>0'^P''-t03 DOOt-O O OCOCO (MtNt^OO O^T^HTtH iDCOOl cocooid OO COlO ceTjtOTtt«ooi»we«e ® liHiH -O d Oc0O(01OC00C000W es Plaines was also used as a feeder upon the Sum- mit between the Chicago River on one hand and the Lockport slope on the other. A short feeder connection was established from the river at Summit, by which the water ran both ways from the river into the canal — partly down hill toward Chicago and partly down hill toward Lockport. This in time was replaced by the use of the Chicago Bridgeport pumps. The defense produced several witnesses, who stated that they had often seen tlie Des Plaines Kiver so low that they could cross it dry shod in summer. Most of Ihem when pressed located this di*y-sliod strip between Dam No. 1 above and the mouth of the Du Pai?e Diver below — showing that they were speaking of the rjver bed as they found it after the entire river water had l)een turned into the canal. (4) THE COOK COUNTY DRAINAGE DITCH OF 1852 DRAINED MUD I.AKE AWAY FROM THE DES PLAINES. In 1852 the Cook County Drainage Commissioners constructed a channel extending from the West Fork and the South Branch of the Chicago Eiver further westward into the Mud Lake region, and causing it to operate as a drain of Mud Lake, and so making the waters of that lake, which had originally all run out through the Des Plaines Eivei* and which had been cut off from the Des Plaines Eiver by the construction of the canal — run out into the Chicago Eiver, not merely in periods of high water, but all the time. These ditches of the Cook County Drainage Commission were authorized by the Act of Februarv 17, 1851, entitled ‘LVn Act to drain the wet lands about Chicago*’ (specifying the Mud Lake re- gion as ‘dands lying in Townships number 38, 39 and 40 in Eanges 12, 13 and 14 East of the 3rd P. M.”) L. 1851, p. 195; and this was superseded by the Act of June 23, 1852, incorporating the Commission and adding Township 37 to the list. L. 1852, p. 240. For a description of their work, see Gov. Bross’s History of Chicago, pp. 49-50. (5) THE OGDEN-NICKERSON-WENTWORTH DITCH. In 1871 the Ogden Ditch was dug. This extends from Harlem avenue on the West Side northeasterly to 48th street on the West Side, being the City Limits, as shown by the Eand-McNally map. This ditch at the point of its origin in Harlem avenue, entered the old river bed of the Des Plaines. There was a small natural berm piece, aided by the work of beavers, between the Mud Lake area Miul the Dos DIaiiios Ivivoi*, \vlii(‘li was ()V(‘i*fl()waMl and washed out ovory spring’. Tlio Ogdon Ditoli was built from tliis very odgo oT tli(' I’ivor bod, over into tlie West Fork of the South I^raneli. ddie drainage of the Portage or Mud Lake area water from tlie Des Plaines and into tlie Chicago Elver was now com[)lete, and soon after the completion of the ditch, in the high water of the spring, the remaining bank between the Des Plaines and the ditch was washed out, and the entire Des Plaines river ran out through the ditch into the Chicago Eiver and into Lake Michigan. Ex- Mayor Wentworth refers to this, in the passage elsewhere quoted, as being the restoration of the Des Plaines Eiver to its ancient channel. (6) THE OGDEN DAM. The Ogden Dam, built by the City of Chicago in 1876-1877, partially separating the river from the ditch, prevented the Des Plaines Eiver from running out into the Chicago Eiver in high water ^ and prevented the waters of Mud Lake and the surrounding swamps from running into the Des Plaines in low u'afer, the greater portion of the year. For construction and effect of this dam see testimony of Benezette A¥illiams, of the first Drainage Board of the Sanitary District of Chicago (Abst., p. 341), testi- mony of Lyman E. Cooley (Abst., ]). 826), and re})orts of Chicago Commissioner of Public AVorks (Alist., pp. 342-3-4.) (7) THE RIVEll DIVERSION BY THE SANITARY DISTRICT OF CHICAGO IN THE YEARS 1892-1894. The Sanitary District of (liicago, in constnudiug the Drainage Canal, naturally and wisely decided that the canal ought to be built on the lowest practicable level through the old swamp region — that the Des Plaines Eiver had naturally ti’aced the line for such a canal ; that this line had been more or less broken and inter- rupted by the wanderings of the river; but that a straight line canal might be laid out from Eiverside to Lock])ort — a distance of some 15 miles in the river bed, disregarding the windings of the stream, and where those windings were fai* enough away from the straight course, to let them alone, but where the river came nearer than oiie-]ialf a mile of tlie eanal. it on^lit to ])e pieked up and moved away. And this was done; tliey i)ieked tlie river up and puslied it over to one side and straightened it out and built liigh levees and em- bankments on each side of it, and then laid the eanal out in the abandoned bed, connecting the portions of the river bed by a straight ditch, wliere the river course wound away from the straight line. This was known as the Eiver Diversion. It did in a much more scientific and complete fashion what had been done by the State Ditch and Illinois and Michigan Canal. It cut off from the Des Plaines Eiver everything in the way of a feeder that that great area of low land contributed. (8) INHABITATION^, DENUDATION, TILING, DITCHING, DEAINING AND CULTIVATION DEPLETED THE EIVEK. The inhabitation of the country, the denudation of its groves and woods, the tillage of its soil, the ditching, tiling and draining of the farms, the reclamation of the swamps, and the rapid devel- opment into city subdivisions of the land which prior to 1848 had been submerged for one-half of the year— all this had a striking effect in depleting the water supply of the river. The large triple areas of swamp land — Portake Lake with its two arms, and the Saganaskee swamp a few miles further south- west — acted as natural reservoirs. They received the rainfall of hundreds of square miles, and the drainage by the little streams, shown on the Orr Exhibits, for hundreds of square miles more, and impounded them in these lakes, which slowly fed outwardly into the Des Plaines Eiver, as the period of high water subsided in the latter part of June. These natural reservoirs kept the level of the Des Plaines at a medium stage throughout the summer months. In dry years the swamps themselves would gradually give out their supplies until large portions of their beds became bare and dry in the late summer and autumn. The forests acted as natural sponges and retainers of the rain- fall, and increased the precipitation of rain itself. The water wliicli would he retained and fed out slowly for weeks from these retaining forests and impounding reservoirs slipped away in floods in a very few days after the forest had been cut awaj^ and the swamps reclaimed and converted into filled ground and dry land. The amount of rainfall was diminished by the cutting away of the forests, and the period occupied by it in passing from the ground into the streams, from streams into Portage Lake and from Portage Lake and Saganaskee Swamp into the Les Plaines Eiver was reduced from a period of months to a period of days. The effect of this was to shorten the duration of medium stages of low water and to increase the low water period. In periods of extreme drought the swamps themselves would, in a state of nature, eventually run out and the supply of the stream would suddenly in the course of a week drop to one-half or even one-fifth of its normal volume. An important part of the inhabitation and change resulting from the occupation by man of this territory is the erection of railway embankments and the throwing up of macadam roads and other similar roads. On ‘‘Hillebrand Exhibit 1” and the profile ^strip No. 2, there will be found between Bridgeport on the east and Lockport on the west, the elevations of 18 elevated streets and railway tracks, which have been thrown up anywhere from 5 to 20 feet above the natural level of the ground. The old Archer Eoad, built by the Canal Commissioners in 1846, was similarly elevated. Every one of these formed a dam, obstructing the flow of drain- age into the Des Plaines, and turned it back toward the Chicago Eiver. The detailed testimony of Mr. Cooley shows that the depths of the river may be divided at the Eiverside gauge into four stages, viz. : A. Water having an elevation of 18 feet, which is 6 or 7 feet deep in the 16 years from 1887 to 1904, inclusive. The water stood at this depth for 3.62 days in each year, on the average. B. Water standing at an elevation of 13.8 feet, or a depth of 24 feet. It occupied this stage on an average 44 days each year. Ill each of these stages tliere would have been a passage from the Des Plaines River into the Chicago River, or the Chicago River into the Des Plaines River, for a boat drawing 2 ft. of water, with- out any portage. Throughout this period of between 6 and 7 weeks the water would have run in a strong wide stream from the Des Plaines River into the Chicago River, through the Ogden Ditch, if the Ogden Dam had not obstructed its course. C. The period when the water stood at an elevation of 13 feet on the gauge, or 1.7 feet deep, which lasted on an average for 65.9 days per annum throughout the 16 years. This period would cor- respond closely to what was called by Graham and Phillips ^Ghe Period of the Two-Mile Portage,” and the three periods together would amount to 114 days, or nearly four months out of each twelve months in these 16 years. As to these three periods, Mr. Cooley testified ^ ‘ that the effect of the obstructions and depletions of the river were such that a res- toration of natural conditions would have prolonged these three periods from 40 to 50 per cent” — ^that is, the water would have been between 5 and 6 days instead of 3 2-3 days per annum; it would have stood 24 feet deep 66.6 days ; and it would have stood 1.7 feet deep 98.8 days— the whole amounting to 170.83 days, in- stead of 113.92 days. D. Mr. Cooley’s figures show a fourth stage, when the water at the Riverside gauge showed an elevation of 12.4 feet, or 1.1 feet deep in the river for 102 days per annum in each of the 16 years on an average. The Des Plaines River should not be judged merely by the ex- treme pieces of evidence : one, the minimum possible registration of fiow, taken by the Canal Engineers in 1830; and the other the loose testimony of settlers that they have crossed it dry shod be- low the dam. 1. As to the first— that it had a minimum which was inade- quate to supply the canal — we have seen that the canal builders demanded a supply of Avater sufficient to fill the canal 60 feet wide and 6 feet deep, in spite of all the losses by lockage, leakage, filter- ation and artificial CAmporation; and they demanded this all the year round. The total that they put as their maximum requisite was r)()(),()0() IVoi of water per hour (History of the Cjanal, Canal Report, RKK), p. 174), and tliey fonrid tliat the i)es Plaines ill ordinary seasons would provide 117,000 cnhie feet per hour, or more than one-fonrtli of the amount. And this amount, in its natural hed — without the losses hy leak- age and Alteration into the ground from the new artificial hed — while not sufficient to make a stream 60 feet wide and 6 feet deep, constituted an ample supply of water for river navigation as that art was practiced for one hundred years prior to the building of the canal. 2. As to the second proposition — that men had walked across the river dry-shod below the dam, it simply signifies that the dam was a water-tight dam, and that there was not enough water in the river to make a stream 60 feet wide and 6 feet deep, to go out through the side gate, and still leave water enough to run over a dam 11 feet high. We append a summary of Mr. Cooley’s testimony on the sub- ject of these depletions of the river. There have been two great restorations of water to the river, which do more than restore and now greatly increase its flow. They are the Deep Cut of 1871 and the Sanitary District Flood, which was turned in January 17, 1900. Since this latter has been turned in, we have seen that the Des Plaines Diver forms a stream from 4 to 6 feet deep all the year round in the shallowest points. SUMMARIES OF TESTIMONY OF ENGINEER COOLEY RESPECTING DEPLETIONS OF THE DES PLAINES RIVER RIVERSIDE GAUGE AND THE CONSTRUC- TION OF THE I. & M. AND SANITARY DISTRICT CHANNELS. 654 The first was the construction of the Illinois and Michigan Canal, opened in 1848, from the junction of the two forks of the south branch at Bridgeport, southwesterly across the southern arm of Portage Swamp to Summit, thence along the left side of the valley to Joliet. (Abst., p. 824.) 658 In addition to the canal, the State of Illinois constructed a big drain called the State Ditch, ])y way of Brighton to the South 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 upon the amount of water flowing into and down the Des Plaines Diver was that it was dimin- isliecl by whatever water came from the territory which has been thus intercei)te(i by the Illinois and Mjchiffan Canal. (Abst., }). 8:25.) ()51 The second interference was the cutting of the Chicago di- vide in the vicinity of Kedzie avenue in 1852 t)y the CooJc County Drainage Commissioners. They cut a channel from Mud l^ake, sometimes called Portage Lake, La Petit Lac, across the divide, which enlarged until it became the present west fork and extended into the Mud Lake region. The third change was tlie ditching of the Portage Swamp region by Nickerson, Ogden and Wentworth ditch to the old Portage slough at the range line between Ranges 12 and 1c East, on or about 1871. (Abst., p. 824.) Eourth, 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 level was at the level of the Chicago River and Lake Michigan. (Abst., p. 824.) 655 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 AVent worth dam. (Abst., p. 824.) Sixth, the diversion of the waters in the Des Plaines both before and 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. (Abst., p. 824.) Eighth, the construction of the Sanitary Canal, opened in elanuary, 1900, and that general occupation, inhabitation, till- age and reclamation of the soil would be considered such an interference, and that that would make nine. (Abst., p. 824.) 656 The effect of the Illinois and Michigan Canal, which was cut through from Summit to Bridgeport, across the arm of Portake Lake, was to intercept so much of the watershed as 657 lay south of the I. & M. Canal and was tributary to Portage Lake and thence to the Des Plaines River, and also so much of the reservoir of the Portage Swamp as lay south of the loca- tion of that canal and tended to equalize the flow in the Des Plaines River. The waters from the Upper Des Plaines and from the water- shed tributary to the 12-mile level and Portage Swamp in times of high water flooded these lakes and marshes and streams to a considerable depth, which had a very large ame- liorating effect in mitigating floods and in prolonging the stage of water. The I. & M. Canal diminished the proper watershed of the Des Plaines River and to that extent absolutely diminished a volume tributary to it. (Abst., pp. 824-5.) :iii In relVroiU'c lo this, iiiulei* (!()iisi(leral)le pressiu-e, All-. VVoer- iiiaiin, llie exiiert Tor the dereiulaiit, testified as follows: ‘‘It hasn’t been my ohsei-vatioii tJiat there is always a slml- Jow place immediately below a dam in ordinary states of water. J know it is not so. 1 would say that it depends oji the local conditions entirely. The Adams’ Darn was a dam which operated a mill. AVhen a dam operates a mill, usually there is a sluice or a flume leading water away from the pool through a wheel, and then by a tail race back into the streaiii below the dam. There was a mill there at Adams’ Dam, and it operated wheels in the mill, and the water was taken away from the river and returned to the river below the dam. And I have known of cases where those tail races would be two or three miles long. In that stretch from the dam down to the place where the tail race returned the water to the river, there would be less water in the river than there was above the dam, under those conditions, and there would be a shallow place below the dam. And if the diverting channel were eight or ten miles long, there would be a shallow place eight or ten miles long. Then the shallows caused by such a dam would extend just as long as the diversion channel extended. And that has been true of the bulk of the dams I have seen.” (Abst., p. 1503.) That the entire water of the river was turned into the canal, necessarily leaving a place below for people to cross ^^dry shod,” is corroborated by the following statement in Canal Trustees v. Haven, 5 Gilni., at p. 554: “On the 20th of A])ril, 1848, the defendants (Canal Trus- tees) diverted, or caused to be diverted into the Canal for the use of said Canal from the natural channel of the River, the ivhole or principal part of the ivaters 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 half a mile above the dam of said plaintiffs, so that the plain- tiffs are wholly deprived of the use of the water at their said mills, and have not since been able to run their machinery.” FIGURES OF SPEECH. VOUIJME OF STREAM MINIMUM. The defense have quoted a statement from somebody that there arc times when the discharge of the Dies Plaines would flow tln*ough a 6-inch pipe. Let us see how much water this would be. (1) A stream flowing through a square 6-inch pipe at the rate oi' 7! miles an lioiir (wliieli is tlie current of the Des Plaines at tlie narrowest part), (see Doc. 2(u)) would discliarge 1G5 cubic feet ])er minute. ('^Idiat is, such a stream flows fibO feet per minute and dis(*harges b61)/4 feet, i. e., 1()5 cubic feet per minute.) (2) A stream oO feet wide and 1 foot deej) in the center, witli a l)ed slanting uniformly from tlie margins to the center, and flow- ing ()()0 feet per hour (one-eiglitli of a mile), which is the current of the Des Plaines in its widest part, viz.: Lake Joliet, would dis- charge 1()5 cubic feet per minute. That is, the swift 6-inch pipe stream would equal the slow moving stream 30 feet wide and a foot deep at the center. This simply shows that the stream tilling ac- cording to the phrase ''a 6-inch pipe” is not so insignificant as it sounds. One hundred and sixty-tive cubic feet per minute amounts to 9,900 feet per hour, while the Des Plaines at low water as gauged in 1830 showed 72,000 cubic feet per hour (Canal Keport 135), which corresponds to a stream 144 feet wide, 2 feet deep, flowing 250 feet per minute, or 2.8 miles per hour; while ^Hhe minimum discharge of the Des Plaines is only 60,000 cubic feet per hourd^ (Bucklin’s Survey, reported January 1, 1833; Canal Comrs’ Ke- port of 1900, pp. 88-96, and at p. 92 near top and pp. 88, 89.) This minimum discharge is quoted on p. 204 by Mr. Gooding in 1842 — while he gives his own measurement at Cache Island as 117,000 feet per hour, or nearly double this amount. And Engineer Buck- lin, January 1, 1833, reported as to the canal that “an additional supply of 102,400 cubic feet of water per hour will be required for its consumption. The River Des Plaines in most seasons would alone make up the deficiency. ’ ’ This discharge of 60,000 cubic feet per hour corresponds closely with the low water of 1883, which gives the Des Plaines a depth of 15 inches at the shallowest point. (See Cooley consolidated profile. (Abst., p. 817.) The Post and Paul gauge showing 72,000 cubic feet per hour was at “Laughton’s Ford” (Id., p. 135), and that was “north of the Portage Lake, a distance of 10 miles from Chicago.” (Id., p. 92.) At Riverside, a point on the stream above all additions, in the year 1900, the average flow was 19,072 cubic feet per minute. Every year since then the flow has much exceeded this amount. •} • > The aiiniuil averag’c rale ol* How per laiinite has heeti as follows: 1')0() 19,072 1901 20,974 1902 30,235 1903 35,763 1904 22,372 1905 22,265 1906 24,598 1907 45,582 The average flow per minute at Riverside for these eight years lias been 27,600 cubic feet per minute. Call this 20,000 for easy figuring and it yields 1,200,000 cubic feet per hour. This is ten times the amount found by the early tests taken in extreme low water. This is by actual measurement by the Sanitary District. This is not only above the contributions by the Drainage Canal and Deep Cut, but it is at a point above where the natural contribu- tions of the Mud Lake — the Sanganaske Swamp, Hickory Creek, Jackson Creek and the Du Page River came in, all of which swelled the natural river above the location of the proposed dam. That is above the contributions by the Portage Lake, the Au Sauganashke Swamp, the Hickory Creek, Riley’s Creek and the Du Page River, all of which put into it above the locus in quo and increase its natural discharge at the place in dispute. To a stream having minimum discharge of 60,000 cubic feet per hour it is obvious that the “6-inch pipe” admits of only 9,900 feet per hour, or only one-sixth of this amount, and the phrase can be applied only in the most figurative sense and as roughly indicating that in the most extreme low water periods when for months there has been no rainfall, the water flowing in the stream conies from natural reservoirs drawn to their lowest levels. But we submit that the river is to be judged by its condition during most seasons, rather than by its minimum, that is as having 102,400 to 117,000 cubic feet per hour instead of 600,000. But accepting now 800,000 cubic feet per minute as the maximum, and the 6-inch pipe stream as the minimum, and the average nt 400,000 cubic feet per minute, and taking that average (which is just half the maximum water) for only one-half of one month — and just half that average, or one-quarter of the maximum for another half month, and one- eighth of that maximum for another month, and acce])ting a fall to the iiiiiiiiinijn of ()(),000 eii})ie feet per minute (.075 of that max- imum tor the next two months, making four raontlis in all), the (‘onditions give us the following: (o) For high water half month (400,000- cubic ft. per minute) corresponds with a stream 400 feet wide, 4 feet deep, flowing 3 miles an hour. (4) For the other half -month (200,000 cubic feet per minute) corresponds with a stream 300 feet wide, 3 feet deep, going 24 miles an hour. (5) For the second month (100,000 cubic feet per minute) cor- responds with a stream 300 feet wide, 2 feet deep, flowing nearly 2 miles an hour. (6) For the third and fourth months (60,000 cubic feet per minute) corresponds with a stream or to a stream 300 feet wide, 15 inches deep, flowing 160 feet per minute, or nearly 2 miles per hour. In each of these cases the depth is figures for the entire given width. The Des Plaines is normally 600 feet wide; and shallows oft from the middle towards the shore; the increased width and shallows along the shore offsetting each other. In these figures the ''minimum discharge of only 60,000 cubic feet per hour’’ is treated not as the minimum but as part the four months of best depth and best navigation, and the other eight months are treated as if the water discharged were zero. This gives four months of water 15 inches deep and over. The steamers "Phil Schehel/’ the "Black Haivk,” the "Enterprise/^ the "Silas Wright^’ and many other steamboats carried on useful commerce on water 15 inches deep. The motor boat of today runs light on 9 inches of water and carries 40 tons on 15 inches of water, and more than 200,000 of them are in use today. (See Test, of Sweeney. (Ahst., pp. 321-3.) But for the defendant it is urged: ‘ ^ The bowlders are in the way, and we have a right to have those bowlders stay there. We can bring replevin for those bowlders. No one dare touch {hose bowlders without our con- sent.” Eeply: That contention begs the tvhole question. From a nav- 315 hgahlc stream any sucJi obstrucMon may be removed and tlie ripa- rian owner takes subject to tlie pnl)lic use and public ri^ht to im- prove that use. Bowlders are not permanent features of the stream l)ed. Tliey were brought down by floating ice and are rolled along changed in position and broken up by the action of the water from year to year. See reports of Lee, Hains, Warren as to bowlders in the Missis- sippi. The Snake River witness for the defense told of the bowlders being ‘‘mashed up into cobble stones’’ by the action of the water there. The witness Mills stated that the bowlders were scraped up into a dam at the head of Treat’s Island — and being rolled into ‘^stepping stones” in one place. The bowlders are no more fix- tures in the landscape than floating trees brought down by high water. They lodge for a time, are rolled over and on, and ulti- mately disappear. 5. THE SLOPES OF THE DES PLAINES KIVEE. The Cooley profile. Exhibit 3, is itself a complete exhibit of these slopes. No criticism has been made of any kind as to the ac- curacy of its delineation of the bottom line or bed of the river. The slopes of the river, therefore, are such as are shown upon this exhibit. The place of greatest fall in the bottom line of the river is that just at the foot of Treat’s Island. This slope at the foot of Treat’s Island is the side of the bowl or glacial pool in the bottom going off into one of the gouged out gorges produced by glacial action in the formation of the stream, similar to, but not smaller than, Joliet Lake and Du Page Lake. The Cooley profile is divided by vertical lines one-half inch apart; and by the horizontal scale on the profile (2,000 feet to the inch) this half inch in profile lengih represents 1,000 feet in river length. Let us take on the profile the entire fall — from the vertical line, labeled ^‘Foot of Treat’s Island,” to the 4th line below that; so that we have a fall occurring in 4,000 feet, or nearly a mile of river length. This slope from the foot of Treat’s Tsland to the point where tlie bottom of .1883 ceases to fall and begins to rise, is between 4,000 and 5,000 feet long, and falls in that distance about 14 feet. The profile shows a fall of 1 7-16 inches (a little less than 14 inches of profile height, and the vertical scale is 10 feet to the inch — l-J inches of height represents 15 feet.) The fall is shown to be less than this, and is about 14 feet. The fifth vertical line below that one labeled ^‘Treat’s Island” is a little below the 13-mile point, noted in the margin below — just as the foot of Treat’s Island is a little below the 12-mile point. In the remaining 1,000 feet, to finish out the mile, the bottom rises ten-sixteenths of a vertical profile inch, leaving a net fall to the mile of thirteen-sixteenths of a vertical profile inch, or just about 8^ feet. The bottom continues to rise for three-quarters of a mile fur- ther down stream, so that in the If miles below Treat’s Island the actual fall is 4 feet. This is at the rate of feet per mile. This line, 5,000 feet below the foot of Treat’s Island, shows two bottom lines — one, the continuous bottom line of 1883, the other the dotted bottom line of 1899. This shows that there has been a filling up of silt between 1883 and 1899' 2^ feet deep. Measured from the bottom line of 1883, the bottom falls in the mile thirteen-sixteenths of an inch, which represents 8^ feet ; meas- ured from the bottom in 1899, where it is silted up, the fall in the mile is f of an inch, which represents 6f feet in the mile. This shows how misleading a statement would be as to the fall of the river, which took only the steepest bit of the steepest slope — which continues for only one-seventh of a mile; then translate that into slope per mile. AVe have seen upon the slopes of the Snake Elver that steam- boats successfully run the Monumental Eapids, which fall at the rate of 29 feet to the mile for a distance of 300 feet, and that the water in that place is only 30 inches deep. The water in the Des Plaines, at the foot of Treat’s Island, measured on the line of 4,000 second-feet, which is the minimum flow under existing conditions, is 4f feet deep. On the low water line of 1883 in this slope it was .‘U") iiu‘lies deep, or the same depth os at Moiiuineiital Rapids on the Snake River. This is tlie place in tlie Des Plaines River whicli is spoken of in the U. S. Engineers’ Report of J90'5 as having a velocity of 2.1 miles per hour. (Report of 1905, p. 41.) It will be seen from this that the mere fact that the bottom has an acute slope for 700 feet at this point is not the only thing to be considered. The sharp rise in the bottom one-half mile lower down, the great depth of the water at the foot of this slope, the low water of 1883 maintaining a depth of 15 feet, and the widen- ing of the stream at this point, incidental to its being just below the Island — all reduce the velocity so that at this point of its greatest slope the velocity of the current is not as great as at other points of much less slope. While the stream had a velocity of only 2.1 miles per hour at this point, it had a velocity of 7 miles at the Jefferson Street Bridge, just below Dam No. 1, where the slope was not so great, but where the river now runs, and in 1905 ran over a smooth in- clined plane, which is part of the alterations incident to the dam and to the improvement of the Sanitary Engineers. (See the right-hand end of Cooley E’xhibit 3, where the smooth inclined plane at the bottom is delineated with the label ^‘Improved by the Sani- tary District.”) This is the point of the greatest velocity, and this great velocity is produced by the artificial smooth inclined plane of the bottom, and the artificially smoothed banks, which does not represent the natural flow of this stream. At Jefferson Street Bridge, below Dam No. 1, the water is running down a smooth easy slope three-quarters of a mile long into the deep glacial bowl of Lake Joliet. At the foot of Treat’s Island it runs even more immediately into a deep glacial bowl. From Dam No. 1 to the mouth of the Des Plaines is over 15 2-3 miles. In this distance the river bottom falls from level 57 below Chicago datum to level 96, or 39 feet in the 15 2-3 miles. It is repeatedly referred to in round numbers as 40 feet in sixteen miles — a fall of 21 feet to the mile. It is true that this fall is mainly developed in three places, viz., the stretch nearly 3 miles long just below Dam No. 1, the stretch ;!1H 2i miles long jnst at Treat’s Island, and tlie stretch i mile long just al)ove the darn. From Dam No. 1 to a point 2,000 feet below Brandon’s Bridge is approximately 16,000 feet, or 3 miles. In these 3 miles the river bottom falls from level 57 to level 78, or 21 feet in 3 miles. (In th^ first mile of this, viz., from Dam No. 1 to the line of the removed Adam’s Dam, it falls from level 57 to level 66|- below Chicago datum, or 9|- feet.) From the head of Treat’s Island to Smith’s Bridge is 13,500 feet, or a little over 2.5 miles (which would be 13,200 feet). In this distance the bed of the river falls, according to the profile, from level 80 to level 90 — a fall of 10 feet. In the last one-half mile above the mouth of the river the river bed falls from level 92.5 to level 96, or 3.5 feet. This makes a total fall in the three extreme slopes, occupying in all 6 miles, of 37.5 feet, leaving a fall for the remaining 9 2-3 miles of 1.5 feet. All of these are visually portrayed upon the profile, Cooley Ex- hibit 3, and are capable of easy verification, by applying a foot rale to the profile. The acutest of these falls thus measured is 9f feet in the first mile just below Dam No. 1. It is only by taking a very small section of the river, down to about 500 feet long, that a more acute slope in the bottom can be found, on the edge of the glacial bowl, and that slope when found is amply offset by a corresponding rise on the opposite side of the glacial bowl in the bottom a short distance be- low; and when the low water line, where the boat would go, is com- pared with the bottom, the fall is seen to be much less. The results from the examination of this slope at Treat’s Island, as compared with the artificial slope just at the foot of Dam No. 1, are sufficient to demonstrate the accuracy of the report by the Government. They say on p. 41 that the velocities are as follows : 319 ‘‘mkan vki.ocity ok cuhrknt in upper ir;r.iN()is and i.ovver des PI.AINES RIVER DURING EXTREME HIGH WATER. Mean Velocity. Location — Ft. per sec. Miles per sec. Kankakee cut-off . 3.65 2.5 One-fourth anile below foot of Treat’s Island 3.15 2.1 One and three-fourths miles below Bran- . don Bridge 3.33 2.3 Jefferson Street Bridge, Joliet 10.91 7.4 ‘‘Tliis table is designed to show the greatest velocities which occur from Utica to Joliet. A study of the table, in conjunc- tion with the profile, indicates that from Utica to the foot of Atoore’s Island, a distance of 12.3 miles, the maximum veloc- ity varies from 2.8 to 3.6 miles per hour. From the foot of Aloore’s Island to the middle of BelPs Island, a distance of 2.3 miles, the velocity increases to 4.3 miles per hour. From this point up stream the velocity continues to increase as we approach the Marseilles dam, which is 247 miles from Graf- ton. One mile below the dam the velocity was 5 miles per hour. Just below the dam it has been impossible to compute the velocity, as there is not sufficient data on hand, but it was probably not less than 7 miles per hour. From the Alarseilles dam to Seneca, a distance of 4.4 miles, the velocity varies from 3.5 to 4.1 miles, the greater value being found at only one sec- tion. From 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 to this, viz., at the mouth of the I)es Plaines Eiver and at Treat’s Island, where it is impossilJe to compute the velocity, as there are not sufficient data on hand. It would probably not exceed 4 miles per hour, at either place, for a distance of about one- half mile. Proceeding up-stream from Lake Joliet the velocity increases up to I)am No. 1 at Joliet. At the Jefferson Street Bridge the computed velocity is 7.4 miles per hour for the flood of 1904. ^^From the preceding investigation it has been dJhcided 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 prohibitive, 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.” :V2() Tliere is room for iiiucli misap])reliension in the treatment of the subject of slopes per mile. Tf we take tlie case of a coblhe stone lying in the river with a diameter (i inches, and so filled up by sand behind it that the river bed for a yard or so back of it is level, we will have a fall in the bottom of the river in front of the stone, or the diameter of the cobble stone, 6 inches — in the length of that diameter, 6 inches. At this particular point, the bottom would fall 6 inches downward in 6 inches forward of river bed, or at the rate of one mile down- ward for one mile forward. This would mean a fall at the rate of 5,280 feet per mile. Such a basis of computation is absurd, and this caution should be borne in mind in considering the phrases of the witnesses, who spoke of a fall at the great rate per mile for a short distance, with- out specifying lion) short. Thus Mr. Woerman testified for the defense with reference to slopes as follows : ‘^The fall of the river from Lockport to Joliet is about 38 feet in four 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 feet in one mile. Then a pool about one mile long where there is 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 Du Page, where there is a fall of 2 feet in about 31 miles. Then the rapids at the mouth, where there is a fall of about 31 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 Island the bottom consists of — it is a hard bottom, covered with numerous boulders of all sizes — also near the mouth the bottom is covered with bowlders, and the depth of the water is quite variable. In going down over the river in a skitf in 1889 we got aground at a number of places and two of us had to get out of the skiff and drag the skiff 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 Boad, in the vicinity of Treat’s Island, is where we struck ilu)S(' bowlders. At ilie inoiilh we almost ('apsized, in those ra[)ids, tlie waves were so liigli. The i-iver is tor-tuous and tlui (diannel (piite nari’ow in ])laees. The nai-rowcist place; was near floilet, where, on one side of an island wliiedi was siibse;- (|uently excavated by tlie Sanitary District tliere was bO feet on one side and 40 on the other. Other places tliere was widths of 80, 90 and 100 feet. “I liave completed my general description of that part of the river. I have spoken of certain slopes being at so much ]:>er mile. I have not included in those statements the maximum slopes on that river. There is at Treat’s Island, for example, nine feet and a half fall in the length of the island, hut you take certain portions, the slope is very much steeper tlian that. ‘‘Well, in the main channel near the head there is a slojie 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 iind still steeper places. “Well, at Smith’s Bridge, where I gave a fall of 2.7 feet in a mile, if you take the steepest ])ortion i^rohably it would he 10 or 12 feet to the mile for a short distance near the bridge; perhaps for 400 or 500 feet. The same way at the mouth, where I gave the fall as about 3 feet and a half mile. The fall at one point was steeper than anything T 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 of the river; approximately 20 feet to the mile — that would he for perhaps 800 or 400 feet.” (Ahst., pp. 1444-5-0.) It will he observed that Mr. AVoerman in his slopes states that the fall of the river from Lock])ort to Joliet is about 88 feet in 41 miles. This is all north of Dam No. 1, and this fall has all been taken out by a lock erected by the Sanitary District in the con- trolling works at Lockport. A boat starting from Lake Michigan comes down to Dam No. 1 through that Sanitary Lock. Again it will be observed that Mr. Woerman says of the river at Treat’s Island : “AVell, 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 in a still shorter distance you can find still steeper places.” (Abst., ]). 1445.) It will 1)0 r(MHoin})ero(l that Air. (/V)()ley expressly testified, and his Profile Pxhihit 2 exi)ressly sliows on the faee that the J^rofile is eai*ried down the left-hand eliaimel. There lias lieen a deteriniiied effort by Witness Woerman to introduce figures about tlie right-liand channel and impose the difficulties of that channel as insuperal)le barriers to navigation; but when it is remembered that tlie left-liand cliannel is the one that he himself quotes as tlie ‘'main channel” and this main chan- nel is the one on which the Cooley profile is laid out — it is plain that the introduction of these figures concerning the right-hand channel simply has a tendency to mislead the Court. This witness, J. Woerman, testified on the stand that he wrote the words which we have quoted above from pages 41 and 42 of the Report of 1905. He was an engineer in the employ of that Board of Engineers, and his name is signed to this report on page 68. He himself in laying out the Waterway Survey of 1904 selected the east or left-hand side as the proper side. On page 67 of that report, where he gave the details of the canal which he suggested to be made around the slope in Joliet, he said the following: Canal at Joliet to Foot of Treat^s Island. — This pool is created by Dam No. 2, which is located at the foot of Treat’s Island, at station 1473.9. This level extends from Lock No. 3, at station 1507, to Lock No. 4, at station 1474, a distance of 6.2 miles. The proposed low-water surface for this section is at elevation 515 feet Memphis datum. Practically all of this level is located in Lake Joliet, which is a portion of the Des Plaines River, having a low-water width of 600 to 1,500 feet. It is a deep gorge cut in the rock, which has become largely filled with mud and sand, but the depth of water along the proposed route is still 7 to 16 feet below the low water of i 1901. The banks rise with a steep slope to a height of 40 to 80 feet. The adopted route passes along the east side of Treat^s Island, as that channel is wider than the other. This channel is 150 to 200 feet wide and has a fall at low water of 9 feet in about 6,000 feet. This place is referred to in the sec- tion devoted to velocity of current. The bed of the stream along these rapids consists of large bowlders. Practically no rock excavation is necessary in this level, and the amount of earth excavation is comparatively small. The amount of land damaged by overflow is also very small.” Woornuui, ilio assistant to the (Government I>oar(l ot* Engineers, who were planning the navigable waterway in the Des Plaines lliver, said that the velocities wliich obtained during the extreme high water, are prohibitive only below the Marseilles and Joliet Dams. Woerman, the assistant attorney for defense, finds the slopes which he considers unnavigable throughout the river. He intro- duces and testifies to slopes between Lockport and Joliet, which are taken out by the Sanitary Lock, and to other slopes, which he considers prohibitive, in the right-hand channel of Treat’s Island, which is not used. We appeal from Woerman, the attorney for the Defense, to \Yoerman, the assistant engineer for the Government. Woerman, the engineer for the Government, recommended the east or left- hand bank. Upon the Fox River, as we have seen, there was a fall of 170 feet in 28 miles. This was divided into 8 principal rapids, one of which, the Grand Chute, gave a fall of 50 feet in 41 miles; and an- other, the Little Chute, gave a fall of 38 feet in 24 miles ; another. Cedar Rapids, gave a fall of 10 feet in f mile; and the Grand Chute gave a fall of 38 feet in 4 miles. This is the river which the Supreme Court of the United States held a navigable stream in its natural condition in the Montello case. (Mpntello, 20 Wallace, 430.) Now we have seen that in the Snake River slopes are success- fully navigated at the Texas Rapids of 15 feet in the mile, as testi- fied by Gray, or 14.4 feet in (),(>00 feet, as given by the Government Report of 1891. This, Gray said, is about 15 feet in about a mile. In its native condition it took all day in going through the Texas Rapid, going over rocks that are 5 feet under water. At the Cop- per Creek Falls, the witness stated there was a perpendicular fall of about 18 feet, and about 200 feet of fall in 4 miles; and that there were quite a number of falls from 10 to 15 feet all the way down the 250 miles. At the Squally Hook Rapids he testified there was a fall of from 8 to 10 feet in three-quarters of a mile. At the Umatilla Rapids he testified that there was a fall of 17 feet in 24 miles, and that llio rivei- was very (‘I'ooked, and had about 5 feet of water in it, with a (‘iiiTent of ll2 miles an liour. The (jovernment Report of 1875 states tliat tliere tlie de})tli of water obtained after l)lastini>- out the ro(*ks was (> feet in low water. At the 5-mile rapid there was a fall of 8 feet, lie testified, in a lengtii of 500 feet. The Government Report of 1891 gives it as 10. 5() feet ])er mile. At the Fish Flook Rapids the Government Report gives the fall of 10 feet ]jer mile, and the witness stated that the Fish Hook was a reef in the middle of the river, v/ith a shoal bar, probably 2 feet of water in the channel off to the left; that the rapid was about miles, and one engineer made the fall 17 feet, another 14 feet, and another 23 feet at the Pine Tree Rapids, which the Government Re- port gives as a total fall of 11.5 feet in 5,000 feet, or 12.14 feet per mile. The witness stated that this was the wildest place on the river, that there was about ll feet fall and that it took two days to get through. The Government Report of 1875 states that this is the worst rapid at low water of the river; that there was scarcely width enough for a boat to pass through. At the Monumental Rapids, the river falls 1.7 feet in 300 feet, and the witness stated that the depth at low water was 30 inches, and that the passage was very difficult and dangerous. The summaries which we give elsewhere of the slopes, falls and velocities in the Ohio, Mississippi, the Missouri, the Cumberland and the Tennessee also present instances of slopes more difficult than any of these in the Des Plaines. It is perfectly obvious that there is nothing in the suggestion that the slopes of the Des Plaines make it non-navigable, except the wish of the defendant to have it so. (i. THE SINUOSITIES OF THE DES PLAINES. Much has been said by Mr. AYoermann about the sinuosities of the Des Plaines River. These are shown in McCullough Exhibit 1, for the 16 miles of river involved here. An examination of the large map, Cooley Exhibit 29, will show the entire strip of the river involved here, and about five times as much more of the Illinois River. All oxaiuiiiatioii of this map will show that mueli greater sinuosl- ties are (leliiieatcd in the Illinois River, lioth above and lielow La- Salle, than are delineated in tlie Des Plaines River. A glance at any standard map of Illinois, for instance the map put ont by the United States Government, showing post routes in Illinois, will enable an easy comparison to be made of the Illinois River thronglioiit its entire course, and the Mississippi, also, with- out the entire course adjacent to Illinois on the one hand, with the Des Plaines River between Joliet and its mouth on the other hand, and such an examination will immediately show that much greater sinuosities are to be found in the Illinois and Mississippi than are to be found in the Des Plaines. Again, the examination of the government survey inajD of the Fox and Wisconsin Rivers (Abst., p. 1631) will show that the upper Fox exhibits far greater sinuosities throughout its entire course than any to be found in the Des Plaines. The detailed testimony of Mr. Woermann on the subject was as follows : ^‘The worst places are at the vicinity of Brandon’s Road and at Treat’s Island, very abrupt turns. I measured the width on the Government map in a niimber of places and put the width in figures in this ‘Woermann 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. ‘‘The points where I said the turns were very abrupt were between these various islands, in the vicinity of Brandon’s Road, and then several points along Treat’s Island, particu- larly at the head, right immediately below the present bridge, where there is a projecting point on the left-hand bank extend- ing nearly half way across the river, and then against the mouth. “I have examined ‘McCulloagh Exhi])it I’ and ‘McCullough Exhibit 2’ that are introduced in evidence in this case. Those maps exhibit the sinuosities of the Des Plaines River, to some extent, not fully, on account of the fact that the scale is too small to show abrupt turns. “Well, a map on that scale cannot show all the small projec- tions. For instance, a sharp projection just below the bridge at Treat’s Island and some irregularities, small, but still pro- jecting a considerable distance into the river, are shown. Fur- tlierinore, a large number of islands which occur in the river where the sharpest bends are, are not shown at all/’ Q. ‘‘State whether or not in your opinion the Des Plaines Jiiver from Lockport to the mouth is a navigable stream, capa- ble of carrying useful commerce!” “For several reasons; the depth is too shallow; the slopes are too great; and on account of its rocky bed and great num- ber of boulders and other obstructions, its narrowness and crookedness.” (Abst., pp. 1452-1456.) A reference to House Document No. 263 reporting the survey by the Ernst Board of Government Engineers made in 1904-1905 will show that when Mr. Woermann was emploved as «,n assistant by the government to survey this waterway as a waterway, nothing was said about sinuosities. In his map, “Woermann Exhibit 4” (Abst., p. 1934), he has drawn a projecting point sticking out in the stream on the left- hand bank, below the Treat’s Island bridge. The largest map on the largest scale of this situation is that which appears on Cooley Exhibit 25, which is sheet 13 of the Mar- shall planning of his own survey, and that of 1883 made and pub- lished by the government. Mr. Woermann complains that the other maps are all on too small a scale to show these sinuosities, so he has made a map of his own “Woermann Exhibit 4,” on a scale of four inches to the mile (or 1,320 feet to the inch) in order to show them. Cooley Exhibit 25 is on the scale of 300 feet to the inch — more than four times as large a scale — and this map shows no project- ing point, whatever, at the place where Mr. Woermann has sketched a dangerous projecting point. It will not do to say that the point was not there in 1889, but has come there since, for the change since 1889 has been to turn in a vast amount of water from the Sanitary District Channel and overflow and obliterate whatever projecting points there may once have been. This projecting point exists only on the "Woermann map, and in the IVoermann oral testimony. Again it will be observed that Mr. Woermann speaks of the large number of islands in the river, and refers to islands which formerly existed, but which have been removed. :j27 A rel'cM'oiico to (^ooloy 25 (Ahsi., p. (yoob^y Kx- liibit 2() (Absl., p. 1952) and Oooloy Exliibit 27 (A})st p. 1952) sliows all the islands that existed in 1885 and 1889, many of which liave since been removed by the Sanitary Diistrict, and none of them ])resent the difficulties conjured up by the wishes of the adverse witness. 7. THE FORMER DAMS AND THE BRIDGES, ACROSS THE DES PLAINES, BARGE NAVIGATION. Defendant amassed evidence of bridges now in existence cross- ing the river, not only between Dam No. 1 and the mouth of the river, but for 50 miles above Dam No. 1 through a part of the river which would not be involved in its use at the point in ques- tion. A boat going from Lake Michigan would go up the Chicago Eiver, up the Drainage Canal to Dam No. 1. Between Dam No. 1 and the mouth of the river there were 11 bridges, a list of which appears on page 49 of House Document 263. The existence of these liridges under Illinois law is not consist- ent with navigability. The'heavy freight business of the rivers in the west is mainly done by barge navigation. The witness Woermann stated that he was not acquainted with that fact (Abst., ]). 1485), Imt Captain Marshall in his report said this : ‘^Granting the necessity for a channel way of large capacit}^ across the Chicago Divide, a narrow and deep channel with a more or less rapid current is not of the character demanded by western river navigation. The heavy business of these rivers, especially of the Mississippi and Ohio, is transacted by barges and towboats or by n'ide fiat-bottom steamboats of compara- tively light draft/ ^ THE defendant’s ACCUMUIATED EVIDENCE OF NUMEROUS DAMS, BRIDGES, AND FENCES CROSSING THE RIVER IN BETWEEN I.OCKPORT AND THE CONFLUENCF OF THE KANKAKEE. Two of the dams were built by the State in aid of canal naviga- tion; the others were Imilt ])y i)rivate owners, without any permit or authorization by the State. As to the fences, some of them merely extended partially into the river, some of them went across the river with a swing gate 328 Tor (he passage of boats, and some wire fences went across the river without any gate. These latt(‘r were usual ly washed out every spring. W'ithoiit elaborating the evidence thereon^ it is sufficient to say that they are all of them within the princii)le laid down by this Court in Clark v. Lake, 1 Scam., 229; and in Canal Trustees v. Haven, 11 111., 557-8: they were without authority; they were un- authoi'ized erections erected by the owners at their peril. They conferred no riglits and constitute no defense. As the Court said in 11 111., 558: ‘‘The a])pellees, having a right to only one-half of the water, must use it as it is accustomed to flow down the channel. The erection of the dam across the stream, by means of which the head of watei* was increased, and the value of the site and im- provements enhanced, was unaiitliorized. The assessment of damages for the deprivation of the water, must, therefore, be made with reference to the actual value of the use of one-half of the water uatiirallij flowdng along the channel, without tak- ing into consideration any artificial obstructions extending across the stream. If there had been no diversion of the water, the appellees could not maintain their dam across the river.” In Clark v. Lake, 1 Scam., 229, the action was for obstructions of navigation in the Sangamon River by means of a mill there, and the defendant was permitted to prove the existence of other dams. The court said: “This Court can not conceive what other use could have been made of this testimony, unless it was to urge to the jury that if the plaintiff could have passed the defendant’s dam, he would not have been benefited by it, as he inevitably would have been stopped by the dam lower down the river. This mode of reasoning if adopted was not more unsound in morals than in law.” This court applied the same rule in West Chicago St. Railroad Co. V. The People, 21-1 111., 1. There the defendant resisted the taking out of its tunnel on the ground that there were other tun- nels also, which the court held no excuse. 8. THE RELATIOX OF THE DES PEAIXES TO THE CONTTNENTAE VvWTER- WAY. COOLEY EXHIBIT 37 PROFILE OF THE CONTINENTAL W^ATERWAY. This is the profile of the Continental Waterway. It is intro- duced at page 2286 of the certificate of evidence and set out in the :j29 Atins at i)ago .‘)97()r^. It shows a (‘ontimioiis lino of waterway from the Giiir ol* Mexioo ii[) tlie Mississippi to tlie Illinois, up the tllinois to and inoliiding’ tlie Des Jdaines, to the Drainage Canal ; up the Dra inage Canal to tlie Chicago liiver; througli the Chicago River to the lakes; througli the lakes to the St. Lawrence, and through the St. Lawrence to the Atlantic. It shows the low water of Lake Michigan (Chicago City datum, low water mark of 1847), as being apparently 575 feet above the sea level at the Gulf of Mexico and correspondingly above sea level at the Gulf of St. Lawrence (it is in fact 578.56 feet; see Cooley Exhibit 30) — the water of the Great Lakes now flowing both ways to the sea by gravity. At the site of the Lachine Rapids above Montreal, in a distance of 12 miles the St. Lawrence River has a slope and fall of 85 feet, while the Des Plaines is shown as having in 16 miles a fall of 40 feet. There would be a fall of 38>1 feet in 15.6 miles, or in round numbers 24 feet to the mile as an average.” (Evidence of Cooley, Abst., p. 818.) This exhibit the C^ourt ruled out on the grounds there stated. (Abst., ]). 1188.) This was error. The profile of the Continental AVaterway is a public document made by Mr. Cooley under the direction of the Sanitary District of Chicago, and is labeled ‘‘Sanitary District of Chicago. Profile of Continental Waterway. Compiled from! Sanitary District and U. S. Government Records. Chicago, June, 1901. Copy of Profile made under direction of Lyman E. Cooley.” Accompanying the ])rofile of the Continental ACaterway are two maps and profiles of the St. Lawrence, faken from House Docu- ment 192, 54tli Congress, Second Session, Rci)ort of Deep AAhiter- ways Commission, presented at Abst., ]). 1185 and set out in Abst., p. 1933. These give the detail figures and gra])hic representation, both of the Lachine Ra])ids of the St. Lawrence and also of the Coi'nwall and St. Francis Rapids and the other slopes of the St. Lawrence River. If documentary profiles of other streams and detail figures as :^‘U) to tlie siii'face of other streams, showing tlieir slopes and deptlis as standai'ds of comparison, are to he considered; or if the testimony of witnesses who come from otlier rivers and make express opin- ions based upon comparisons with other streams, are to be con- sidered, then these Government surveys of these streams were competent. Details of difference will be found everywhere, on the general principle that no two peas are alike. It must be observed that in this instance the evidence is directed to the issue: Is the stream navigahlef Does it possess the quali- fications of navigahilitgf As to the issue, the evidence of experts, and the evidence of measurement, and the evidence of the uses of boats, consist as a whole of the application to this disputed stream of standards and conditions found in other streams of known navigability. Mr. Theodore E. Burton, Chairman of the River and Harbor Committee of Congress for the last eleven years. Chairman of the Inland Waterways Commission and Chairman of the Committee on Waters of the National Conservation Commission, had already testified in the case that the St. Lawrence was navigable down stream through these rapids ; and when asked whether navigation could be carried on over a slope of more than four feet to the mile, had instanced this slope as more than that, over which navigation was carried on, and added : ^‘In some portions of the Tennessee between Chattanooga and Riverton it must be more than four feet at different stages of water.” And when asked, on cross-examination (interrogatory 71st), ‘Ms commerce carried on there up-stream?” answered: “To no very great extent up-stream. In the St. Lawrence they go down through the open river with some boats, and go up through a canal.” The legal contention implied in the cross-interrogatory that nav- igation must be practiced up stream as well as down in order to make it navigable, is strictly contrary both to reason and to au- thority. “A river by which the products of the country can be trans- ported to the sea is a public benefit intrusted to the king as pater patriae for the behalf of his subjects in general, which can neither he given away nor abridged by him, and that this transportation is tlie chiel* primary nso of tlio rivor, and it in- compatible with fislieries along its (‘.oast will prevail over tliem.” (Irant v. Gordon^ Mor. Die. 12, 822. cited with approval by the High Court of Appeals in L. R. 2 App. Cas., 872. Nor is it necessary that the stream shall be capable of naviga- tion against its current, nor that it shall be navigable at all seasons of the year, it being sufficient that it becomes navigable periodically from natural causes. 1 Parnham, Waters, Sec. 25. Angell on Highways, 45. Sigler v. The State, 7 Baxter (Tenn.), 493 (1874. Big Creek.) The evidence was in this condition. Mr. Burton had been chal- lenged by the defense to tell if he knew of a river where the naviga- tion was carried on over the slopes of more than four feet to the mile. He replied by naming the St. Lawrence, the Tennessee, and referring to a number of European Rivers, and had stated of the St. Lawrence, ^Ht must be more than that; I am not positive, how- ever, as to the figures.’’ This was what was brought out by the question, ^^Do you know, Mr. Burton, any river where navigation is actually carried on where the slope is more than four feet to the mile. ” We proved the fact in reply by Mr. Burton, and then we supple- ment that by the proof of the profile of the St. Lawrence and the profile of the International Waterway, that this slope is in fact more than that, laid down by counsel for the defense in their chal- lenge. Under the circumstances, the exclusion was clearly error. Testimony of Old Settlers and Neighbors as to the River. As we have seen, the canal paralleled the river and superseded it in 1848; and the two dams, — one at Joliet, and the other at Mar- seilles, blocked any throngh navigation of the rivei* from 1841, on- wards. It followed that a generation of men has grown up and grown old, wlio liave nevei* soon a ho;it in tlii-on«li navigation upon the i-ivor. Tliis same goncn-ation is one wliioli lias witnessed tlie great development of steamboat navigation and the inei-ease in the size of* the boats ii]) to about 1877, — wlien the maximiim was passed, and the towing fleet of a multitude of small liarges towed by a single small, but jiowei'fnl towirg vessel took tlie ])lace of the large steamer. Still later, the motor freight launeh has come in, and is restoring sliallow draft navigation. Bnt tlie generation of men wlio liave seen the river blocked by tlie dams and su])erseded hy the canal have become accustomed to large lioats and tliey are not familiar with the freight launch. Accordingly it has not l)een difficult for the defendant to as- semble some twenty odd witnesses, who testified in general terms that they have lived near the river for more than fifty years and" have never seen a boat engaged in commerce upon it. Some of them add that there never was and never will be a boat in com- merce upon it, and some of them say that there is not water enough in the river for commerce, and proceed to give their testimony as to how much water there was actually in the river, and how much they think there ouglit to be in the river to make it a navigable stream. These witnesses say that there should be a uniform stream of from four to seven feet in depth to be a navigable stream. It turns out at once that none of them were ever engaged in the business of navigation, that they know" nothing of the growth of the variable and progressive art of navigation, that they have formed their estimates on the fact that the canal affords a stream of water from four and a half to six feet deep, which they regard as the minimum, and that some of them have traveled upon the lower Mississippi and seen the big boats that were there. On the other hand, it has been possible for the State to find a few old men still living, who personally remember the navigation which prevailed on the l)es Plaines before the canal was opened. For instance, Francis Belz describes Mackinaw boats, which he saw on the Des Plaines Biver; AYilliam Found describes boats used in the fur trade by the trappers, with cabins upon them; Mr. Clay refers to hundreds of tra])pers upon the river, with their boats. lie was So years old iii l^'ebrnarx , IbOS. (j|(m)|'o(‘ \V. K(5(m1 saw a boat loaded willi boiiseliold ^oods and })rovisions and a family ^o down the i-ivei* fi'oni Wisconsin, bound Foi* New ()rl(‘ans, tin; peoph* being* cn route for Oalifornia. Uriali Bowers saw two large ])oats come down the river in 1849. The witness Nlirhard from Kansas testified to boats in use u])oii the river prior to the oi)ening of the canal; and many of tliese witnesses testified that it was the ccmi- nion and general reputation at the time of such use that tlie river was a navigable stream. AVe liave assembled the evidence of several of these witnesses in brief and summary fashion. Many inferences can be drawn from the evidence of -ea-eh of tlie witnesses, which it would take a practical reprinting of their entire testimony to point out in detail. The thing which perhaps made the great impression upon the trial court out of the testimony of these witnesses was the state- meut of several that in low water they could walk across the Des Plaines dry shod by jumping from stone to stone. All but two of these witnesses located their ]K)ints of passage below Dam No. 1 and above the mouth of the Du Page Eiver. Dam No. 1 accounts for the whole of this. Dam No. 1 was in- tended to be a water-tight dam. Immediately at its right hand above it was a guard lock ond feeder, which fed the water of the Des Plaines River into the canal. In the summer months, in low water, the entire water of the Des Plaines River was turned into the canal, making a stream of water in the canal (10 feet wide at the surface and from 4.] to (1 feet deep. Mr. Cooley for the plaintiff, and Mr. Klwood for the defense l)oth state that the entire water of the Des Plaines River luas turned into the canal at this point during the periocts of low water, and that it was only when the Des Plaines River had enough sur- plus water after filling the canal (10 feet wide and (1 feet deep to have some left running over the toj) of the dam, that there was any water in that portion of the river below the dam. That the entire water of the river was turned into the canal, necessarily leaving a ])lace l)elow for people to cross ^Mry shod,” :;:u is corrohoratod by tlio rollowiri^’ statement by tlie court in Canal 'Trustees v. Haven, 5 (lilni., at p. 554: ^^On tlie 2()tli of April, 1848, the defendants (Canal Trus- tees) diverted, or caused to be diverted into the Canal for the use of said Canal from the natural channel of the Eiver, the tuliole 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 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. ’ ’ When this was done, by means of this dam, of course one coidd cross dry shod below the dam. Yet the trial court apparently made this the controlling fact as to the depth of the stream. Twelve miles below, the canal crosses the Du Page River. The waters of the Du Page are here absorbed into the canal at the in- tersecting basin, and from the common flood some of the water re- turns by way of the Du Page River to the Des Plaines, about four miles above the site of the defendant’s proposed dam. Two of the witnesses say that they crossed in this manner up at Daggett’s Dam at Lockport. As to this part of the Des Plaines River, no question need now arise, because the Sanitary District channel conveys a stream of water 200 feet wide and 22 feet deep directly through this region, and this is by law a navigable stream. But substantially, the same conditions in fact exist at the Dag- gett dam. The Des Plaines River there spread out into a wide body, em- bracing one very large island and two smaller islands, and this Daggett Dam extended originally across one of the channels, and then another, and finally crossed them all and turned the water into the narrowest channel of the river, upon which the mill was located, and impounded it there for use in the mill, leaving the other chan- nel substantially bare. A mile above Daggett’s Mill stood the old original Norton ]\[ill. wIkm'c' iluM'c' \v('r(‘ more' islaiids, and \vli(‘i-e lli(‘ l)(is Idain(*s dividcMl into sevc'ral ('lianiiels. About miles fui'tlier u)) stream, at Summit, tlie eaual was ted From the Des Platiiies by a short feeder, wbieh itself took all of the water out of the Des Plaines iu periods of low water. From 1848 to 1871 the eaual wais supplied with wmter iu the fol- lowing- manner : At Bridgeport a lock connected the canal -with the Chicago River, the canal being several feet higher than the river. In order to get water from the Chicago River into the canal it was hoisted by pumps operating ^Dift-wheels” into the Bridgeport lock, and locked over into the canal. These pumps were built in 1848 and at first were operated only in periods of low water. The canal ran substantially level from this point to Lockport; there was not enough inclination to give a current of half a mile an hour, and the level was known as the ^‘Summit Level.” Near the town of Summit a short feeder connected the river with the canal and fed the water of the river into it. Most of the time the Des Plaines River supplied the whole of this water for this upper level. The water poured out from the river via the Summit feeder into the Summit level of the canal and ran both ways, until the level was full, and then from the full level flowed by an im- perceptible current southwest toward Lock})ort. The “lift wheels” and })umps at Bridge})ort sufficed to keep the lock full, by which boats were transship])ed from the river to the canal and from the canal to th.e river, and to su})plement the^Des Plaines in feeding the Summit level. Substantially all of the water of the upper Des Plaines was turned into the canal at the Summit feeder, leaving much of the bed bare in low water in summer. Part of it was turned from the canal and feeder at the Norton Mill; the tail water of the Norton Mill emptying back from the canal, — where it was artificiaJly raised above the basins in Lock No. 1, — into the rivei*. The Cnliiinot fecMler ('iiteied llio (-anal fVoiii tlie bed of the old Sa^'aiiaskoo Swaiiip, soinetijiios (‘ailed the The I)es Plaines and tlie Canal, — with hotli the Des Plaines water and the (dihunet feeder water, — again united in tlie upper basin above Dam No. 1 in doliet; and lieie again the combined fiood of the remnants of the Des Plaines Hiver with the tail water of the Noi-ton mill and the I. & M. Canal, reinforced by the Calumet feeder, are all im])ounded in one basin, and from this basin turned through the guard lock into tlie canal. (The canal was further reinforced below by the Du Page feeder, the Kankakee feeder and the Fox River feeder.) Tlie two ])laces where the dry-shod crossing is said to have been etfected in the ])eriod ])efore tlie Dee]) Cut water was let in, in 1871, were — (1) below the Dam No. 1, vdiere the water was all turned into tlie canal, and (2) below the Summit feeder and Norton mill, and in the vicinity of the Daggett Dam. All of tlie testimony of the several witnesses about jumping from boulder to boulder and going across dry-shod in low water relates to places vdieie the rvater has been diverted by one of these means. USE OF STKEAM. Mackinaw Boats, Description of — “I have seen Mackinaw boats on the Des Plaines River. They were a kind of a flat-bottom boat, and drew about a foot or a little over a foot of water. They were fifteen to thirty feet long, per- haps longer; six to seven feet wide. They were loaded with pas- sengers and loads.” (Deposition of F. Belz, Abst., pp. 440, 441.) live in Bradford, Stark County, Illinois. ! I will be eighty-four years old the 2d of March, 1908. I was born March 2, 1824, in Clark County, Indiana, near Terre Haute. I came to Illinois in 1829, to what was called Reed’s Grove, in Will County.” (Deposition of George W. Reed, Abst., p. 155.) ”It was in 1832, in October or November. IVe built a cabin there, about four rods from where the old National Hotel stands now. Mr. George H. IVoodruff, one of our old his- torians, had a drug store there across the street for forty years before he died. Father was digging a race and con- templating building a mill for grinding corn and wheat. He began building a dam in the river near the south end of the JoUVrson slroel brid^'o. VVe HvcmI in Jolic;! until IHdb oi- 18.‘)7, niul tlion moved ba(‘k to our old farm at deed’s (irove.” {Ihid., Abst., f}). ir)().) “When we lived in fJoIiet and Will (bounty there didn’t seem to be many fords in the river. I don’t remem})er of erossing at but two or tliree 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 loiv stage of the water, it would come up over the wagon hubs, pretty near up to the wagon box, in fording it. There was another 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 just about a mile east of Channahon. W^as similar to the others; about the same depth.” (Ibid., Abst., p. 156.) ^^Some forded when it was pretty deep; some crossed in skiffs and little boats they had. I don’t remember them hav- ing a ferry boat. There was no bridge except a foot bridge put up on long slabs in the upper part of the town. They had that one season. In high water it was between a (juarter and a half a mile wide; in low water it was not near so wide. T went up and down the river fishing a good deal while living at ’the point now 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 v/ere playing on a long horn of some kind, and seemed to he enjoying themselves bully. They came right along and went on through and down the river without 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 thirty or forty feet long, mayl)e as long as forty feet, and sixteen to twenty feet wide. It looked to me like it was al)out four feet deep and drawing al)out two to tv/o and one-half feet of watei\ It might have been an old boat that tins family had bought up north in Wisconsin, or some place, 'and was going down south on. They said they were going to a warmer (‘ountry, and that it was too cold up north for them. There were five ])eo])le in the boat, anyway; some men and some women. They had farming utensils and bed clothes, (diairs 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 neai* that.” iltyid., Abst., i)p. 156, 157.) “T did not see the boat have any trouble whatever in going down the river. They said they had gotten along ni(‘ely.” {Ibid., Abst., p. 157.) 8 “Tlio 1 ) 00 } )le oil tliat boat with the faianiiig inijileinents said they were going to a wanner country. Tliat was in tlie fall of tlie year.” {Ibid., Ahst., pp. 159, IhO.) “I believe it was sufficient foi* boats drawing tliree feet of water during the most of tlie year.” (Deposition of George W. lieed, Abst., p. IfiO.) t used the river ])ersonally every year from ISb-t to 1900; owned tliree ])oats— 14, IG and 22 feet long — on tlie river. Three sliallow ihaces; otherwise, no trouble for boat drawing three feet of water. No trouble for boat drawing fifteen inches all the way, except one place at site of old dam at Treat’s Island for about 100 feet. '‘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 boulders. 1 had no trouble in running a rowboat 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 channel. About one-third of the way down the island there used to be an old dam, I think, or something. There was the shallowest place. I have grounded there a great many times; sometimes I had to get out and pull it over. Generally I could i^ole it over. "The length of that shallow place was not, I don’t think, over 100 feet. After that the water was deep until the mouth 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 acqueduct there was an old dam used to be there, and you passed through a rather narrow channel there. Below that it was all bowlders for half a mile to the mouth. If you dodged the boulders you were all right. If you did not, you would come to grief. These were loose boulders. There would be about three or four inches over the top of them, maybe two feet of water between them. The boulders were about three feet in diameter, a great many of them. Tliere was plenty of water between the bowlders if you could dodge them. About 1885 I made a trip from here to a mile blow the junction of the Kankakee and Des Plaines rivers and returned on the canal the same day, making a trip of about thirty-two miles from eight o’clock in the morning until ten at night. That was probably either in June or Seiv tember; 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. Me did not have to pole at all iliat irii). TIio boat, loaded as it was, drew Ixdween twelve luid Ht’teen inelies. We put in opiposite tlie oatmeal mill, a})oiit three-cpiarters of a mile below Jefferson 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 boulders were removed and the hundred feet of shallows were excavated at Treat ^s Island, and the boul- ders at the mouth and at Brandon’s bridge were removed, I' could run a boat carrying three feet of water on that. I pre- sume 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. * * * “ ‘Q. At the mouth of the Des Plaines isn’t the current very rapid, boiling! A. I should not say so; there is a good, heavy current above the mouth. ' “ ‘Q. And the water is in waves from the rapid declivity f 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 descrilDe 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. * * * “I never heard of people being capsized there. I never was. I ran right through there at the mouth of the Des Plaines without any trouble, did not hit a rock on the passage. Went a clean shoot from here down there.” (Deposition of Arthur C. Clement, Abst., pp. 892, 398, 895.) Flanders, sixty-two years old in 1908, used river all life. ( Depo- sition of James R. Flanders, Abst., p. 429.) “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 ’07 or ’68 I had mj first boat, and from that time probably up to al)out ten years ago I used the boat every year. * * * “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-l)ottomed scow- built boat. It would draw loads from ten to twelve inches of water. We found that amount of water or more. A green- horn could not have got through on account of the rocks. A man that knew the channel could go through with a l)oat in from a foot to sixteen inches of water. It might ])ossibly have been less in an extremely dry season. There are three shallow points. There is a ledge of gravel at Brandon’s bridge and a shallow })()int at Treat’s Island, and another shallow ])oint ti-oin a (]narter to a half mile this side of the junction of the Des Plaines and the Kankakee. “Our party of seven went dovm in ’68. I have been over the 1 ‘iver since the flood of the drainage canal lias been turned in; that is, since January 17, 1900. Tliere is very mucli more water since then, very much more, indeed. I found at differ- ent 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. * * * “When we took the boat with five to seven people it was put into the Des Plaines River just below the Adams dam. We left the boat at Ottawa. We did not bring it back; we did not take it down for that purpose. We could have taken it back if we wanted to in the I. and 'M. Canal. I have done that hundreds of times. We owned the boat and we had no objec- tion except we were not looking for toil. We could have brought it back. I have been down on the canal and down on the river with larger boats than that. We could not rely upon the wind, although we had a sail, and there were rapids that we could pole by. We had to pole it. Anyone as skillful as an Indian might possibly have rowed it, a boat of that size, but in these rapids 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 boat go down. I presume I have ])een on the river a hundred times. Through neglect or misman- agement I have been caught on the rocks. One occasion I remember particularly we did not get out and pull the boat. We 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 mouth of the river are per- haps 25 rods up. 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 under- stand the boat and did not understand the channel would be liable to get tipped over. I don’t think it would be as hazard- ous down there at the junction of the Des Plaines and Kanka- kee as at Brandon’s bridge. Since the 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 person being capsized on the Des Plaines River 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. We :ui i>'oiu‘rnlly ('anio hack by liio way of ili(3 I. and M. (kirial, iriakin^’ a [)()rtai>'e of about 20 rods in the cana!. “Wo ncvor attoinptod to oonio ii[) any ^reat distanc'o sinoo tbo Sanitary water was turned in. The didioulty would })e tlie swiftness of the current. I have seen the time when I could pick iny fellow; we could not go up in race horse time, but we could make it, give me Clement in the stern with two l)addles. (Deposition of James R. Flanders, Abst., pp. 429, 430, 431.) ‘‘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 towpatli 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 Chi- cago and were going down to New Orleans and then to Cali- fornia. That is what the report was. A lot of the boys fol- lowed them down to the dam when they went over for curios- ity. That was awfully hot weather at that time.” (Deposi- tion of Urias Bowers, Abst., p. 421.) ‘H am over 69 years old ; live at Sherwin Junction, Cherokee County, Kansas. I was born in Joliet, Will County, Illinois, on November 22, 1838. ‘^The Des Plaines River had different stages called high and medium stages. In the high and medium stages of water any raft or boats could run u}) and down the river at any such seasons when the river was not frozen, I would say from Le- mont down to Dresden Heights. This is as far as I know positively that such rafts or boats could l)e ])ropelled in the Des Plaines River. During the years I lived on the Des Plaines 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 liigher 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 T have frequently 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 n dry season we would have a good stage of water all summer, and genei’ally there was tlii'eo or four mouths in the lattei- part of tlie year tliat the or iiKHlium stages eontirnied to exist. “During the time I resided on the ]‘iver i saw small ])oats and rafts going upon the river. The boats went up and down the river and the rafts went down the river. They eanie, so far as I know, from Lemont, C^ook County, Illinois, and floated on the river to south of Joliet and to the Hayden saw mill. I frecpiently saw the boats and rafts eoine into the mill con- taining hardwood for manufacture. I often heard of merchan- dise being shipped on tlie river, but have no positive knowledge of sucli transaction. ] was often in tlie river swimming and was around it fishing, and knew it well from Lemont down to where the Kankakee and Des Plaines form the Illi- nois Liver, which was commonly known as the Channahon district.” (Deposition of George H. Erhard, Abst., pp. 162-8.) In 1856 Swalm’s Quarry was at the head of Lake Joliet. It had a deeply rutted road leading down to what seemed a landing place on the lake. It was current reputation then that stone was hauled down there and loaded onto boats. (Deposition of William W. Stevens, Abst., j). 410Q In 1847 a boat with 16 men and yoke of oxen upset in 20 feet of water and 10 men drowned, just above mouth of river. (Ibid, Abst., pp. 403-4.) “I recollect hearing of it at the time.” (Deposition of Harlow' H. Spoor, Abst., p. 418.) In 1834, before opening of canal, the Jesups hauled lumber on the river from Kankakee ; the Jesups told me. They built a small flat boat and used it for that purpose : “Nobody told me about the dam at the mouth of the Des Plaines Liver. There was not a dam there. That was in 1834 and 1835.” (Deposition of William W. Stevens, Abst., p. 415.) Henry Fish told me he brought barrels of whiskey down from Chicago in boats. (Excluded.) “He told me they were Mack- inaw boats.” I have seen a great many of them. (Excluded.) ( Deposition of William W. Stevens, Abst., pp. 409, 410, 417.) RAFTS SAW RAFTS COME THROUGH. “I have known of the rafting of lumber and timber dowm the Des Plaines Liver. 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 wude. It came dowm the Des Plaines Liver to what they :u:; Iho lowpatli l)ri(l^i>x‘; tlien tli(‘y sej)arte(l il, took pai't ot* it in the Io(‘ks and the other lo^'s they broke looser and tiny rolled over the daekson street dam. ddiey floated ttiein into the eaiial and tlien floated them over tin* dam again down 1o file boom for eateliing the logs tliey liad at JIavens’ .mill. 1 have seen Mackinaw boats on the i)es I^laines liiver. d1i(;y 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 80 feet long, ])er- haps longer, 6 to 7 feet wide. They were loaded with ])as- sengers and loads. Describe the loads! A. I should think there was some merchandise of different kinds, I could not tell yon what. I think there was salt come 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. The boat would come down with barrels of salt! A. Yes, and distribute it at different points on the way down. You saw the boat with the barrels! A. Yes, sir. How old were you then! iV. 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 vras pretty deep, other places it was shallow. In the spring of the yeai* there would be a big flood and of course the water would be higher, and in the summer time it would be a little shallower. I made trips both ways from the bridge here. I have bee7i up the river to Goose Lake. Tn the spring it would be from three and one-half to five feet deep; in August and Septem])er 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 8walm quarry, or the Davidson (piarry. I have seen the old road going down to that. This road took an angle off from the Brandon’s bridge road and ran right down into the Swalm quarry. Tt ran right plump down to the river gt the water’s edge. I never saw anybody ford the river there. It was pretty deep there; I could not say how deep. Mr. Lappin, an old fisherman here, told me they unloaded the boats down here and took the teams and hauled tliem down the river below the dams and loaded them up again. That was when I was a young man. Mr. Lappin is dead.” (Deposi- tion of Frances Belz, Abst., pp. -t89, 1-40, 441.) ‘H guess I was not more than five or six years old when T 344 snw tlio first ral't (oiiie down ])eforo there were any dams built up here, and I tliink before a dam was built down liere at Jefferson street. Well, I was most too small to know at tiiat time where these rafts (*ame from. * * * j couldn’t exactly say as to the size of the raft. It might liave l)een two or three or four or five lenglits, but then there were two sections wlien I come to think of it. * * * looked as though there were a great many logs in it. * * * * * * “ I saw on the river nothing l>ut a yawl ]}oat; that looked to me like those boats they have in Cliicago on the lake; them little boats; it vras a trapper, a nice big boat everybody was looking at it. There wms probably one hundred on tlie 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 trap- ping. He had come along from Wisconsin, up through there that way. I saw the furs on the boat. ‘Hie was showing them to my brothers, a lot of steel trajjs and provisions, a tent and a whole outfit. There were pro- visions on it and boxes. Everything was boxed up, and then I saw several smaller boats after that, trappers. * * * 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 poles were in the boat. He didn’t claim to have any difficulty in navigating the river.” (Deposition of Samuel Hatons, Abst., pp. 483-484.) “I am familiar with the Des Plaines Piver, 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, 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. n* # * p recollection that the rafts did come down before the canal was opened ; ’45 to ’47, 1 would not state particularly just what years. I used to see them fre- (luently in the river and logs coming down in some shape. “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 sawmill, and ready to be used there. a* * * p seen boats come up the river here that were said to be trappers’ boats, or probably fishermen’s, but I never saw any freight carried on the river. I saw evidence, I think — there was traffic somewhere. I know of the general 145 talk or i‘ 0 [)iiiiiti()ii in ilio inn^iihoi’Iiood us to tli(‘ navi^uhiliiy of ilio riven*. It was genei'ally (‘onsidored t)y (iV(n*ybody of llui old inliabitaiits as l)eing a naviga})le streaTn. Idioy always rogarded it as a iiaviga!)le stream. This was long prior to the opening of tlie canal. That was about 1848, so that it was generally understood in tlie eoinmimity tliat it was a naviga})le sti*eam. * * * I lived in Channahon about a year or such a mat- ter along in ’43, and I used to see cordwood piled up on the banks of the river on that ford, that I know must have been landed there, I think from some boat, because there was no timber anywhere around there.” (Deposition of John W. Taylor, Abst., pp. 488-489.) ‘ ‘ I made 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 liave sworn to it in Mr. Chaney’s office. I thought of it after- wards what that dock was built for.” (Deposition of Lewis K. Stevens, for Defendant, Abst., p. 553.) FUKS. There were a great many people engaged in the business of trapping in the early days; everybody, most, was a trapper that 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. * * * Others that did use skiffs, used them to carry these traps out and set them at different places. They went every morning and gathered up what they had caught and skinned them and brought the skins in. * * * Charley Smith, probably 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 — away 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.” (Deposition of John McCowan, for Defendant, Abst., p. 624.) FUR TRADE. There was some boating on it, mostly trappers and hunters : ‘M observed that prior to 1860 there used to be more water in the river in the summer time than theT*e was after that for some years. ‘‘That was because the farmers v^ere draining tlieir lands about that time everywhere by ditching and tiling. The tiling and di’ainiii^’ di*ied up tlio sloiiglis and tlien in tlie summer there was no water in the river. It was lower afterwards than it was before the i)utting in of tlie drains. 1 liave been fishing np tliere i)rior to ISfiO wlien tlie water was two feet and some ])laees four feet deep. After tliat in a very dry summer there was no wmter running tlirough the river at Loekport. Of course there was plenty of water in the spring and fall.” (Deposition of Obadiali Hicks, Abst., p. 436.) They had liateaux with cabins on. (Id., p. 438.) They were working for some company. (Id., p. 439.) BATTEAUX WITH CABTX. 1 will be eighty-two years old })retty (juick. Have lived in doliet fixty-six years this spring. That is, I came in 1852. ‘On the spring of 1853 and the fall of 1852 I hunted on the big island this side of Lemont a good 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. 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 rub- ber boots and pushed it in the deep water. We used to fish up and down from Loekport to Willow Springs.” (Deposition of William Found, Abst., p. 461.) BAFTS. “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 sawmill that was right below the next dam there called the Haven sawmill. In those days that is all I saw. * * * p 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.” (Deposition of Jacob Blaess, Abst., p. 481.) “I have known of the rafting of lumber and timber down the Des Plaines Biver. 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 Des Plaines Biver to what they called the tow path bridge ; then they separated it, took part of it in the locks and the other logs they broke loose and they rolled over the Jackson street dam. They floated them into the canal and then floated them over the dam again dovm to the boom for catching the logs they had at Havens’ mill. I have seen :m-7 AliU'kinaw bonis on tlio Dos DIninos Divor. I^lioy wore; n kind of n (Ini Ivotioiii boat and drew aboiii a iooi or a litilo over a iooi of waior. ''riiey were 15 to lU) feet perhaps lon^^er, six to seven feet wide. They were loaded with passengers and loads. “Q. Describe tlie loads. A. T slionld think there was some merchandise of different kinds, I could not tell you what. I think there was salt come down, but 1 could not say if it came on the raft or on the boat. There was a man in Cliicago used to own pretty mucli 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 Lonis. The boat would come down with barrels of salt! A. Yes, and distribute it at different points on the way down. You saw the boat with the barrels! A. Yes, sir. How old were you then! A. I was between 10 and 12 3 "ears old. 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 tbe spring of the 3 "ear there would be a big flood and of course the water would be higher, and in the summer time it would be a little shallower. I made trips both ways from the bridge here. I have been up the river to Goose Lake. In the sjnfing it would be from three and one-half to five feet deep; in August and September three feet. On the west side of the river before you get into Goose Lake it was from three to tliiee and one-half feet deep. I knew the old Swalin (piarr\% or the Davidson quari\v. I have seen the old road going down to that. This road took an angle off from the Brandon’s bridge road and ran right dovm into the Swalm qnariy. It ran right plump down to the river at the water’s edge. I never saw an\d)ody ford the river there. It was pretty deep there; I could not say how deep. Mr. Lap- pin, an old fisherman here, told me they unloaded tlie boats, down here and took tbe teams and hanled them down the river below the dams and loaded them np again. That was when I was a young man. Mr. Lappin is dead. ^‘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 np. We came up hand over hand in the river.” (Deposition of Francis Belz, Abst., pp. 489, 440, 441, 448.) 348 JOL I Pyr SIGNAL. ‘Moliet Signal, Tuesday, i^Iareli 28, 1848. Tolls on the Canal. * * * The rafting of timber on the canal or feed- ers 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 otfense.” (Deposition of Francis Belz, Abst., p. 444.) This regulation was aimed at an existing practice. Tliey would not regulate or prohibit a thing that didn’t happen. Tanner — Has many times seen the logs in the upper basin at the boom and seen them tumbled over the dam and floated down to the mill. (Deposition of Eiley Tanner, Abst., p. 461.) have lived in Will County since 1859. Have boated on the Des Plaines; used to from 1869 to 1876, usually in July and August. We started in one boat just below tlie old planing mill at Adams ’ dam. * * * We 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. We had to get out 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 were 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 tops above the water. We had no difficulty anywhere else in getting 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, varying of course at different points. In 1869 I made the trip from here down to Marseilles. We had to pole through and lift over at the one point at the head of Treat’s Island.” (Deposition of Henry H. Pohl, Abst., p. 444.) ‘H am sixty-five years old. Live in Joliet and have lived in IVill County ever since 1853. Have been acquainted with . the Des Plaines Eiver 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. Ht 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 go down twice a year, in the spring and again in the fall. From the early use in the spring to the latest use ill the I'all it would iie about five or six iiiontlis l)(dAV(;(ui. At the head ol* db*eat’s Island was the shallowest y>laees. I luive been througii there two hundred times. We used to ^o [iretty often. I have gone down there when tlie water at the head of Treat’s Island was four feet deep on the riffles. At the shallowest })lace we could go up there with a boat draw- ing 18 indies 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.” (Deposition of George Albert Parrent, Abst., p. 448.) The road down to the head of the lake led to a kind of landing place at a deep place. It must have been for loading boats. (Id., Abst., p. 449.) They told me in 1853-5 it was used to haul stone down to boats to take down the river. I have owned 40 or 50 boats on the Des Plaines. (Id., Abst., p. 449.) knew of the report of the men being drowned at Dead Men’s Hole near the mouth of the Des Piaines. I came up that morning. I worked at Marseilles on the derricks and they ran out of safety fuse, and Mr. Griswold out here in Yankee settlement used to make it. They sent me to Gris- wold to get some fuse for blasting purposes. 5Yhen I came up there they told me that the six men were drowned and the boat upset. I passed right alongside of the river at that point. I could not tell how many people were there. They told me there were six drowned that morning and I think a yoke of oxen.” (Deposition of Charles Hoy, Ahst., p. 467.) REPUTATION OF USE. Shabbona, the Indian chief, 80 years old, in 1857 told me the Indians used the river both ways and the white men used it going- down stream. The high water of 1857 was 6 feet higher than that of 1907. (Deposition of George W. Paymond, Al)st., p. 434.) Excluded by the Court. ‘H knew Ghabbona, the Pottawattomie Indian Chief. He told me the current report as to the French and Indian trading- in furs up and down the river. * * * 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 brought furs and took them up to the big watei'S from here, at Fort Dearborn somewheres. I asked him how they could pull over these riffles, and he indicated with a cane G)C)led up.' ‘> 50 ''lOiat is all I roiiienibei'. ^lOiat was about tlie outbreak of the (bvil War when Sbal)boua told me.” (Deposition of George At)bott, Abst., p. 455.) ^‘My motlier came to Will County in ’51 and my father about ’55 or ’54. My motlier’s name was Susan Sisson. Her folks settled on the Hanford farm a mile east of Lockport in ’51, and moved from there north of the river in ’52 or ’55. * * * 1 heal'd 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 lier speak about it many times. My father and mother are both dead.” (Deposition of George S. Wightman, Abst., pp. 425-426.) REPUTATION AS TO THE BOAT LOAD OF WHEAT, (AYoodruff’s History of "Will County, Abst., pp. 401-2) : ‘‘As early as 1854 the products of the farm were boated down the Kankakee to the Des Plaines 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 Iro- quois, with 500 bushels of oats, 500 bushels 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 Des Plaines, when near Treat’s Island, the boat dipped 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 neighbor- hood quite rapidly, and they had no trouble in disposing of their whole cargo, the oats at 50 cents and the wheat at 75 cents per bushel.” (Deposition of lYilliam W. Stevens, Abst., p. 402.) The boat load of grain getting wet at Treat’s Island was com- mon report at the time : “I crossed the river at one time, and only once, I guess, at the mouth of the Des Plaines where it goes into the Kankakee I crossed in a bugg^L In some places it was pretty deep and some of the places it was rather shallow.” (Deposition of Harlow H. Spoor, Abst., p. 419.) “During most of the year the Des Plaines Piver was of sufficient depth to permit the navigation of boats for com- 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 slU'li boats as I s'poak of up and down wltliont any Ironble. 1 know that to bo a i'aot rroni niy knowlodgo of llio doptb of tlio rivor, as 1 observed it at that time. That is the way I lookcnl at it — the depth of the i-iver. I i‘emenil)er one time wlien \ was living at JUmd’s (Jrove, before I moved south in Mereei* (\)nnty, tliat my brotlier was down at the river and ^ot some wlieat from a man who liad gotten the wlieat wet in trans- ])orting 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.’’ (Deposi- tion of George W. Eeed, Abst., pp. 157-8.) ‘Mdie only thing I learned about the boat was that the grain got wet and the man who had it was selling it out because he couldn’t take it on to market. On account of it being wet it would spoil 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. I was not so familiar with the Des Plaines Kiver in 1833 and 1834 as I was before that. I remember the Beard dam at Beardstown, across the river. T don’t remember the date. Tt was about the time the feeder dam was put across the Kan- kakee. That was several years after my father was building the dam at Joliet. * * * j don’t rememher any falls or anything that you could call rapids hetween Joliet and the mouth of the river. There were some places not so deep and some places the water was pretty swift. 1 don’t remember any rocks across the channel, it was a pretty smooth lime- stone bottom. Those fords I think they did aim to find, gen- erally, just above riffles.” (Deposition of George AY. Peed, Abst., p. 159.) ”lt runs in my mind that that boat with the grain came from the Bull Bony settlement (Bourbonnais Grove), a settle- nient on the Kankakee Pivei*. That was way up near Kan- kakee City. Kankakee is right whei'e the Bull Bony settle- ment was then, I think.” (Deposition of George AY. lieed, Abst., p. 160.) Air. Brockway, 59 years old, always lived in AAJll County, near river; boated and used river a great deal. have forded the river with a team just at the head of Treat’s Island (juite often. \Ye would go over there when gooseberries were ripe to get gooseberries. I have forded it when the water would come into the wagon box. Sometimes it would he (juite a hit lower and eonie up to the liuhs. Soine- tiuies 1 went there and eouldn’t get across, wouldn’t risk it; it was too deep and I would walk hack. Prohahly three times a year I would do that, as long as there were berries. * * * My father told me about taking a flat boat down the river from 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 of it as a flat boat lie took down the river. I suppose it would be 20 or JO feet long, something like that. I know Davidson’s quarry. There was a road there for awhile that went down to the river. I have lieen there and seen where it came to the water’s edge. It was quite deep there, made on purpose for loading stuff onto the boats from the road. Idiere were 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 up that main road where Brandon’s bridge is. I have forded it there in July and August. It ivotild come up pretty near to the box in the loivest season of ivater.’’ (De- position of Edward D. Brockway, Abst., pp. 458-459.) Mr. Brockway knows and describes the old quarry road leading down to the landing place at the head of Lake Joliet. (Id., Abst., p. 459.) Davidson used it to send his quarry stuff down. (Id., Abst., p. 460.) ‘‘Father came in 1836. * * * j have heard my father and others tell the current reputation of the history of the early days on the Des Plaines River. 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 remember particu- larly 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 under- stood 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 heard them talk these things over and over and over again. ******* “I only know about supplies coming rq) 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 sclioolUM’s. lie said soiiu' (*ain(‘ by l)()al. Ifc^ spoken of rniit brought ii']) from furtlier soulli boeauso tlior(‘ was no t'niit here.” ( 1 tojiosition of Mliza ]\ Jon(*s, Abst., pj). 4-f)2- 4():b) Kxeliuled by the Ck)nrt. “I have heard from Mr. Paddock and from old settlers tlie (mrrent reputation as to the liistory of the early nse of the river. 1 have lieard 'Mr. Paddock and onr neigld)or, Mr. (Jollins, in talking over their early times, state that supplies were l)roiight np tlie 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 I went to live with Mr. Paddock. He talked about those things after my liv- ing Avith him.” (Deposition of Samuel W. Jones, Abst., p. 463.) Excluded by the Court. ‘H have heard my father (he came here, I think he said, in 1836) say they brought apples up the river. 1 asked him how they got supplies when they first came here. Well, he said they brought it in on boats. 1 don’t know what kind of boats. He said that they brought some from the south and some from Chicago. He said they brought salt and groceries from Chi- cago.” ( Deposition of Frank Paddock, Abst., p. 469.) Excluded by the Court. ‘‘I have an uncle by tlie name of J. Goodnougli. 1 couldn’t tell you the year my uncle came to Illinois. It was somewhere either before 1 was born or after 1 Avas born, that he AAms here, but I have heard him tell the story a number of times about his journey from the east to 8t. Louis. * * * ‘‘He found out at Chicago tliat by taking the Des Idaines River he could go doAvn to St. Louis, and there Avas two othei- men Avith him and they either got a boat there or at the river. 1 couldn’t say which; and they went down through here. He described going through doliet, and down at Morris; he de- scribed a stream going in on the Avest side, south side of the river I Avould say, and just beloAV that an island, and south of the island was jirairie; that was Morris. * * * “I couldn’t say how long my uncle has been dead, because Avhen we came aAvay from New York State Ave heard nothing from them until years afterAvard. 1 had another uncle there that wrote of his death, but what time T couldn’t say. I saw my uncle that went doAvn to St. Louis the last time just before \A"e came to Illinois in ’46. I was twelve or thirteen years old 854 tlioii. I have* hoard iiiy iiiiole toll tliis story \ have narrated two or throe times, and* also my mother told it afterwards, be- cause it was a ^'roat thin^’ in tliat section of the country to take such lon^‘ tri))s as lie had. He went down to Cairo and 11 '}) the Ohio River, and around liome that way. The folks thought he was dead because he was gone so long.” (I)e})Osi- tion of L. F. Conant, Abst., p}). dOG-dDA) Excluded by the Court. UPPER DES PLAINES. Old settlers (Short and Miller) claimed they came up in canoes bringing goods and provisions. (Deposition of Christian T. Hey- decker, Abst., p. 20G.) ILLINOIS FORMED BY DUPAGE AND DES PLAINES. ‘^According to Schoolcraft, when the Des Plaines and Du Page come together they form the Illinois, and that junction is about two miles, may be a little more or a little less, from the junction of the Kankakee. My understanding is that it is the Du Page River and tlie Des Plaines River that form the Illi- nois river, and the Kankakee empties into the Illinois about two miles below the head of the Illinois. 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 Des Plaines and Du Page come together, and I think it is borne out in Schoolcraft’s stipulation, and one thing and another, of the Mississippi Valley. I know that is what they always said. They appeared to be Indians that were well informed.” (Deposition, John McCowan, Abst., p. 625.) PORTAGE. ‘^Up here from Summit this is what I have seen. The river up there runs both ways in high water. Old Ogden up there in Chicago dug a ditch ; it was called the Ogden ditch. I sup- pose this drainage ditch has that from Bridgeport down, and he dug it into the Des Plaines River. That brought the water' from the Des Plaines down, and the state made him ( Ogden ) put a dam in there because the high water would run it right out into the lake. It was for boats going.” (Deposition, Enos Field, Abst., p. 599.) ‘‘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 we 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 jhaces. I cannot say how far up the Dos IMaiiios Ilivor went; F don’t know today liow far up it i>’oes toward "(drK'ago, but F know the Dos Fdaines Ftivor and the south braneli oi* the Clii(*-ago Ftiver eorne together in high Avater. Of eourse we must have been between the south braneh of the Chicago River and the Des Plaines. The condition that I liave described existed all the way across that stretch of seven or eight or nine miles that I traveled the first time.” (Deposition, John McGowan, Abst., pp. 621-622.) CURRENT. ^Mt was dead water half the way.” (Deposition of Clement, Abst., p. 395.) ‘‘Q. At 'the mouth of the Des Plaines isn’t the current yevy rapid, boiling? A. I should not say so ; there is a good heavy current above the mouth. 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. ‘‘If it was as you describe it, I would have smashed a boat there, and I have been through there a thousand times, I gness, and I never smashed a boat there yet.” (Defendant’s cross- examination of Arthur C. Clement, Abst., p. 395.) “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 around and go back toward the lake again. He is apt to go down in safety in high water. * * 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 was swift there, but it was swifter right below the mouth where they used to have the old darn. * * * The water makes waves now, but in those days there wasn’t 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 use to think so. Two years ago last summer, the summer of 1905, I was down there. The drainage water was in the river then. We put our boat in right below the Kock Island railroad bridge. I do not think 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 was pretty swift, because it would suck and roll the boat. I remember we took five or six, three of them women, right down there. There were three men and three women and a little child in the boat. We pulled it over. We came back up the canal. Ft was too much woi*k to come ))a('k up from the moutli. 1 liave seen men eome uj) ])retty sti'ong euri’ents. I eouldn’t do it. (Age 78.) I have been on the Missouri for two years. * * *■ The ('urrent is sucli that no eommerce could go up the river, in your opinion, is that so?” (Ohjection.) “A. I sliould not think so.” (Deposition of (leorge Al)- hott, Ai)st., })]). 456-7-8.) “We used wliat they called liip boots, tall rubber boots that (‘ame up to the liips. It would come within an inch and a lialf or iu'o inches of going over the tops of them to ford there. Of course we could ford it over all the time that T was there hy facing up against the stream. If you turned sideways the current on tliose riffles there would take you off your feet. I made the trip only once that time, again the next fall and eiglit or ten years after that I used to make the trip quite 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 point. It would never freeze over the riffles. It would vary somewhat of course after short rains, but it would not vary very much, prohahly four or five inches. It would he from just above the knee clear up to the hip. I iiave seen it there when you coudn’t ford it. That spring I couldn’t ford it; it was too deep. I have been as far down as the aqueduct quite frequently. 'It was called ^Dead Man’s Hole’ down there, around the curve. “I was tipped over in there once at the head of Treat’s Island, what they call Deep Water. I don’t think it was on account of the current. I guess the other fellow got flounder- ing 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 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 with- out getting out. I never done much with the boat myself. ^Ve had to face upstream in fording the river. The current was so swift it would sweep you off your feet. My friend was taken off his feet and went under, gun and all. I think a boat could go up, a boatman that understands running them ; by shooting different directions he could get through. I ain’t anv boatman.” (Deposition of Daniel W. King, Abst., pp. 465-6.) BOULDERS. Boulders in three shallow places — about 3 or 4 inches of water over the top and about 2 feet of water between them. “From Malcolm’s dam down to the mouth there was plenty ot‘ water until you got down about a halt* inilo this si(J(‘ of l^raiidou’s bridg’o. ddiero was a shallow })la('e there amongst the boulders. I. had no trouble in running a row boat ther-e, if 1 knew where to go, drawing fifteen inclies of water. Tlieri you liad clear sailing if you knew the channel, right straight through to Treat’s Island. There yo^i took the left hand channel going down, that is, the east channel. That ivas the deepest channel. About one-third of the way down the island there used to be an old dam, I think, or something. There was the shallowest place. I have grounded there a great many times ; sometimes I had to get out and pull it over. Gen- erally 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 of the Du Page 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 narrow channel there. Below that it wms all boulders for half a mile to the mouth. If you dodged the boulders you were all right. If you did not you would come to grief. These were loose boulders. There would be about three or four inches over the top of them, maybe two feet of water- between them. The boulders were about three feet in diameter, a great many of them. There was plenty of water between the bould- ers if you could dodge them. About 1885 I made a trip from here to a mile below the junction of the Kankakee and Des Plaines Rivers and returned on the canal the same day, mak- ing a trip of about 32 miles from eight o’clock in the morning until ten at night. That was probably either in June or Sep- tember; there was no trouble on the water that trip. 1 made two carries, one from the canal into the river, one from the Illinois River into the canal. We did not have to pole at all that trip. The boat loaded as it was drew between twelve and fifteen inches. We put in opposite the oatmeal mill, about three-quarters of a mile below Jefferson 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 boulders were removed and the hundred feet of shallow\s were excavated at Treat’s Island, and the boulders at the mouth and at Brandon’s bridge were removed, I could run a boat carrying three feet of water on that. I ])resnme in the neighborhood of three-quarters of a mile, taking all these three together, would have to be (‘leared out before you could get through drawing three feet of water.’’ (Deposition of Arthur C. Clement, Abst., p]). 392-3.) “There were (phte 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 tops al)ove the water. We had no difficulty anywhere else in getting through. There was some difficulty there because tlie boulders were pretty thick and it was dif- ficult to run a boat through in the swift running water.” (Deposition of Henry H. Pohl, Abst., p. 444.) “I have taken skiffs up and down a great many times; I always got out and lifted it over the riffies. The riffies 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 the boat up and down over them that distance. There were spots where the boat would run along and then in spots there would be a deep place right along and you 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 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 hazard- ous 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.” (Deposition of George Ab- bott, Abst., p. 456.) ‘ ‘ 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 the Des Plaines Eiver gravel and rock were piled up by nature, washed there, so that they would constitute a riffle. The water runs through pretty deep sometimes.” (Deposi- tion of Lewis K. Stevens, for Defendant, Abst., p. 557.) ^Hf a boat were going down the Des Plaines River 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 Des Plaines River in times of high water from Malcolm mill. I went in a small boat, but I would go down backwards, so as to avoid those hard heads. I would sit right where I rowed from and turn my boat around, turning the bow down- wards — backwards, and row backwards. I would not row, I would let her go down with the current and avoid those stones.” (Deposition of Peter O’Brien, for Defendant, Abst., p. 611.) BOULDERS. ‘L\s to whether there was sufficient water to float these logs at all times I could not say. It is like any river, yon know, that is piled up tvith stones. ‘‘There were places there the stones would be piled up in :J5{) the siiininer time, pi'obably not as deep as the table, af)oiit two feet and a half; that is, on these riffles, of eoiirse. Tliere were holes that would take you over your head, five or six feet deep, seooped out, you know. There were plaees that were deeper, and the stones were washed^ and that would make it shallow, after the ordinary depth of water at those ydaees. As 1 grew up in years, that was all the way I could judge from, that there would be probably from eighteen inches to two feet or two and a half feet where we would want to cross.’’ (De- position of Samuel Gatons, Defendant’s Witness, Abst., pp. 484-5.) In the Des Plaines River gravel and rock were piled up by nature, ivashed there, so they would constitute a riffle. (Deft’s witness, L. K. Stevens, Abst., p. 557.) {The stones were trashed; i. e., they lay loose on the bottom and were brought down by ice and later washed still further down. They were not permanent.) ‘‘I don’t remember that I ever saw the river at a lower stage than two 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 Channahon. I forded the river a good many times. ‘G was better ac(piainted 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 })retty well down. Rafts and boats of various kinds had no difficulty in moving uj) and down the river.” ( De])osition, Jolm W. l^iv- lor, Abst., pp. 488-9.) “It must have been about 1844 that that man down the river who had the sawmill hired me and my father to tie u]) a lot of logs. AVe 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. Rock Run 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. AVe hauled the logs together and laid them side by side and fastened them together and made a raft. There must have been about 50 logs, I guess. Some were 3 and some were 34 feet thick. AVhen we took the logs down, the water in the river might have been 7 or 8 feet deep. 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. AVe crossed the river at Brandon’s bridge. Sometimes the water was about knee deep, I mean a foot and a half or 15 inches. It must have been 40 or 45 feet across. “T saw boats in Joliet going down the river at the old mill, where they changed routes; four or five young men in the boats, with tents, trunks and })()xes, wliere they liad' provisions and guns. The boat must have })een af)ont 20 feet, maybe 22, from one end to the other, on top, and about 4 feet wide. I don’t know how much (rater it n:ould take to carry a boat 2)0 feet long and 10 feet wide, with five tons on it. I was fishing on the river down at Brandon’s bridge, and wlien I got on the rihles I could hardly go with two in tlie boat. That was in tlie spring of tiie year, al)out April, |)loughing time. The boats I sair came from Chicarjo, they said; they went 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 crossed at Treat’s Island in threshing time, in Sep- tember; 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. We had a common wagon; tliey 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.” (Deposition, Xavier Munch, Abst., pp. 542-3-4.) ‘M 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 part of the year there was plenty of water, but there was a great deal of dry time. ‘H was able to wade this river at different times; as a gen- eral 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 today, I meant 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 the river is not navigal3le. When the water was very low in the river it would run from a foot and a half to two feet.” (Deposition, James Boyne, Defendant’s Wit- ness, Abst. pp. 546-7). DAMS AT treat’s ISLAND AND BEARD ’s DAM. ‘^Xohody told me about the dam at the mouth of the Des Plaines llivei’. There was not a dame there. That was iii 1834 and 1835. ‘‘The savunill at Treat’s Island was commenced in 1836 and finished in 1837. The grist mill was built shortly after- wards. I got that information from parties who knew. The Jesups told me that after the sawmill was built at Treat’s Island they didn’t have to go far for their lumber. “When I first came here in 1855, I saw the end of an old (lain on ilu' !)(‘s INainos River there at tlu^ nionlli; I ruiver heard of a dam there except one that was hiiilt in tli(‘ fall and went out the next spring, ddiat is a historical fact. I never could find out that there was any dam there that amount(*d to anything- and lasted long. There are some of tlie boulders of the foundation there still. 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 Mty 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 aqueduct and the mouth. (Deposition, Wni; W. Stevens, Abst. pp. 415-416). “He dug a dam across the Des Plaines a little above its junction with the Kankakee (which forms the Illinois), and commenced building a mill. But the next spring the Kankakee, which drains a great extent of country far to the east in Indiana, got on a rampage long before the Des Plaines, which rises much farther in the north, and coming down with its great volume of water and ice, dammed up the Des Plaines — turned its- current northward, and sent Johnny Beard’s dam, city, mill and all, a kiting up to Treat’s Island, where it de- posited the fragments. This wms the last we heard of ‘Kan- kakee City,’ until some of our citizens ‘struck ile’ there a few years since and sunk a well, — and sunk a little pile of money too.” (Extract, Woodruff’s History of Will County, Deposition, Wm. W. Stevens, Abst. pp. 405-406). ‘‘That dam must have been put in in 1886. 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 ivas telling me about this. I don’t know what the mill was. There was nothing ])ut a flume there when I com- menced boating in 1854, but the old dam is there, jmrt of it. The appearance of that old dam was there in ’54.” (Depo- sition of Defendant’s Witness, Enos Eield, Al)st. })]). 599-600). “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. That was not when I first came to this })art of the country. Father lived here over twenty years before we went down there. There was a ])lace 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 wars no remnant of an old mill that I ever saw. I do not know when I was first down there where Beard’s dam wais; I could not tell. I commenced boating down there along in the 60 ’s.” (Depo- sition, Urias Bowsers, Abst. p. 604). 362 NORMAN DAM. “ Molin Norman ])nilt a mill on this river’ — the reference is to tlie Des Plaines River — ‘at the head of an island which took his name, just above the penitentiary. Pie built a dam across one branch, which tlirew the current into the other end, in which he placed his wheel, while the shaft at the other connected with the mill gearing in a log mill.’ I remember visiting this mill in 1834.” (PPxtract, Woodruff’s History of Will County, p. 14, Deposition, Wm. W. Stevens, Ahst. p. 406.) “John Norman erected the first flouring mjill in Joliet * * * * About opposite the penitentiary there was an island in the Des Plaines heavily wooded, a romantic spot where the writer often went in search of flowers. At the head of the island, across one channel, Norman built a brush and gravel dam, which threw the current strong on 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 ma- chinery which ground the grain.” (Extract, Woodruff’s History of Will County, p. 251, Deposition, Wm. W. Stevens, Abst. p. 411). DAMS. “I remember dams in the river when I was a young boy. I do not think that I know of any prior to 1848, before the completion of the Illinois and Michigan Canal, but there is a dam right near Mr. Mills. (Treat’s Island). beard’s. “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 was a closed dam all the way across. “I do not remember when it was built. I would not say that I remembered the existence of that dam prior to 1848. I do not remember 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 was not a very big dam. There was no provision for any boats to go through there.” * * * * “I do not remember any other dam in the river ]n*ior to 1848, besides the Beard’s dam and Treat’s Island dam.” •> • > g; ) (1\\stiiiu)nv, (Jooi-^-e Aloxander, Dc'l'ondarit’s Witness, i\hst. p. 511). “Prior to 1848 there was a dam in the river here at Jeffer- son street in ffoliet. The old Malcolm dam down below here remained there until the Drainage Canal took it out, bought it of Adam and took it away. That is the dam that is spoken of as the Haven dam. I guess it is just south of tlie 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 afterwards. It was Norton’s mills. The Norman dam w^as situated on. the property Father and Goodspeed got of Norton afterwards. The Norman dam was in the township of Lock- port, about a mile above the prison, on what was the old Sanger farm. They were all in the river before 1848. (Testi- mony, Lewis K. Stevens, Defendant’s W^itness, Abst. pp. 550-1). Several of defendant’s witnesses testified to fences in the river. On cross-examination several of them explained that they re- ferred to fences extending partly into the river to keep the cattle from trespassing, but not across {e. g., Defendant’s witnesses, L. K. Stevens, Abst., p. 552; ^Alexander, Abst., p. 514; Whlliams, Abst., pp. 525-8; Gurney, Abst., p. 5J4. Defendant’s witness Adler said: “I do not recollect any fence built across the Des Plaines when I was a boy. * * * j put a fence across just a little above Brandon’s Bridge * * * some time in 1800 or 1866.” (Abst., p. 565.) Adler’s fence was thus described by Frhard (Abst., p. 163) : “I remember that my brother-in-law, Jacob Adler, of Jo- liet, fenced a pasture across the river and was com])elled to put gates across the Des Plaines just below the city limits of Joliet, and that in erecting such fence he was required to and did put in a swinging 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 pur])oses, and for that reason he was recpiired to use swinging gates so that the boats could go up and down the river.” Hicks testified to the same (Abst., p. 438) : DESCRIPTION OF EARLY DAMS. “The dam (at Treat’s Island, 1837) was built of logs, a log placed here and there and then slabs put back and stones piled up ou the bottom of those sla})s. They used some of those l)oulders.” (Ev. of Mills, Ahst., p. lOdG.) “I think this dam was ])ut iu in the same way as the other, with slabs put on it and scraped up underneath and jmt on top. The water used to pour over tlie remnant of the darn most of tile time. * * * The dam was gradually washed away until just the riffles wei*e left.” (Ev. of Eornelius, Ahst., pp. 1042-3.) FENCES. ‘^The eai'liest wire fence that f recollect about is 1845. Entil long after 1845, as a 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. Rods were stretched across, and swung on what was a swinging gate; tliey were usually small rods, almost approaching wire.” (Deposition of Defendant’s Witness, Franklin Collins, Ahst. p. 616). DEPTH. That was 42 feet deep in high water. That was before the open- ing of the deep cut. (Deposition, George Abbott, Ahst. p. 455). “I remember that just before the Chicago tire, there was a cutting made that opened the Chicago river 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. (Id. p. 455). There used to be a ford 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. We had to keep at the shallowest point to keep the irater from coining into the buggy. In low water in the summer season, I have been across there when it did not come in. There was a pond at Joe’s Island where you could cross when the water was low. (Id. 455). ^‘Q. When you were down there the depths of water were such it could not float any commerce? A. Well, take it be- tween Treat’s Island and Patterson’ s Island, it ran all the way from three or four feet, but it is as deep as 42 feet.” (Deposition, George Abbott, Abst. ]). 458). ‘‘Where I crossed there was a pretty swift current, l)ut I would not say there was much riffles there. The rapids were riirtlu'r up the sireaiu; it was at a places wli(u-(i llu^ wat(u- was running’ (inito rapidly. It must have been a shallow part where this ford was, heeanse we went through there with wagons very often. It would not more tlian cover front hubs.” (Deposition, dolin McCowan, Abst. p. ()22). “ Where I ci’ossed there was a pretty swift current, })nt I would not say there was much riffles there. The ra[)ids were further upstream; it was at a place wliere the water was lamning (]nite rapidly. It must liave ])een a shallow ])ai‘t where this ford was, because we went througli there witli wagons very often. It would not more than cover front liubs. I don’t know the difference between deep and shallow at that time.” (Deposition, Jolm McCowan, Defendant’s Witness, Abst. p. 622). Tlie head of Treat’s Island is (I have been thro’ there 200 times) the shallowest place we could go with a boat dravring 18 inches of water. (Deposition, George Albert Parrent, Abst. p. 448). “I am sixty-five years old. Live in Joliet, and have lived in Will County since 1853. Have been acquainted with the Des Plaines River continuously since that time. Have gone up it in boats. My last boat was 19 feet, 10 inches long, 17 feet on the water line, 5 foot beam. It had a 3-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 go down twice a year, in the spring and again in the fall. Prom 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 of Treat’s Island, was the shallowest i)laces. 1 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 shalloivest place lee could go up there with a hoot drawing eighteen inches of water. I once loaned two boats to a man on tlie island to haul his hag 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.” (Id, 448). “I swam horses through every mile from Lockport to the mouth to the Illinois River, where the Des Plaines and Kan- kakee go together — ^pretty near every mile to cross the river. “Prior to 1848 the })eople 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. “There was not any bridge in Joliet, until you struck Mor- 1 ‘is, and the bridge at Morris was over the Illinois river. 366 ‘M>(‘t\voeii Joliet and the niontli. I liave forded tlie river ))rior to 184S. 1 drove a hundred head of eattle across and swam the liorses 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, as 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. “ We 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 River. 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 com- Jiiercial purposes, the water must be 6 or 7 feet deep. “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 the deepest channel. 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 that 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 Whitemore’s bridge, it was a little deeper than at my place, two or three feet, or two and one half. “On the south branch the water would be as deep as 2 feet for four or five months of the year, this was before 1848, but 1 guess the north branch would not go that depth. The chan- nel 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 containing as much as 2 feet of water, for a period of five months of the year. (Depo- sition, George Alexander, Defendant’s Witness, pp. 507, 512, 516, 518 and 519). “As to whether it is possible for a row boat to come up Dcs Plaines 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 of these big hard heads, to get up when there was any kind of a current. They poled up :u\7 small boats I'rom 1l!(‘ moiilli ol’ tli(‘ I)(is PlaiiKiS liivco- to Malcolm’s mill, ^blicy poled up and worked with the oars. (Deposition. Detei' O’Id-ien, Delendani’s AVitness, Atisl. p. (HO). “1 think it was prior to 1840 that I forded the river at Loek})ort; t tliink it was in 1841, or ’42, somewhere; \ could not tell positively. I would not pretend to be accurate as to three or four years of a time there when it might have beeii. I forded it in company with my father, with a team of horses. I think in the deepest place, it was about 2 feet deep. I think I have a clear and distinct recollection today 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 foi* fording wmuld most likely be in the shallowest 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 eight or ten years, I usually crossed the river two or three times a year; that would be in the summer time, at the low stage of the water.” (Deposition, Franklin Collins, Defendant’s Wit- ness, pp. 615-616). ‘‘The depth of the water in the river in ordinary times, excluding the time of extreme freshets or floods, was rather slim for navigation purposes. That would be my opinion. I can’t see how boats could navigate it at that stage. “I boated on this canal a little. Four feet of water was all that our boats would draw, and go aground at that. I should say 4 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.” (Deposition, R. W. Killmer, Defend- ant’s Witness, pp. 626-7). Have found 18 inches to 2 feet of water in the fall of the year. (Deposition of Wm. W. Stevens, Abst. p. 411). Mr. James R. Flanders, 62 years old in 1908; used river all life. Exclusive of deep holes in Lake Joliet and extreme shallows at Treat’s Island, depth would be 3 to 4 feet. (Abst. p. 429). Heydecker — (on the Upper Des Plaines), Abst. 206, summer average 2-1 to 3 feet; fall average 2 to 21 feet. At the fords there might be places where you could get across without any water at all (215), some of the fords. Lorimer^ — 41 to 15 feet, except at rapids at mouth, wfliere it is no less than 3 feet, and rapids at Treat’s Island, where it is not less than 2 feet. (Abst. p. 196). FKET WET AND DRY SHOD. (/I'oss witlioiit wettiiiii^ 1‘eet abovo Ijoekport, below tbe Norton nil : “Before the time the Sanitary (vVxnal was liuilt, it was a good (leal shallower than it is now. Lots of riffles we could cross u]) above Lockport during the summer season without getting our feet wet. “I don’t know of any dams in tlie river above Lockport or at Lockport. “Q. Did you know of the Daggett mill at Lockport? (Objected to b}^ counsel for complainant as suggestive and savoring of cross-examination). “A. Why, certainly. AVe used to take our flour down there; take our wlieat down there to get it ground. “It was that Alill then. Dr. John F. Daggett. “They liad water-power there. Tlie water tliat they used there to run that mill looked to me as if it was alv^mys coming out of the canal from Norton’s mill. The water from the mill that he had in Lock|)ort, right down there, and they had a race. “It was lowest along in the fall, July, August and Septein- her. It 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 recol- lect, the riffles were ordinarily the shallowest places. The way it was, the shallowest places would be supposed to be right here (indicating), there would be a place, probably reaching so (indicating) 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. AAJiere the riffles were, was the lowest sheet of water. The other part, where the riffles were not, did not amount to much. It was in holes. I know some of the holes used to come up to the horses sides. That would be four or five feet deep. I do not know the river below Joliet. “Q. How deep water is necessary, in your judgment, for navigation 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 at this time that since the Sanitary District has put in the Drainage Channel, and throws the water in the Des Plaines Elver, the river now is about the same width as it used to he in the early days. I do not think that the amount of water is the same. I think it is a little deeper now, probably 8 or 10 inches.^’ (Deposition of Defendant’s AA^itness, S. J. AVilliams, Abst. pp. 524-6-7-8). (It is now four to six feet deep. Ten inches deducted will leave over three feet of depth). WEIT AT TREAT ISLAND. “Ill the suininor seasons wlien there was no fresluit, usually you eould walk across it on the riffles with your hoots on the stones. It just seeps through. That was before this water came down where they pumped it in. There was one i-iffle right above Brandon’s bridge. I suppose it was probably 100 or 200 feet. There was one right next to tlie lake there we used to go over with our boots on in low water; that is, just below Brandon’s bridge where they forded. “At some seasons of some years there would be very little water running over the riffles, and at other seasons it would flood the whole country. Sometimes they forded it when it was three feet deep, and occasionally even deeper than that. “I have seen a steamboat on the Mississippi where the current was very rapid. I have seen some very rapid cur- rents 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 think it was on the Missis- sippi. 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. THE layman’s idea OF DEPTH NEEDED FOR NAVIGATION. “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 liole 15 feet dee]). * * * When I said that this river iras not navigable, and is not today, I meant there is not 5 or h feet of ivater in it. There is at places. I would not lihe to consider a river navigable unless it had 4 or 5 feet of w'ater; 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.” (Defendant’s witness Boyne, Ahst., ]). 547.) “I think it is according to how heavy the trade is, how dee]) water is necessary for commercial traffic. I think if you have 8 or 10 feet, it would run a good skiff across it. / should thinic 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. (Depo- sition of Defendant’s AVitness, Jacob Adler, Abst. jip. 504- 500-507-508). “7 think for commercial navigation that there should not be less than 4 feet of ivater. I think you could not navigate a river with less than 4 feet. T say in going on the river there would not he enough water there, — I say it on tiiat account — :;7() not above 4 teef. I)ut wlien we liave six inelies, T liave seen the river when tliere was not more than h inelies, and I know it eoiild not he done in h inelies. I mean on the riffles all along the river. [ don’t mean literally ‘all along the river,’ — I mean where the boats would have to go through on the river. “In a good many i^laees, the water is 10 or 12 feet deep on this 1 ‘ivei*. In eeidain seasons on the riffles it goes down to (), or 8, or 10, or 12 inches, and where it don’t run at all. It runs underground, seeps through. * * * * the summer time when t went through there 1 crossed when the water would he about 18 inches dee]), — probably a foot to 18 inches. Lockport, I went there when it was not more than () inches deep over the ford; the two otlier places down there pe]*ha])s a little deeper, it might have been two feet 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.” (Deposition of Defendant’s Witness, Lewis K. Stevens, Abst. pp. 556-557). “There would be three months out of the year when there would be quite a good deal in the stream. It would be in 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 beloic icliere the old Malcolm dam used to he — you could go across on stones. That was only 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 row boats up the river over these riffles and rapids I have spoken of.” (Deposition of Defendant’s Witness, Jamies C. Keen, Al)st. p. 594). “In some places there was not more than a foot or so of water. Of course there were riffles and there were places with water 2 or 3 feet deep in deep places ; very many plans where you could walk right across by stepping on the stones without getting your shoes in the water. “Take it from Lockport, between Lockport and Iiomeo, there were more places you could walk across the river than there was where there was a depth of water, so you could not. This side of Lockport, there seemed to be a little more water. “I said I was able to cross the river there stepping from stone to stone. I refer to the low water times. There were times when the water would not be 6 inches deep. That would be (piite a dry time. In ordinary stages of irater, it iroiild he a foot or a foot and a half, find tliose were tlie shallow })Iaees ill the river, 'and in high water it would go iij) to 5 or t) j‘(‘et.” (Deposition of Defendant’s Witness, Win. S. Burt, Abst. jip. 571, 572, 575). “As to the depth of water in the river lietween ’41 and ’48, V eoiild wade across it without going over my hoots. “Witness. The normal and usual condition of the river upon these various rapids, as to depth of water, was that it would vary from som.e thing 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 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. A skiff that could go into shallow water, they could probably row along 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 skilfully 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 the shore. “At Treat’s Island, and at the islands below down and at the head of the lake, I have traded across without getting my feet wet. CORDELLING. “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. * * * * Wliat 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 Mississippi, not on the upper Mississippi, though. I 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 ])oats on the Mississippi that stuck so that they could not get u]) through the river on account of the current. I saw that at Pock 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 finally got over it. Going down the river where there is a rapid current with a stern-wheel boat, they could hold the boat back as well as they could ])ush it through a rapid current.” (Deposition of Defendant’s Wit- ness, Adam Comstock, Abst. pp. 58()-7-8-9-592). “There were a good many rocks and boulders in the river at tlie i)oint wliere these rapids were. As I say, I Imve walked aei'oss and not wet my feet at tliose places just below the mouth of Hickory Creek, in summer time. Sometimes there was not over twm inches of water in some of these rapids, and sometimes it would be more.” (Deposition Defendant’s Wit- ness, David Layton, Abst. p. 578). Yes. A. Well, they, the boats, might possibly go down some of the time, but not all the time. “You might possibly float it down most of the time, but you could not get up very well. Tt was not possible during any time of the summer season to navigate a boat up and down the river for commercial purposes. “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 ivater. “Q. And when you have spoken about it not being possible to have commercial navigation on this river for want of 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 ivoidd not make navigation. “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. Yees, sir.” (Deposition, John P. King, Defend- ant’s Witness, Abst. pp. 583-585). DEPTHS CURRENT FORDS BOULDEES. “Some places it was deeper than others. We 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 bottom 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. We pulled it over the worst places, and then got in again. We could not pole it up, it was too swift. We had to pull it up. The water was deep enough, but it was too swift, and there was some places there was rocks sticking up. We had a boat about five feet wide and 16 feet long, made of pine. We kept it for a good many years. There could four men, and quite a lot of stuff ride in it. We put the suff in it that we wanted to eat, that Ave needed while we were gone. “I have been down seven or eight times altogether. The last time I was doAvn there ivas over thirty years ago. I took one trip down there since the war; the others were all before the tear. “There a channel, — there Avas one ford at Ti*eat’s ‘; 7 ‘> o/ o Islniul niul ilireo Fords Ix'lwooii and t!u^ inoutl) oF tlio river. I was faiiiiliar with caudi oF tliein at that time, ddiat was a «’ 0 ()d while ago. 1 forded eacdi one, and the water at some phases was above your knees in depth. ^‘Idie first ford, taking tlie mouth of tlie Des Plaines 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. “I could not tell you how many times I have been at the mouth of the Des Plaines River; four or five times. We used to go 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.” (Deposition, Joseph Countryman, Complainant’s Witness, Abst., pp. 477-478-480). ^‘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.” (Deposition, PTrias Bowers, Defendant’s Witness, p. 602). Using a boat drawing 15 inches of water — Treat’s Island was the shallowest place — there used to be an old dam or some thing. 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 shalloiv place tvas not over 100 feet. (Deposition, Arthur C. Clement, Abst. p. 393). DEPTHS OF THE ILLINOIS. ‘‘In 1849, the time they were going to California, there were five steamboats loaded at Ottawa. They fetched u}) a hogshead of sugar, coffee, and such stuff, unloaded it there. There was one boat went to Marseilles. At that time there was a darn 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.” (Deposition, Knos Field, Abst. ]). 599). WIDTH. “When the river was at high flood, it spread over consider- able 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 never measured it. It might be four or five feet deep. F did not measure it at high time or low. (Deposition, David Layton, Defendant’s Witness, Abst. p. 580). “In extreme high water this river got to be half or three- 574 (/Kdiiers of (i mile wide in many places; I don’t renieinher how (leoj) it was at tliose times.” (Deposition. Franklin Follins, Defendant’s Witness, Abst. p. (ill)). Tile witness William JI. Zarley, a surveyor, testified that he measured tlie width of the river in each eliannel around Treat’s island during the trial. “The right-hand cdiannel at the ui)per end of the island is 527 feet wide. At the foot of the island it was 209.8 feet wide. At file liridge, or central part of the island, it was 145 feet. That is tiie width of the river. We considered the ])lace at the bridge the narrowest point. It was 145 feet in width. The left-hand channel at the head of the island was 270.0 feet, and at the foot of the island 185.8 feet, and at the narrowest point of the right-hand channel it is now, prob- ably, 15 or 20 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, the 185 feet represents about the normal flow, but the river was wider there yesterday than 185 feet. The narrowest place in the left-hand channel was 128 feet and that is about the normal condition of the river.” (Abst., p. 871.) ‘‘There is another little island in the right-hand channel, between the head of Treat’s Island and the narrowest point given in my statement. I did not measure the channel on either side of that little island.” (Abst., p. 872.) On the map of Treat’s Island in the Alarshall Survey of 1899, (Zarley Exhibit 1, Cooley Exhibit 25, Marshall Sheet 18), at the narrowest point on the east side of the small island, which shows about 75 feet at the point marked “M.” 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 “M. ” (Abst., p. 875.) DEPLETIONS DRA.INAGE DENUDATION. “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 boy- hood days. The water runs away from this swamp district into river much more rapidly than it used to. In the old days it run oft much more slowly. The body of water in the river in dry times is much less now since the tile were put in than it used U) i)e. lUd'oi'e the tilo w(M’o put in the watcu* was (l(‘(q)(;r than at tlie time 1 have deserihed. * * " ” (Dcijjo- sition, (leorge S. Wigiitman, At)st. p. 428). “ Prior to 18()() there used to be more water in the riven* in the summer time than there was after that for some yenirs. Tliat was because the farmers were draining their lands ai)ont that time everywliere 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 than it was after 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 not water running through the river at Lockport. Of course there w^as plenty of water in the spring and fall. (Deposition, Obadiah Hicks, Abst. p. 436). “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. W e 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. (Deposition, Francis Belz, Abst. p. 443). “Mount Joliet has been pretty near all carted away by being used for gravelling and clay for file drains. The mound is now pretty near level. They were carting it away in 1863. (Deposition, Arthur C. Clement, Abst. ]). 394). “There was a pretty good depth in some places, 34 to 4 feet. I couldn’t hardly say what it would avei*age all over; considerably more than it would average now. T have noticed the falling off, which I supposed was caused by the canal and the land being tiled out, that it drained it off so there ain’t so many feeders feeding into the river. The river itself has been used to feed the canal.” (Deposition, Frank Paddock, Abst. pp. 469-470). OPINIONS OF EXPERT WITNESSES. Among the expert witnesses, who testified on behalf of the State that in their opinion the Des Plaines was a navigable stream, were : Win. E. Tibbals, Pilot and IT. S. Steanilioat Inspector, Dubuque, Iowa, Abst. p. 634; Gov. 8. R. Van Sant, Pilot, Master and Head of Naviga- tion Companies, Minneapolis, Minn., Alist. p. 854; Win. H. Bing, Pilot and Master, Cincinnati, Ohio, Abst. ]). 663 ; Lyman K. (Vjoloy, Hydraulic Engineer, (diicago; Theodore L. l>urton, Cliaiianaii IJiver and irarbor Appro- priations (Committee, Cleveland and Wasliington; Cen. A. Mackenzie, IJ. S. Chief of Engineers, Wash- ington, I). C. Among the witnesses called by the defense, wlio testified that in tbeir opinion the Des Plaines Iiiver was not a navigable stream, were: the pilots: K. W. Bewley, Bowling Green, Ky., Abst. 1010 ; ft oh 11 McCaffrey, Jos. E. McCullough, Isaac W. Mason, N. P. Pryor, J. W. Rambo, W. H. AVhisler, Thos. T. Boyle, and Win. P. Gray. It is a familiar fact that, in the language of Mr. Justice Miller, 4 Dillon 448 : ‘‘Whenever the matter in contest involves an immense sum in value, and where the question turns mainly upon opinions of experts, there is no difficulty in introducing any amount on either side.’^ Mr. Woodson, in an article published in the “Kentucky Law Reporter, ’ ’ in February, 1882, says : “When expert testimony was first introduced it was re- garded with great respect. An expert when called as a wit- ness was received as the representative of the science of which he was professor, giving impartially his conclusions. Two conditions have combined to produce material changes in this relation. Few specialties are so small as not to be torn by factions, and often the smaller the specialty the bitterer and the more inflaming and destroying are the animosities by which these factions are possessed. Peculiarly is this the case in matters psychological, in which there is no hypothesis so monstrous that an expert cannot be found to serve it on the stand and to defend it with vehemence when off the stand. * * * * In the second place, the retaining of experts by a fee proportioned to the importance of their testimony is now, in cases in which they are required, as customary as the retaining of law^mrs. * * * * Hence, it is that, apart from the partisan temper more or less common to experts. tlioir iiti(H-aiU'(‘s, now ilial tli(‘y have, as n ('Jass, Ixk'oiik; llio relainod ai»(Mits of (ho parlios, have lost all judioial authority, and aro ontitlod only to ho tho woiglit whioh a sound and oan- tions oriiioisni would award to the testimony itself. (4 7\uieri- oaii Lawyer, p. 201). “As is well said hy Judge Cooley, in Fraser v. f/emison, 42 iMioh., 20(); testamentary eases are ever to l)e hrouglit to a conclusion there must he some limit to the reception of ex- pert evidence. * * * obtain such evidence is expen- sive, since desirable witnesses are not to he found in every community; hut an array may he had if the court will consent to their examination; and if legal controversies are to he determined by the preponderance of voices, wealth in all liti- gation in which expert evidence is important may prevail al- most, of course.’ ‘ ‘ Other noticeable abuses have grown up in connection with the introduction of this class of evidence, viz. : The great expense attending its use; the fact that courts permit such testimony to be introduced without limit, in many cases, as to the number of witnesses to be examined.” (4 Amer. Lawver, p. 203). In Springer v. Yerkes, the question arose against Yerkes and the West Chicago St. E. E. Tunnel Co., whether one of the tunnels' could be projected under the Chicago Elver and under the building on the shore without ruining the building. The Tunnel Company wanted a free hand in building its tunnel, and did not want the burden of upholding the building. The owner of the building, on the other hand, wanted not to be disturbed, and brought an injunction suit against the Tunnel Company. The opinions of engineers and architects were assembled in that case, pro and con, and Judge Tuley in sustaining the injunction, remarked that: “T/ie?/ stvore like insanity experts/^ (22 Chicago Legal News, ]). 256). The State in presenting its case deemed that the testimony of a few eminent and well known masters, pilots and engineers, of un- doubted authority in their callings, would be sufficient to corro- borate the evidence from early history and from the legislative policy of the State, and made no attempt to amass any great body of such evidence. Again, the State was hampered by lack of funds to expend in such a matter. It, therefore, called on this point only the experts named above, and submitted to tliein in the :,78 (‘oui't room the liypotlietic'al ([uestion, giving the })rin(*it)al j)liy.sical ('liara('teristi('s of tlie river, and took their o})inions tliereon. The defendant, on the other hand, ai)i)arently not being liani})- ered by sneh lack of ineaiiKS, ealled twiee as many witnesses, took them in an antomol)ile for a ride along tlie river bank and crossed one or more of the })ridges, and then hurried them into the coui't room to say tliat tliey had seen the river and knew it was not navi- gn])le. One of the defendant’s experts, for example, Isaac W. Mason, arrived in Joliet on the Alton train one morning, there took a carriage and drove, he said, ‘Jo the site of the dam, and six oi* seven miles to Minooka, where I took a train for Chicago.” lie arrived in Chicago before noon and went directly to the court room and testified before the noon recess. (Record pp. 4208-4213). Obviously his inspection of the river must have been of the most cursory character. This particular witness testified that his ex- perience on boats was as second clerk and captain, selling tickets, collecting money and attending to freight contracts; that he never had a pilot’s license, and his duties had nothing to do with navi- gating a boat, and after leaving the business of being freight agent, he hecame city auditor, sheritf, and city and county marshall of St. Louis. He testified to navigating the Rock Island Rapids at a current of ten or eleven miles an hour, and the Falls of the Ohio through a fall of 32 feet in two miles, at a current of eight miles an hour; and added that it was 43 years since he quit running over the Rapids of the Mississippi, and that there were no locks and dams on the Cumberland, Tennessee, or Allegheny. The only real value of such testimony is to show that greater difficulties than any to be foundHn the Des Plaines have in fact been successfully navigated for many years. Calling such a wit- ness was a reckless blunder on the part of the defendant, who with great labor developed that in high water the slopes of the Ohio and the Mississippi were flattened out and obliterated by the high water, and that was the general phenomenon on such slopes. For the same reason, the high water of the Des Plaines, reach- ing to floods of 840,000 cubic feet of water per minute, aside from a similar amount from the Sanitary Channel, would flatten out and obliterate the slopes of the Des Plaines. And with the abundant flood from the Sanitary District Channel, ilio Dos Plaiiios may bo said to bo in a (constant state of hi^Ii wator, and its slo])es constantly o])literatod. Tlio dofondant supplemented the testimony of its experts by numerous old settlei-s, wlio testified with ecjual positiveness that in tlieir opinion the Des Plaines was not navigable. Their testi- mony reminds one forcibly of the testimony for tlie defendant in Reg. V. Orton. Mr. J. T. Morse says of this evidence: ^^Dr. Kenealy began his evidence for the defense by mar- shalling a perfect host of witnesses from M^apping, who over- flowed the court room and Westminster Hall, that most spa- cious of ante-rooms, in abundance, like the locusts of Egypt. They were the old acquaintances of Arthur Orton, and con- stituted a horde much less distinguished, if more numerous, than the gentlemen and ladies who had appeared as the friends of the lost heir of Tichborne Park. * * * present this evidence in detail, would be to set before the reader a task almost as fatiguing to his patience as Homer’s Catalogue of the Ships.’ It must be treated generally. ‘^The witnesses were all introduced for the purpose of swearing that the defendant was not, in their opinion, the Arthur Orton whom, in days long past, they had seen and known, more or less intimately, at Wapping. This assertion they all gallantly made, pouring in interminable succession for many days through the witness box. They were, of course, for the most part, ignorant persons, whose beliefs and judg- ments, individually considered, were not very impressive or convincing. Beyond this, too, they were far from agreeing with each other in all particulars, even in all essential particn- lars.” (‘‘Famous Trials, The Tichborne Claimant,” by J. T. Morse, Jr., pp. 94-5.) QUALIFICATIONS OF EXPERTS FOR COMPLAINANT. William R. Tihhals {Abst. p. 634, et seq.). Seventy-six years old, residence, Dubuque, Iowa, since March, 1857. Navigated the Mississippi since 1854. Government license as pilot received April, 1855. Has navigated the Mississippi, the St. Croix, the Iowa, the Des Moines, the AVis- consin, and the Chippewa. United States Supervising Inspector of Steam Vessels appointed by President Cleveland for the district of the Mississippi Kiver and its tributaries from Keokuk, Iowa, to St. Paul ; and Lake Sui)cri()r ])()i-(lei-iiig WLscoiisiii. Was eonrieeted witli tlie United States Uaigineer’s Office at Eock Island for seven years. This cliapter of experience and qualification is of the very best. It covei’s an experience of 54 years of actual navigation through the upper Mississippi, with its upper rapids, extending from Eock Island to LeClaire, and the Des Moines Eapids at the mouth of the Des Moines Eiver, its shallow waters in Minnesota, and the whole series of narrow tributaries, — which are streams of the same class as the Des Plaines Eiver. He describes boats that draw 12 inches of water, 10 inches of water, 28 to 30 inches of water, 2| to 4 feet of water; and states that he has steamboated on the Mississippi on 14 inches of water, and has navigated through the Moline chain of rapids, with a current of 9 miles an hour, before there was any improvement of the stream. He is asked the following ciuestion: ‘‘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, exclusive 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 imper- ceptible 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 at two 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 was somewhat deeper, but not up to the large depth, I will ask you to state whether or not, in your judgment as a navigator, that stream would be a navigable stream? ‘H have here a map which has already been introduced in evidence, and one which is a certified copy of the Government record, and this is the one that has no annotations of any kind upon it, but just as it comes from the Government, and it is drawn on the standard Government scale of two inches to the mile, and the stream is such as is shown you on the ma]) before you, which may be called McCullougli Exhibit I, and which is drawn on the scale of two inches to the mile; and the particular part of the stream vre are interested in is from Joliet to the mouth of the river, and the bends are such as are shown on tliis ]Vl(*'(/ull()iij>irs Kxliihit, which is dj-awii lijion the scale of two inches to the mile. ‘^The Court. You may state, after haviriij^ lieard tlie objec- tion of counsel, whether you are competent on the hypothetical question as put to you by Mr. Starr, and without further in- formation hearing on the point, suggested in the objection, to answer the question whether such a river as stated is or is not navigable. A. As Mr. Starr asks the question, I would say yes. “The Court. That is you would say that any river which answers the description given by Mr. Starr, irrespective of anything 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.’’ (Abst. pp. 637, 638.) Captain William H. Bing {Ah si. p. 663, et seq.). Home, Cincinnati, Ohio. Steamboat captain and pilot. Engaged in that business since 1873. Followed it continuously to close of navigation last year. Licensed by the Government as a pilot on the Ohio and its tributaries. Has navigated the Ohio, the Great Kanawha, the Big Sandy Biver and the Kentucky. Has navigated the Ohio on 12 inches of water in the deepest part of its shoal places. Every summer it is about as low as three feet, and sometimes under. The Kanawha varies from 10 inches to 3 feet at low water, and from 15 to 20 feet at high water. It got as low as six inches at Charleston, lY. Va., on the gauge. Has navigated by barges that draw from (> to 10 inches in low water. Both Captain Bing and Captain Tibbals describe the operations of cordelling: by letting out an anchor with a line, and winding up a capstan on the boat, and double tripping with half the load, to get up the difficult places. Captain Bing is asked the same (luestion as Captain Tibbals with the following added: “Q. I will add to that, that you may include in the condi- tions, 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 60 feet feet; that the area of the imper- ceptible current, 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 curr’ent is very sluggisli foi* a])ont a mile, where it goes around a 1 ‘atlier huge l)en(l and wliei'e the river is from tliree to six hundred feet wide as it goes around tlie bend; that the swift current of seven and a lialf miles is confined to an area not exceeding a mile or a little more, less than two miles in length.” ''A. '[ would say that it would be a navigable stream.” (Al)st., p. 666.) He was asked wliether it would l)e navigable if it had a fall of 90 feet in 18 miles, and he replied that there would have to be im- provements made on it. (Abst., p. 673.) The only way in which that suggestion can be made applicable is by including the distance above the Dam No. 1 to Lockport to get the 90 feet fall, and there 44 1/2 feet of fall have been taken out by the Sanitary District lock. The improvements which Captain Bing thought would be necessary have been made. Gov. Samuel R. Van Sant, Minrieapolis, Minn. (Abst., p. 854, et seq.). Hon. S. R. V an Sant has been employed on the Mississippi River since 1857, and was continuously in the business of piloting, hand- ling and operating steamboats (barring four years in the Civil War). Is now connected with the Van Sant Navigation Company and the Carnival City Packet Company, which own and operate ten steamboats on the Mississippi at this time. His companies have owned forty boats on the river. Has made the trip on the Missis- sippi a great many times, 500 to 1,000 trips (20 to 25 trips a season for the 46 years). His father kept a boat yard, and he worked in the manufacture and repair of steamboats froni boyhood. 5Vas Governor of Minnesota from 1900 to 1905. The Mississippi loses 4 1/2 months’ time in winter and 2 months for low water in summer, leaving 5 1/2 months for navigation, — varying from 5 to 7 in different seasons. In exceptional years, like 1864, navigation is entirely suspended for the whole season. He describes a list of a dozen specific boats, dravring from 12 to 30 inches of water, and carrying loads of from 20 to 50 tons. OQO tJOO I[o is asked the same (]iiesti()n as is f)iit to ()a|)iain IVin^, witii tlie following addition and answer: ‘H\>UNSEn FOR (\)MpriAiNANT. I wilNaceopt the last sug- gestion as to the (|nestion and put it up a stream answering these (pialifications, if it would l)e such that boats carrying freight would he 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 yon believe you have sufficient data to give an intelligent answer to that question! “A. I think I have. “The Court. Yon may answer it. “A, In my judgment it could. “Counsel for Defendant. Then I will ask the further question separately, in your judgment would or would not the stream possessing these qualifications be a navigable stream ! “Counsel for Defendant. That is objected to. “The Court. I sustain that objection.” (Abst., p. 864.) Upon cross-examination, he was asked questions about the fall of the river above Dam No. 1, which was taken out by the Sanitary District lock, and a variety of other questions, as follows: “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 knov/ing the width of the channel but knowing the velocity, T would be able to state whether or not the river at that point was navigable. If T know the depth of the water in warping, I would carry the 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 warjiing is as fol- lows: They steer the boat just the same. They use her wheels but this helps the boat over. Her ]>ower does not quite overcome tlie current 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 described in the hypo- thetical question used by Mr. vStarr, can be used for boats, I refer to light draft boats, I should judge 125 to 30 or 40 feet in length. For useful commerce, the dimension of a boat would depend upon the commerce and the nature 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 ver}^ little upper works, built with very light draft fi'oin tlio very start, you (*au make lier so tliat she will draw uot to exeeed, say, about twelve inches of water; about one hundred and forty feet long'; thirty feet wide, 2() to 30. Sixty-foot river had boulders sticking up, so that a canoe only can dodge them, why it could not be navigable. 1 would say that in my judgment. That is answering the ques- tion on those suppositions. That is the point right there. If those boulders are sticking up there,, so that it takes a canoe to dodge them, it would not be navigable for a steamboat. 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. Well, are the boulders there? ‘‘Q. Yes, sir; they are there. A. But I am asking a ques- tion. Yes, sir; they are there. People walk over them dry- shod in summer. But, assuming that they were not there and that river is sixty feet wide and you have a fall of 2.78 feet per thousand feet. Can you take a steamboat by them, in its natural condition? “A. I could if the water was deep enough. I said, fifteen inches of water. ^‘A. I think it could be done. For the purposes of profitable commerce? Oh, yes, sir. On 15 inches of water? Oh, yes, sir. On such a boat as you have described? ^ ^ A. On such a boat as I have described. 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 accord- ing to the water. I have always done that. * -* # * * * * * 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 affording 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?’^ ^ ^ ^ ^ ^ ^^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 I :5Hr) 01 ' nothing- at the liead to ('oine down tli(‘ i-iv(*r, no I'rcn^lit oi* no ])oo|)lo, it ■would not ])ay to navigate the river. “Assnining that at this particndar point whei'e tin* tall was 0.5 feet in 2,000 feet, that within that 2,000 feet there; was a very sharp bend of the river, as to liow that would aff(;(;t the; ability to bring a boat np in that veloenty, it wonld make it more difficult, 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 ])oint like that I have described, in such a boat as you have de- scribed, we would have to do 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 safelv.” (Abst., pp. 865, 866, 868, 869, 870.) Theodore E. Burton {Ahst., p. 182, et seq.). “My age is 56, residence, Cleveland; occupation, attorney. “I am a member of Congress; I have been a member of Congress consecutively since 1895, and also from 1889 to 1891 (25 years). Since 1895 I have been assigned to the River and Harbor Committee, and have been chairman of that commit- tee since December, 1898. I have made a study of the rivers and harbors of the United States necessarily in connection with my position, in preparation of river and harbor bills and hearings, and have given considerable amount of attention here at Washington. I have visited most of the leading rivers of the United States and a considei*able number of the niinoi- streams. “I was in Europe for four months at one time, investigating river navigation. I wmnt to Europe especially to study water transportation. 1 have been identified for about a year past with the Inland Waterways Commission, appointed by the President, consisting of nine members. 1 w^as chairman of the Commission, made so by direction of the President, and also by the formal confirmation of the niembers. “I have made a considerable study and examination of tlie rivers and harbors and means of transportation in the United States. “They would include a pretty large list of rivers: The Penobscot, Merrimac, Hudson, Delaware, Patabsco and Janies, the Inland MMter Route on the east side of North Ckirolina, the Congaree, Santee and MTiteree in South Carolina, the Savannah, the St. Johns, the Alabama, the Coosa, the Black Warrior, the Warrior, the Tennessee, the Cumberland, the Atchafalaya, the Sabine, the Neelies, the Trinity, the Brazos; and, of course, the larger rivers, the Ohio, and tlie Mississijipi ; and on the Pacific Coast, the San Joaquin, and the Sacra- mento, the Columbia and the Snake. ‘M liavo visitoA those (lifrorent rivers with a view to their examination and study witli refereru'e to their improvement hy tlie (lovernment, and for a study of tlie general problems, dliere are some Jiiinor rivers which I have visited and which 1 have not mentioned in the list just given. have seen the J)es Plaines Kiver in Illinois, though I have never l)een on a boat on it. \ have seen it at a place where the Drainage 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. ^‘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 constitute 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 perhaps wandering a little — made a comparison with minor railroads. There are some streams that are under improve- ment and profitably navigated that do not carry more than ten thousand tons a year, or even less. ‘ ‘ Whether a river, which was capable of floating a boat that would carry a bigger load of freight than could successfully be hauled by wagon, was navigable — depends somewhat upon the topography of the country and the course. Generally speaking, I would say that the capability for carrying a load in competition 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 navi- gated 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 order to be a navigable waterway ; partly because detached reaches may be available for navigation and the ob- stacles may be removed ; partly because you must take a river as an entirety, and in maintaining the regimen or the flow it is necessary to control the whole river, including those por- tions in which there are obstacles by reason of rapids, as well as i.iioso portions wliero ilio sIo[)e ol' tlio r‘ivor is suoli as to roiider the navigatioa of the river diffieiilt or irnpossi[)le. “It* obstructions appear in parts ol* a river f)y means of boulders in tlie water, or rapids in the river, those facts do not destroy the navigable character of the river; particularly because capability 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 treatment. ^‘The Columbia liiver is a navigable river. There is a por- tion of that river, relatively midway in its navigable part, called ^The Dalles,’ through which boats do not pretend to pass. There is another obstacle between ‘The Dalles’ and the mouth of the Willamette, and then at Priest Papids and a number of other places there are obstacles in the way of rap- ids. Obstacles such as the ones just mentioned do not take from a river its navigable character. Elvers are profitably navigated on a draft of 20 inches or even less. “The Tar Eiver in North Carolina has only 20 inches. Then on the rivers in the cotton country, between the Mississippi and the Atlantic, there are boats which carry cotton and other commodities profitably on a draft of sixteen inches, though the rivers at certain seasons have greater depth and the boats can draw more than that. Take, for instance, the Ocmulgee, 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. The Tennes'see, from Chatta- nooga to Knoxville, at times does not have a depth of more than eighteen inches, and boats occasionally are used on that river on a draft of not more than eighteen or even sixteen inches. ******* “As to the Des Plaines, I take the question as this: A min- imum depth of eighteen inches for at least three months of the year, and a width varying from sixty feet to a (piarter of a mile. I would say it is navigable. “Interrogatory 34: If in the Des Plaines River 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 are stones or boulders in the river’s course is, well, there are quite a number of ways; one is to take out the rocks or the ()l)sta(*les. ^riiat, however, frecjuently lets out tlie pool above, and while it does away with tlie ra|)ids at the obstruction cre- ated by the i-ocks, it diniiiiishes the level of the river in a por- tion that is navigat)le. Of course, if it is a mere detached ro(‘k, the way is to pick it out, blast it, or remove it in some other way; anothei* is by tlie construction of what are called ‘wing- dams’ going out at i*ight angles to the bank at the side to narrow the channel of tlie river. That does not necessarily overcome the rapiids. Still another way and the one that is most effective, is the construction of locks and dams. \ would say that the imiirovements of such rivers as have been im- proved have rendered them more valuable as navigable streams. Of course there are a great many rivers which have not been ini})roved by the United States (xovernment. If you take all the streams which are styled rivers, a majority of them have not been improved. Nearly all the rivers of the United States tiiat are actually being navigated have been improved in one or more of the methods I have suggested. I did not stay, I should say here, all the methods of improvement. Other ways of inpiroving are by wing dams, longitudinal dams and dredging. These are the principal means employed. Of course, where it is a great alluvial stream, the protection by revetment to prevent the washing out and where there are great floods, levees or other methods. The matter of improve- ments 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 primarily submitted to the Committee of the House of Representatives, of which I am the chairman. Cross Exam in atl on. “Q. Suppose a river cannot be used for profitable com- merce in competition with other means of transportation un- less improved largely throughout its length, would you con- sider that to be a navigable river! ‘U\. 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 -1 miles here, then there is an obstacle; then 2 miles, then there is another obstacle. Now, these separate stretches or reaches of river can no doubt be navigated, and that makes it a navigable stream ; but I would make the defini- tion 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 conditions of the rivers, their navigability, the uses to which they are applied, with the legal proposition or a question of fact. Under my defini- :J89 tion all streams are not praeti(*ally navigahU; sti’earns; unless it promises retiirns for tlie money invested in its improvement, I should not say that river was a navigable one. It is true that is a praetieal view to take of it. ******* Interrogatory 43rd: Well, suppose the Des Plaines Piver, of whieli Mr. Reeves has asked you, is 18 miles long from Lockport to its mo'uth, and that it would take at least three locks and dams to make that river capable 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 purposes of transporta- tion and by three ti'unk railways — ^would you say that was a navigable stream? MHiat is the depth of pools that would be created! ^WouNSEL FOR DEFENDANT. That would be somewhere be- tween twelve and fourteen feet. I would say that would be navigable, most certainly, think it would be profitable to do that work for the purpose of navigation. There are rivers in Prance, 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 railway, 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 consideralhe figure, and navigation would be a profitable means of transportation. Of course the rate on a railroad would be very much higher per ton mile for such a distance than it would l)e on a river — both the actual rate charged and the actual expense. Whether or not this river in its natural state or in its ])resent state, is capable of navigation for the purpose of useful commerce, would de- pend somewhat on the slope and the length of the pools which are not impeded by rapids. Tt has not been stated how long those pools are. The facts have not l)een sufficiently stated to me to ex])ress any o])inion as to whether the river is, or is not navigable; I would say if there were three obstacles in a dis- tance of 18 miles, it would de})end on the length of the rapids, or extent of the obstacles at those places, but there would be, at any rate, navigation on the detached |)ortions, if the ob- structions by rapids or other obstacles, are not unusually long. It would be capable of navigation over the portions where the obstacles do not prevent. An ordinary rapid is not an insup- erable ])reveDtion to navigation. The rule as laid down in the text books of seventy-five years ago, was that al)out 1 1/4 feet per mile was the maximum consistent with convenient naviga- iioii, l)iit siii(!e then inetliods liave l)een devised to overcome rapids, l^'ake it at tlie iron gates of the Danube — there the descent is considerably more than tliat. Just above the boun- dary line of ITiingaria and Houmania, Servia being on the opi)osite side, Hnngaria taking the responsibility and taking the lead, they liave fixed post and a drum on the boat, and wire rope that hauls the boat by power in itself over the rap- ids. 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 Des Plaines Kiver, my impression is for the whole river, a descent of 100 ft. in 60 miles. “Interrogatory 53rd: Now, Mr. Burton, assuming that be- tween Jackson Street and McDonough Street in the City of Joliet, a distanct 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. «=#***** “Interrogatory 59th: "Well, now, I will ask you another hypothetical question. There is a fall between Lockport and Brandon’s Bridge, a distance of 7 miles, of 34 ft., or about 5 ft. per mile. Then, there is about 5,000 ft. between Jack- son Street and McDbnough Street, with a 9 foot fall in that 5,000 ft. Then from McDonough Street to Brandon’s Bridge, there is a fall of 3.75 ft. per 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, where this dam of the Economy Light & Power Company is in process 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 as to the capa- bility of that river being navigated in its present state, from the mouth to Lockport, for the purpose of useful commerce! “A. AVell, it would be very questionable whether it :v.)\ would 1)0 navigatod for that whole distaiu'o. 11* I may ox})ross ail opinion, that would not take away the (jiiality of the stream as a iiavigable stream, if ])art of the way there are jiools that are readily navi gable, and there is a terminal point lieyond the end of the yiool that by treatment eould be made navigable — it is still a navigable stream for the whole distance. mean the Federal Government would have jurisdiction over it, particularly because it would he necessary to control that upper 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 portion, from which the water means comes to furnish the normal depth below, the jurisdiction would be futile. You presented several propositions relating to different portions of the streams, different conditions in these 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 ]:)nrposes of useful navigation would depend on two or three things; first, the depth of the stream; 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 slo})e as mnch as 8 or 10 feet, boats are drawn n}) stream by those devices which I have suggested — some point to which a ro])e oi- chain can be attached and a drum with power on the l)oat. Well, the Fib 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. It is not a very difficult task to go Tip a slope which is only a foot to a mile. There are some very steep slopes in the itlione Kiver. I am not positive as to the slopes of those European rivers, but I am quite positive that 4 foot slopes can be used for navigable purposes, for open water navigation treated per- haps l)y lateral dams or dikes. These, however, increase the difficulty unless they are located at a ])lace 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 to 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 navigation in those rivers. would not 1)0 ^Toatoi* than 4 foot. Take the Allegheny — that has 2.2 feet over long distanee, and in some j)laces more and in som(‘ places less, of (*ourse, 2 to 2 feet to the mile. In the upper portion of tlie Monongahela, that is, that portion that is in West Virginia, it is about 2 feet. Tliat is the average des('ent, of ('ourse. There, as in the other ease, there is sometimes more and sometimes less. As to knowing any river where navigation is actually carried on and where the slope is more tlian 4 feet to tlie mile, wliy, for down stream navigation, the St. Lawrence at the rapids must ‘he more than that. I am not ])ositive, however, as to the figures. Fn some poidions of the Tennessee, between Chattanooga and Kiver- ton, it must ])e more than 4 feet at different stretches of water. Commerce is carried on ui) 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 Euro- pean rivers. ^^Interrogatory 72nd: Assuming that in the Des Plaines Liver, from Lockport to its mouth, a distance of about 18 miles, there is 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 present state, without im- provement, 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 char- acter to the vdiole. “Some of tliese rapids to which I have called your atten- tion, extend 2 or 3 miles in lengtli ; 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 5.5 feet for 2,000 feet. That would be over 10 feet }mr 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 ob- stacles, was fairly straight, that would not do away with the possibility of going through it with boats. The other por- tions that you mention is 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 impossible. 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 :j93 wliere it is 8 foot to tlio niilo, j)r()l)ul)ly in a poi-tion of it it will 1)0 at a rate that you ('all it; at anotlioi’ as niuoJi as 12, and ill aiiotlior })i‘obal)ly (i. Well, siif)pose a strotoli of a iriilo or 1/2 mile in tlio rivoi*, that is probably iiniforiii of 8 loch to the mile; to carry on nsefnl ('onnnor(*e would be expensive, but if tliere is a i)art of the stream wliicli above the pool conhl be rc^'adily navigated, that would not in my opinion take away the navigability of the stream. ‘‘Interrogatory 83rd: Would yon not say, Mr. Burton, that the fact that all those dams were constructed in the river, is persuasive evidence that the stream was not capable of navi- gation for useful commerce? A. No, T would not decidedly. T have known instances in which persons, even by Acts of Congress, have managed to sneak in a dam where they ought to be barred from doing so. I remember one instance in which it was done in the Tennessee Eiver, and the next winter the people who were advocating it, wanted it repealed.” (Abst., pp. 182-194.) It will be noted here that this eminent expert used the (lualifi- cation of “profitable commerce” in the definition which he, as chairman of the River and Harbor Committee, has employed in testing the numerous schemes which have been brought before his committee for improving streams. He said in particular: “You must take into account that I looh 'upon it from the stand- point of the benefits derived from improvements, the expense and difficulty of improvement/^ (Abst., ]). 188.) This is a most wholesome standard to he enpiloyed by the chair- man of the River and Harbor A])])ropriations (k)mmittee in ])ro- teeting the public treasure against exti'avagant demands. The firmness with which Chairman Burton lias ap})lied tliis test, and defeated such demands and confined the ex])enditure of ])ublic money to 'profitable cliannels, during the ten years and upwards that he has been chairman of the committee, has earned him much honorable obli(jUv from the (‘amp followei's and log rollers. This test is one more sevei'e and ])articular than that of the law, and he repeatedly stated that: “My experience has been so combined, so made up of study of actual [ihysical conditions of the rivers, their navigability, the uses to which they are ajiplied, with the legal proposition — it is pretty difficult to say whether I regard that as a legal proposition or a (piestion of fact.” (Abst., p. 187.) The State welcomed the testimony of so eminent an authority. even when applying- a standard higher than that recjuired by the law, and found liis testimony sustaining the navigability of this river, even when judged by this more rigid standard. WILLIAM LORIMEK. William Lorinier is also a member of the Rivers and Harbors Committee, and for several years has made close study of the waterways of the country, and of Illinois and the Des Plaines River in particular. He said: “I am acquainted with the Des Plaines River. I have given it study for about 12 years. I have known it for 3^ years. It is a navigable stream. (Abst., p. 195.) 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 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 in my personal experience. From the study and investigation that I have had of the navigable waters of the United States, in connection with my official duties, I have known of navigation on the Tennessee River, 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 Rivers and Har- bors, in the course of my work as a member of the Com- mittee on Rivers and Harbors of Congress, the fact that a portion of a river contains rapids or boulders, does not in any sense destroy the navigable character of the river. If a river has sufficient 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. ^Ht 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 of Wheeling, and I know that between the Illinois River and Lockport, there is a minimum depth be- tween the low standard stages of the river, certified to by the engineers that made tlie survey, over the rapids to the mouth of the river, of not less than 3 feet of water, and over the i‘a[)i(is at ^Freat’s Island, of not less than 2 feed of water, and tliat only for a distaiu^e of ahont 500 feet betwe(ni those two rapids, there is a, de})tli of water all the way from 4^ feet to 15 feet. Jleyond Treat’s Island, n[) to and tliron^^h Lake Joliet, tliere 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 irt some places. The nearest point, according to my recollec-r tion, is round Treat’s Island, what might be calied 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 engines, 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 sur- vey for the 14 foot waterway.” * * * ‘L\s to supposing 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 River, and there is no doubt in my mind that you can take boats up the Desplaines from Dresden Heights. Suppose the slope to be 8 feet to the mile, as shown by this report of the Engineei's of the United States (Government, boats for the purpose of profitable navigation could be run over thosi rapids by cordelling, without any doubt. That is, they could be so expiipped that they could be built u]) conveniently 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 y)^ii’Pose and operate profitably. I have never run a boat line, but from what I know of rail rates and wate’ rates, I have no doubt that goods could be transported from Si. Louis to Joliet by water, and (mrdelling over those rapids that we are discussing, for less than you can take it there by rail, and therefore it is ])rofitable. As to how you would get over the dam at Marseilles, the Illinois River is susceptible of im|)rovement, so you could build a lock there and carry it out through the lock. The Illinois River is under im})rove- ment. If it were improved at such points as needed improve- ment, of which Marseilles is one, boats might be run up tlie river. For easy navigation, there should be improvement all the way up the Illinois and the Desplaines Rivers to Joliet. Boats could not profitably, for a commercial ])urpose, in the condition of things as they now exist, without any improve- ment, be run from St. Louis to Joliet. There would have to l)e some iniprovemeiit in tlie Illinois River. Well, now yon put the (piestion wlietiier oi- not it would be ])i*ofita})le, and 1 (‘an only answer that, based again on the statement I made a little wliile ago, on the difference between the railroad and th(‘ water rates. “If the Illinois River w^ei'e improved, so as to make it pos- sible for boats drawing 24- inches of water, to pass tlirougli the river into the Desplaines River, 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 tlie Desplaines River up to floliet now; well, to the foot of the rapids at Joliet, that is, to Brandon’s Bridge, that neighborhood. As to a boat draw- ing 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, J feet. Now, if it is admitted that a boat can be cordelled over the ra])ids, 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 4| feet to 17 feet in the sec- ond 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 41 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. “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 say 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 eloliet, no one will dispute that. As to whether, if a line of boats were constructed between these two points, it will be profitable and useful to the community, that would depend al- together 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, ai\d 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 we did that was because w^e could handle the rock cheaper that way than any method we could devise, so that for a dis- tance of 6 miles, under the same conditions, it would be profit- able. It was profitable to us, and that is why we did it. From my own personal knowledge of the river, I would say that the river was capable of beiim’ used for commercial ]mr])Oses. I know that you can use the Desplaines River from the Joliet & Eastern R. R., for a boat drawing 9 feet of water down to the (hty of Joliet, and Foi- the purposes of 1 ransportinx store* ri'oin a]iy\vli(‘re aloiii^ up thei’e iu the uei^iihoi-hood of Lo(;k- })oi‘l, down through tire l)i*aiuage (hiiial, into the I )(isplaiu(is River, to unload at Joliet. Thei'e is no douht of its heirp^ prolitable to transport stone down that way. The woi-k I was doing when I used that stone, was lowering the hottoru of tlu^ Desplaines Kiver for the Sanitary I)istri('t.” “As a ineinher of the Rivers and Harirors Committee, and on aeeonnt of tlie work tliat I have been doing, and tlie searches that I have made for information, I have come to the opinion with reference to waterways, and that all mem- bers of the committee that I have known, have thought a waterway 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 waterway of the United States, and I know that a part of the Desplaines River, from the end of the Sanitarv 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 con- siderable commerce through the Desplaines River, into the Illinois and Michigan Canal, and connect with the Illinois River at La Salle.” (Abst., pp. 195-6-7-8-9, 200, 202-3.) Lyman E. Cooley (Ahst., p. 794, et seq.). We speak here of Mr. Cooley’s (]ualifications to give an expert opinion upon the navigability of the river. His training and ex- perience were as follow^s: “Graduated as civil engineer, Rensselaer, Polytechnic, Troy, 1874, 1874-77 Professor Civil Engineering Northwest- ern University and Associate Editor Engineering News. “1878, Principal Assistant Engineer constructing railway bridge C. & A. Ry., across the Mississiiipi River, Glasgow, Missouri, 1878-84, U. S. Engineer on improvement of western rivers. “Resident Engineer on improvement of Missouri at Ne- braska City, Nebraska. “Ditto at St. Charles, Mo. “For two years General Assistant in charge of all works on Missouri River from Yankton to mouth (some 13 in num- ber). “Surveys of Mississippi River between Cairo and Memphis. “Surveys on Missouri and reduction of physical data on Missouri, Mississippi and other western rivers and super- vision of work thereon. “Nebraska City is 50 miles south of Omaha in Nebraska and 10 miles north of State line between Iowa and Missouri. ‘^Work was for maintenance and improvement of naviga- tion of Missouri, maintenance of Ijanks and regulation of stream. ‘‘Surveys and pliysical observations of changes in river bed, volume of stream and stages of water, involving testing and using the navigation of the Missouri. “First we had flat boats 70x16, carrying 40 to 60 tons, pro- pelled by sails, cordefls from the bank and sweeps. Our cor* del ling 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. “Second year we had a steamboat drawing 20 inches to 2 1/2 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 through- out the high water season of ’79. “We had opposite our work a current which averaged throughout the flood 8 miles an hour. “We performed our navigation ourselves against that cur- rent. 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 Plattsmouth reach. “It was a succession of bends with good depths and interme- diate crossings between the bends of shallow depths. One bend, Copeland’s bend, in high water spread out to 2 1/2 miles and divided into a number of channels in which the water was very shallow and variable in depth during the low water sea- son. The usual rule of depth in low water was 2 1/2 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 intermediate crossing of a mile or more to the next bend. “Missouri River 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. “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 from 1/4 ol* ii inilo to a niil(‘ and a half wi(l(^ and ovcndlovvod bottom lands to a ^reat dey)tli. “(lonerally s})oaking-, in tlio narrow places 500 feet wide, the water was deep and the (airrent eontinnons from shore to shore except on the convex side where there was some shal- lower stationary water. Three-quarters of the widtli would be occupied with a rapid current. Where it spread ont to a mile and a half wide tlie cur- rent 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 ver}^ unstable and shifting both in elevation and location. In low water navigation focomes quite difficult. “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 threading 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. During that period I saw navigation going on on the Missouri 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 the opening of the season up to August, when the water be- gan to get low, and some of those boats were very large boats, capable of carrying a thousand tons of freight. “They made two round trips to Port 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 season. They would carry a thousand tons of freight in four feet of water. There were four characteristic boats that were in the Missouri trade at the time I was on the 400 I'ivoi*: tile Montana, Dakota, the Wyoming' and tlie Tdahc, wlTn'li were 45 to 48 feet wide, 1^50 to lioo feet long — in length, and with a dejith of hold of foiii* 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 thou- sand tons of freight. “There were numbers of smaller lioats which passed up and down the river while I was at Nebraska City; a charac- teristic size being from 28 to 52 feet wide, 150 feet long, witli a depth 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 500 tons. “These lioats 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 Liver, 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 of commission in August. The smaller craft had 200 to 500 tons carrying capacity on two and a half feet of water. “We had a survey party which was making a complete sur- vey of the Missouri River, whose 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 fa- miliar with the conditions 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 navi- gation in the upper Missouri — above Carroll, or at the mouth of the Milk 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 steamboats 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 purpose 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 Mis- sissippi 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 tow-boat, and 401 had eiirreiiis in water of five inihis per lioui-, to six miles per hour, and at Fort Pillow eddy, whieh we used to imn, w(; sonietinies strnek currents of twelve miles })er hour. “Boats tried to avail tlieniselves coming uf) stream of the Fort Pillow eddy, and we did so, hut it was regarded as a dangerous point, on account of tlie counter currents, and was avoided by most boats. “I do not think I have ever seen an eight mile current in the Mississippi Eiver proper below St. Louis, but in the Mis- souri 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. “The ten to twelve inches of water spoken of is low water 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 on rafts bound together in the river. This Gasconade River comes into the Missouri River at Herman, a few miles below Jeffer- son City, and its tril)utary from the south. In its width it varies greatly, 150 feet v»dde as I judged it at the mouth. T did not go up the river itself. “I have been u]) the whole length of the Ohio River, and up that river in the fall of 1885 for the })urpose of letting contracts for $500,000 worth of watei* craft, which f had de- signed written s})ecifications for, and sto])i)ed at all the })oints along the Ohio River where there were boat yards. “The Ohio River at Ihat time was not at an extreme low stage, but I remember of going fi*oni Cincinnati to Gallipolis, Ohio, on the boat with a large complement of i)assengers, and one or two hundred tons of freight, when there was less than 80 inches of water on the bars. ‘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 ])er second. “I do not know that, I could not state that breadth at low water at that ])articular ])oint, exce])t as 1 remember it from the maps. It is very much si)read out in approaching the falls of the Ohio and the rapids. These are located just above Louisville, just o])])osite and below Jeffersonville, Indiana, and New Albany, [ndiana, on the o})j)osite side. 402 ‘‘l>ol()\v Pitts])iir^’ tlie river lias rea('lie(l as low a stage as 1,000 feet of water pei* sec'Oiid, and at times only a few inches of water, eigh't to ten inches of water on the rip|)les, in depth; and the Pittsl)nrg coal fieet has been locked up for as much as Hve months waiting for a boating rise, as they call it, in order to pass down the Ohio Iviver, and over a million tons of coal has laid in the Pittsburg liarhor waiting an opportunity to pass out when the water should l)e in tlie stream sufficient to float the coal fleet. ‘Mn the census of 1890, wlien I had occasion to make some comparisons of that kind in regard to the traffic on western rivers, the commerce of the Ohio lliver and its tributaries amounted to five ])er cent in ton miles of that carried by all the railroads in the United States. “The smaller craft that I encountered on the Ohio Eiver were much like these smaller craft of the Missouri Kiver, 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 exlreme low water periods arrive, the big boats 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 Ihe Mis- souri and into the Arkansas. “MHieii 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 navi- gation in them for a few months, three or four months, like the head waters of the Tennessee, where there are five tribu- taries 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 Grovernment has spent consid- erable money in improving these little streams, so as to pro- duce fifteen to eighteen inches of water continuously over the ripples in the interest of tow-boating and flat-boating by the people, the riparian owners. “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 ITiawasse, the Little Tennessee, the Holstern, the Clinch and French Broad, and all streams of that class in East Tennessee. They are used for carrying- on a profitable commerce. “St. Charles is located upon the Missouri Eiver about twenty-five miles from its mouth, and about twenty-five miles by rail from the City of St. Louis. The wmrk there was of a similar character to that performed at Nebraska City — the Avork of holding the river bank and training the river channel, and in the intervals making measurements of the flow and of 40 :} tho iiiovoinent ol* ilie bottom of tlio s4r*oum and ot* keeping the records. “When operating on tlie river or making a journey on the river, I liabitiially took the pilot liouse. \ liave ridden, 1 was about to say, thousands of miles on the pilot liouse on the Missouri and Mississippi Rivers and upon the Ohio Jtiver. left the Government’s service in the fall of 3884. I re- turned to Chicago for the purpose of engaging in sanitary engineering and for a time edited the ^American Engineer,’ and occupied the chair of mathematics at the Northwestern 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 Des Plaines Valley all his life, upon a sub-committee of the Citizens’ Association of Chicago, charged with the duty of preparing a solution of the drainage question for the City of Chicago. ‘Hn August, 1885, occurred a phenomenal rain of six inches in 24 hours, the greatest in the history — the greatest on rec- ord in the history of Chicago ; which sent all the contents of our rivers and slips into the lake and greatly concerned the people and brought to a head the solution of the sanitary question. We made a report to the Citizens Association, which was adopted. We examined the Chicago River, and all the flood territory, and the Des Plaines River and the regions of overflow by which the waters came to the Chicago River; in fact covered that stream from Lake (Aunty to Joliet at that time. This was in 1885. ‘Hn 1886 and 1887 I was principal assistant of the Drain- age and Water Supply Clommission, which is charged with the duty of making the official investigation, for the City of Chi- cago, and in 1888 1 was connected with the State TAard of Health as consulting engineer with the same duty. In 1888 I was consulting engineer of the joint committee of the Legis- lature and the Mayor of Chicago, which was appointed to draft a law, the Sanitary District Law, and had charge of that legis- lation at Springfield during the session of 1889. ‘‘That is the year that tliis act creating the Sanitary Dis- trict of Chicago was adopted, and later, after the passage of the law, was engineer for the petitions, for the Sanitary Dis- trict, 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 1 was a trustee of the Sanitary District, chairman of the engineering committee; and in the year 1897 1 was con- sulting engineer of the Sanitary District, and in the interval was again consnlting engineer of the State Board of Health 4(4 upon geiioi-al sanitary (luestions. And I was further con- neeted with tlie district as a nieniber of the committee upon a compreliensive i)lan for the completion of the works of the Sanitary District in 1904. “We liad an Intercepting Sewer Commission here in this city in 1897. That was under Mayor Swift, and I was a mem- l)er of the Intercepting Sewer Commission which planned the system of intercepting sewers which is now nearing com- pletion by the City of Chicago. “In 1895 I was appointed upon the first international deep waterway commission by President Cleveland, which was a joint commission of the United States and Canada, and was the engineering member of the American Section and pre- pared the report which was submitted to Congress in 1897 by President Cleveland in a special message. Then Congress followed the matter up by appropriating $600,000 for the pur- pose of ascertaining 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 investigation for the hoard 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 producing 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 contract- tors, I visited the routes for an isthmian canal at Panama and Nicaraugua 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 Committee, on the investigation of the Erie Canal improve- ments 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 rejuve- nated. “In 1899 I was consulting — entered the service as consult- ing engineer of the Union Water Company of D/enver, Colo- rado, in which position I continued for four years during the building 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 ]u*op- 405 ositiou at ilio Dos IVIoinos Ivapids ol' the Mississippi Itivor above Ivookiik, Iowa, niul Jlamilton, Illinois, and was con- neetod with that proposition for four years. ‘‘We projeoted a dam 55 feet hig'h. and 7,000 feet long at tlie foot of the rapids, wliidi was to drown out the entire rap- ids, some 12 miles in length, and set the water back to J>urling- ton, Iowa, a distance of forty miles, and do away with the ship canal alongside the rapids, which had cost the Grovern- ment since the Civil War, four and a half million dollars. “The Government had built a canal to go around those rap- ids and connect the navigation on the Des Moines above the rapids with that below. At extreme low water the rapids were difficult. “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 have also prepared water power projects or reports, or made examinations in nine States. I have studied and made flood reports upon Green River, 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, but more than half my time has been given to the domain of hydraulic engineer- ing and particularly to the subject of waterways. “The International Improvement Commission of Illinois was authorized by Act of the Legislature in 1905, and was organized in 1906 for the purpose of developing primarily some proposition in regard to the Lakes-to-the-Gulf water- way, to be submitted to the Legislature of Illinois, and gen- erally to examine the streams of this State and ascertain what it was feasible to do in the way of establishing a water- way policy foi* the state. I was secretary of this commis- sion 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 Legislature 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 commission, the Leg- islature have continued the same and given it a much larger appropriation. “The pam])hlet which- is shown me, and which the reporter marked for identification, ‘Cooley Exhibit E (iVppendix II, p. 3889; Trans., p. 5795; Abst., p. 1725) is the official print of the report to which I have referred. “I am ac(]uainted with the physical conditions of the Des Plaines River. \ have made personal examinations from Wadsworth in Lake ( bounty to tlie inoutli, established gauges thereon for the })ur|)ose of keeping a record of the stages of water, measured the stream at a number of points; have made sui-veys and (Hrected other surveys; in fact, I think most of the surveys that have been made in regard to the stream by tlie Sanitary District and tlie City of Chicago. ‘‘In 1885 wlien I first began to give it systematic considera- tion, and in connection with the Citizens’ Committee, and later as ])rinci])al assistant of the l>rainage and Water Supply Com- mission, I had cliai'ge of tlie surveys through the Des Plaines Valley, and of the records and flow measurements upon the Des Idaines and other streams aliout Chicago. “This report of the internal improvement commission of Illinois, and which is prefaced by a letter of transmittal dated Chicago, February 2, 1907, in reference to that date was of- ficially published by the state. It was transmitted to the leg- islature 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 Des Plaines Piver — I have spoken of my con- nection with the work, 1885 to 1887, and I passed over dur- ing that period a part of the upper river, and all of the lower river from Riverside to the mouth in a boat. “I was on portions of the Des Plaines 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. “Q. You may tell us now, or tell the court, whether or not the Des Plaines River from the point known as Dam No. 1 in Joliet to its mouth is or is not a navigable stream. * * * for useful purposes of commerce at the times and places where you saw it? “Witness. The Des Plaines River is a navigable stream between Dam No. 1, Joliet, and the mouth. “Counsel for Complainant. Q. Was that so when you were there and visited it and inspected it? “A. It was. “The ‘Upper Des Plaines River’ refers to that portion of the stream north of Riverside, or really north of the township line between Townships 38 and 39, which is the prolongation of 39th street in the City of Chicago, and the ‘Lower Des Plaines’ 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 407 took iHoasiiros to inoasiii-e its flow and as('(‘rtain its (I(^j)tli. I rei)oato(0y i)assod over what is known as tin; twolv(i niilo 1(3V(‘I that was oxtondiiig from the range line at Sunnnit to tin; old portage sloiigli on Range \2 or Id east, a})ove Sinnmit down to witliin a sliort distance of Ijemont, whieh was a sneeession of deep ])Ools and wide waters, (‘ontaining several feet of water with two points of more limited de])th. t also went over the portion of the river in 1892 from the end of the twelve mile level down to Lockport and Joliet. ‘‘I measured 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 southeast quarter Section 36, Town. 39, Range 12 east. was upon the river in the months of August and Sep- tember, 1885, and every month during 1886 and a large part of 1887. ‘AVe had depths in the twelve mile level, and there was a record made of those depths. The record was kept on the Riverside gauge, and printed in the report of the board of engineers for 1905. The twelve mile level l)egan at the range line between 12 and 13 east, north of Summit, at the old Port- age 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 continuously a considerable depth. * * * * # * ‘^The shallowest water observed was recorded on the maps, showing the lower water for the twelve mile level and on the profile; if I remember it was al)out eighteen indies at extreme low water. In 1887 1 was over ])ortions of the Des Plaines River this side of Joliet, and made a particular trip over the river from Joliet to the mouth and further down the stream.” (Abst., pp. 794-807.) defendant’s lULOTS AS EX CERTS ON NAVIGABILITY. Elmore W. Bewley, captain and jiilot, 58 years old. Residence, Bowling Green, Kentucky. (Abst., p. 1015, et seq.) Field — Ohio, Green, Barren, Rough, Nolin and Cumberland ‘‘Navigated stern wheel boats principally; on Green River 36 years; on Ohio four years. The others a few months each. Saw the Des Plaines River, April 28th, and think it was not navigable. (Abst., p. 1015.) “Went down to the mouth of the river from Joliet in an automobile and returned. Left Joliet 1 o’clock. Arrived back half jiast 6. Traveled 18 miles (and returned, 36). With me were Mr. Woerman and Captain McBride of Louisville. We slciyed at the iiioiitli .‘>0 minutes. 'Some places tlie road was halt* a mile from the river. We could see the river plainly. (Ahst., p 1021.) ‘^W^e (‘rossed the ihver six or seven times on different bridges.” (Ahst., p. 1015.) lie was also asked the hypothetical ([uestion of the defense, and answered that the stream, so described, could not be navigated. On cross-examination it ai)peared that the l)ulk of Mr. Bewley’s Ohio River navigation was in a strip nine miles long, not involving the rapids of the Ohio; that the Green River on which the bulk of his work was done was locked and dammed with six locks and dams in 122 miles, and that he had never navigated the river before the locks and dams were put in; that the Barren River he had navi- gated for 30 miles, using one lock and dam; that the Nolin River is navigated for 14 miles by the aid of water from the dam and lock across the Green River just below the Nolin ’s mouth; that the Rough River is a tributary of the Green, with a lock and dam in it eight miles above its mouth and that, before the lock and dam was put in, it was not navigable ‘‘except in a high stage of water two to three months in the year.” (Abst., p. 1019.) ‘ ‘ That the Barren River navigation was interfered with by the narrowings of the stream. “These streams were from 75 to 90 and 100 to 250 feet in width. (Abst., pp. 1018-19.) “The Barren was further interfered with by overhanging timber. “That he made only one trip on the Cumberland and that was before the government improvement was made, but while the work was going on and the water got down to 24 inches ; that he used lighters to go over the shoals, taking the boat empty. The two feet was iii the minimum of the Ohio.” (Abst., p. 1020.) He finally said: “My navigation has been mostly on slack water. That is easy navigation.” (Abst., p. 1022.) Nathan P. Pryor, 47 years old; steamboat pilot and master. Held pilot commission 13 years ; master 11 years. Steamboated 28 years. (Abst., p. 1022 et seq.) Field — The Kentucky, the lower Ohio. “About one year’s experience with gasoline boats, flat- bottomed scow-bowed stern wheel boats, 70 feet by 18, freight carriers. 40 !) “1 saw the Des IMaiiies April 17ili, and, in rriy ()[)iriiori, it was not navig’ahle. It was ohstriaded by brhdge [)iers, islands, and (iniber, and there were rapids. It was a high stage of water, and I could not tell wliat the obstructions were. I should judge there was rock in the middle of the river. It was too swift to navigate a boat, if you were going down stream and had to make a stop anywliere.” (Abst., j). 1023.) He answered the defendant’s hypothetical (piestion in the nega- tive. It developed that his navigation of the river was through 11 locks and dams in 210 miles. ‘‘Prior to the time the general government fixed it the river was navigable for a small boat towing a barge perhaps six months in a year. “It had not over 18 inches of water on the shoals. “I never saw nor heard of a boat operated on 16 or 18 inches of water, loaded or unloaded. (Abst., p. 1026.) “There are times when the water is high in the Kentucky and we run right over the top of the dams. “If a boat draws four feet of water and there is five feet of water on top of the dam and it is practically level, we go over it. We come down stream over that very often, but we cannot go up, because the current is too swift. (iVbst., p. 1026.) “It is not any risk to go over a drop of a foot in 400. I have gone over with a fall of two feet in 400. Would not deny it. “Mr. Woerman took me from Joliet down the river in an automobile down to the dam and back. We crossed about eight bridges. (Abst., p. 1027.) “The depth of the river I know from what they told me and my own judgment. I had never seen it and of course I had to take the other man’s word for it. I cannot say posi- tively how rapid the currents are. 1 was told the fall per mile, but not the current. 1 do not know that I could in a scientific way compute the current from the fall of the river. I talked pretty freely with Mr. Woerman all the way down and back.” (Abst., p. 1028.) W. H. Whisler, licensed steamboat man since 1870. Before that, floated logs and lumber. (Abst., p. 1154 et seq.) Field — The Upper Mississippi ; used boats towing rapids this last year and pleasure steamer. “Have seen the Des Plaines twice, once six weeks ago Sun- day and then again this morning. Went in an automobile and stopped at different places. I do not think it is navigable, it is too narrow, too swift. 1 don’t think you could take any kind 410 ()1 a })()at safe. 1 don’t think it is ])Ossi))le to (‘arry on a profit- able eonnneree on any kind of a })oat on that river. “The l)es idaines is very swift, swifter than any water we have on the Jvoek Island Ka])ids. It looks to me there are a great many }>onlders or ro(‘ks on the bottom. I don’t know what they are; I think they are boulders, because wherever the big falls are there is a break in tlie water. (Abst., p|). 1154-55.) “I never heard of navigating on the Snake River, over ra})ids with a fall of 10 feet to the mile. I think the Des Plaines is too narrow, ft is ])ossible to navigate a crooked i-iver 80 feet wide, l)y boats 70 to 100 feet long if the water is feet deep. You could not handle it unless you would drop out a line. We don’t handle that draught of boats. (Abst., j)}). 1155-50.) “The Mississippi where T navigated it is one-half a mile wide; iiarrowest place 200 feet. (Abst., p. 1150.) John McCaffrey, 05 years old. Steamboating since 1805. (Abst., p. 1157 et seq.) Field — The Mississippi, Chippewa and Hennepin Canal, the Illi- nois, the Ohio, the Tennessee and the Cumberland. “Have been around the Mussel Shoals on the canal. Not over them in a boat. (Abst., p. 1157.) “Was warped and cordelled up the Chippewa. It was the only way we could go up because of the rapids. I saw the Des Plaines River April 26th and again yesterday. It did not look much like a river to me^ — like a creek, or slough. It was swift and crooked, and seemed a very rough bottom. You could not get anything up that ivay. I should say it was not navigable. I don’t think you could get anything up there that would do any business. The river is too swift and too crooked, and there is not enough water in it to be navigable. If there is not enough water over the obstructions, they are the worst kind.’ ” (Abst., p. 1158.) “It could not be cordelled up, it is too crooked and there is not width enough, with a steamboat. I don’t know what the slope is. I didn’t take soundings. (Abst., p. 1159.) “The shallowest water we have ever run on in the Tennessee River was 44 feet, in the Mississippi River a minimum depth of three feet. I have never navigated on two feet. I warped a boat up the Ouachita once. It was pretty swift and crooked ; 300 feet wide at the bend. 4Ve have about 18 inches to the mile on the rapids (the Rock Island Rapids). The slope of the Des Plaines looked double of that. I never knew of navigat- ing rivers with a slope of six feet to the mile, or anything more than that. I don’t think they could navigate 16 feet to the mile.” (Abst., p. 1160.) -Ill ,1. W. Ivanibo, (14 years old. Pilot, (jot first })a))ers in ’d4. ( Abst., p. 1 1(10 et se(i.) Field — Fiitirely on the Mississippi. “1 saw the Des Plaines April 2(lth and again yesterday. AVe found there were rough looking pieces of water. It must be a rough, rugged and snarly bottom on account of the con- stant swirls and things on top of the water. (If course, we did not see any in most of the water. I should say no sane man would ever try to take anything up or down the Des Plaines Kiver in the shape of a steamboat. I would not go down in a skitf. (Abst., p. 1161.) have seen the Mississippi Elver when there was not 20 inches in the channel. You cannot cordelle the Des Plaines on account of the bad shore. Too many obstructions. You can cordelle wherever you have a shore to walk on. I have had to warp boats on the Bock Island Kapids a hundred times. (Abst., p. 1162.) don’t know of a boat in our country that could go up that river, and I have seen them all. The greatest fall in the Bock Island Bapids is 34 feet to the mile. I don’t know of any navigation on any river that has a fall of six feet to the mile. I don’t think it possible to navigate anything on 16 feet to the mile. The smallest boat 1 speak of was 70 feet long, with a 17 feet beam, and carried 40 to 50 tons. I do not know of any boat carrying 10 tons. I think a boat 30 feet long and 15 feet wide with a flat bottom could carry 10 tons. I never have had any experience with that kind of navigation. (Abst., p. 1163.) don’t think it could go up the Des Plaines.” (Abst.. p. 1164.) Joseph E. McCullough, St. Louis, Missouri. Age 62. Pilot 40 years. Master 27. Field — Mississippi, Cumberland and Ohio. Falls of the Ohio and Harbor Shoals on the Cumberland are the most rapid waters 1 ever navigated. Never navigated more difficult or raj)id water on any river than tlie Cumber- land. Saw the Des Plaines in April and again this morning (June 2, 1908), from Joliet down to the mouth. 1 certainly think it is not navigable and could not be used for useful ])ur- poses of commerce. It is hard bottomed, rapid, crooked and very narrow. Do not think it possible for any steamboat on earth to ascend or descend it. (Abst., p. 1176.) ^Ht is swifter than the falls of the Dhio or Harbor Shoals of the Cumberland or Bock Island Bapids. “The Ohio Bapids have a fall of 28 feet in two miles. The shoals of the Cumberland have a fall of eight feet in a little over a mile. They had to war]) over it before the Govern- 412 ineiit placed in a Icx'k and dam. If you had all the water needed to niakx‘ the best navigation, 1 would say you could get up and down a slo])e over four or five feet to the mile. (How then did they navigate the fulls of tlie Ohio?) ‘OV flat bottomed boat bO feet long and 12 feet wide could carry 10 tons of freight on six indies of water. It could not carry 10 tons of freight, because it would take six or eight inches of water to carry machinery. (Abst., pp. 1177-78-79.) “I said at first and I will stick to my text, I don’t think you could bring a canoe up the Des Plaines lliver. 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. (Abst., p. 1179.) ‘^The highest current that is navigable in shoal water would not be over four and a half to five miles current.” (Abst., p. 1182.) Thomas F. Boyle, St. Louis, Missouri. Sixty years old. Li- censed pilot in 1871; master’s license over 25 years. (Abst., p. 1179 et seq.) Field — The St. Louis, the Ohio, the Ouachita and its tributaries and the Arkansas River to Little Rock. I piloted on the Arkansas in the cotton seasons before they built the railroad. In the summer there wasn’t enough water to run a boat. The Arkansas is the toughest river on earth. The lightest boat on that river does not draw over 18 inches. The Harbin does not draw over 12 inches. saw the Des Plaines in April and again this morning with Captain McCullough. It has a rough bottom; it is crooked, and no boat on earth of any size or account would ever attempt, or no fellow would ever attempt to go up it. It is not navigable. It would wear the bottom off the boat to warp it up Treat’s Island. (Abst., pp. 1179-80.) saw snags, logs, bars and rock bottom itself in the river. I think you could see the rocks. Thev were under the breaks. (Abst., p. 1181.) don’t know whether a boat could be made to run on a river that had a fall of 16 feet to the mile. ^‘The navigable part of the Arkansas was 40 feet wide. There are times when the Harbin, that draws only 12 inches, cannot go up it. ‘‘Below St. Louis the Mississippi current is between six and seven miles an hour. (Abst., p. 1181.) “My boat can go against a ten-mile curernt, but I have no idea how many feet per mile of slope would produce that cur- rent. “From my vieu' of the Des Plaines the other day I do not think there U'as over three and a half feet of mater at the shoalest place.” (Abst., p. 1182.) Istvac N. Mason. Sovonty-oi^lit yeai's old. IIoiik;, St. l.-ouis. Steainhoatod forty-six years. Nevei- held a pilot’s lieense. (Ahst., p. 1217 et seq.) Field — Tlie Monong’aliela, tlie Ohio, tlie Mississippi and the Mis- souri. ‘O WR8 clerk on the boats — freight agent for the Northern Line to St. Paul and President of the Anchor Line. T was City Auditor, Sheriff and City and County Marshall, State Auditor and President of the Merchants’ Exchange. I had an office on the wharf boat, but had nothing to do with the naviga- tion. took out a boat from Vicksburg during the war. ^‘The Des Plaines is not navigable. I saw it from an auto- mobile this morning. ‘‘The falls of the Ohio have a slope of 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 per hour. The water is so deep it flattened out the slope. The current at the Rock Island Rapids is 10 or 11 miles an hour. (Abst., pp. 1217-18-19-20.) “There is places in the Des Plaines 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 Dies Plaines this morning. It is 43 years since I quit running boats over these rapids in the Mississippi.” “There are no locks and dams in the Cumberland, the Ten- nessee or the Allegheny. (Abst., ]). 1220.) “The captain of the steamboat has the ]fdot under his direc- tion.’’ (Abst., p. 1221.) We submit that the opinions of these eight expert witnesses for the defense, that the Des Plaines is not navigable, are worthless. It turns out that Bewley and Pryor, two Kentucky i)ilots, are slack water ])ilots and have had no ex])erience away from slack water except on the smoother ])ortions of the Ohio. Wliisler and Rambo were raftsmen from the Mississii>pi who grew up into i:>ilots, and were familiar with the immense stream of the Mississippi, and their piloting experience is mostly since the Mississippi has been improved by wing dams, locks and the blast- ing of channels through the reefs of the Rock Island Rapids. Ram- bo, however, does remember warping up the Rock Island Rapids in 1864, with less than 20 inches of water and through a current which, it appears from the other testimony, ranged from three miles an 414 lioin* to nine and c4even miles an lioiii* and through a channel which it appears from other testimony was narrowed down to 200 feet a good deal of the way and to feet in tlie narrowest place; and this (‘hannel was strewn with boulders, some of which were so ])ermanent and stood so high above the water that the pilots used them as landmarks. The opinions of these men were simply deliverances of the goods they were ])aid to deliver. McCaffrey’s record was much the same, with the addition of experiences on the Tennessee, Cumberland and Ouachita, hut the shallowest stream he has ever had anything to do with was four and one-half feet on the Tennessee and three feet on the ^Mississippi. He never did run on less than three feet. Natur- ally, he thinks that what'he has not done cannot he done. And yet, the records affirmatively show that in 1889 there were steamboats navigating the Mississippi Eiver and its tributaries on less than three feet of water. AFcCaffrey thinks that a boat cannot navigate a stream with a slope of six feet to the mile, and, as to anything more than that, it is out of the question. Boyle, with his experience on the Arkansas, thought a boat could not go up against a fall of ten feet to the mile, although he was sure that his boat could go against a ten mile current. The opinion of Mason, wdio was a clerk and freight agent, city marshal, sheriff and state auditor, and who was sure that there were no locks or dams on the Cumberland, Tennessee or the Alle- gheny, is not worth discussing. The opinion of McCullough (whose voir dire was, said at first and I will stick to my text; I don’t think yon could bring a canoe up the Des Plaines Eiver. My record as a navigator and pilot, if T do say it myself — I can prove it, there are few equal and none my superiors”) is that even if the Government reports showed him records of streams such as the Snake, then he would have to be shown the river before he would be lieve it. This is the opinion of the narrow-minded, well-intentioned, ignorant, conceited man of small experience, the man who comes from St. Louis, Chicago’s commercial rival, where opinion generally has been hostile to any development of navigation that would bring the business of Chi- 415 c'ago, by water, into (‘oinpeli lion with that ot St. Louis. It is an outbreak of the petty old rivalry that, for luany years, kept St. Louis and (diieago at swords points; and this man of sixty-two, I^oyle of sixty, and Mason of seven ty-eigiit years, all from St. ]jOuis, are simply so many expressions of that s[)irit. The defense naturally went to that field to find liostile attack upon anything in tlie way of a navigable river in the vicinity of Ciiicago. St. Louis might have outstripped Chicago in every other respect, but these worthy ancient mariners were sure that there was still one respect in which St. Louis was in the lead — she had a navigable river, and Ilinois and Chicago had not. It was the same spirit of commercial jealousy which, in the first instance, lead LaSalle in 1680 to establish his trading post for the foot of the lakes at St. Joseph and lead him to attack bitterly the prior settlement inaugurated under Marquette and Joliet at Chi- cago. That old fight had been fought out and settled. The trad- ing post at the foot of the lakes is at Chicago and not at St. Joseph, LaSalle to the contrary, notwithstanding, and the fight between St. Louis and Chicago has been fought out and forgotten except as re vived by the ancient mariners whom the defense saw fit to imparl. And yet, the Government reports and the defendant’s witness. Gray, show that in the Columbia and Snake there is in the Five- Mile Rapids a slope of over ten feet to the mile; that in Fishhook Rapids there is a slope of ten feet to the mile, with a reef and shoal bar and only two feet of water; that at the Pine Tree Rapids there is a slope of twelve and fourteen feet to the mile that it took two days to get through; that at Monumental Rapids there is a fall of 1.7 feet in 300 feet, being at the rate of 29.88 feet, with a depth of thirty inches, very difficult and dangerous and not effectively navi- gated; that at Texas Rapids there is a fall of over 11.56 feet per mile; that in its native condition it used to take all day to get through, but now it has heen made so that they run it in half an hour; that at the Grand Ra])ids of tlie Stikine there is a current of twelve miles an hour Vvdiere no boat goes through without a line put out and they go on a depth of three and a half feet, which estimated to be the shoalest depth in the Pes Plaines River; that at the Umatilla Rapids, with a fall of seventeen feet, they have a current of twelve miles an hour, and very crooked on a five feet (loj)tli; tliat the S(jiially Hook Rapids fall ten feet in three-quarters of a mile 'and have a velocity of from seven to ten feet; that at the Priest Rapids, nine miles long, they have a current of twelve miles an hour on a five feet depth, and that this is only navigable at the medium and liigh stages of the stream. This ex})erience, recorded by the Oovernment Engineers in their reports of ’85 and ’91, and testified to personally by Gray, the testi- mony of men like the defendant’s experts, that navigation cannot be carried on on a slope of six or seven, or ten feet to the mile, is simply annihilating, and the weight of their opinions, as experts on such questions, is reduced to zero. THE defendant’s ENGINEERS AS EXPERTS ON NAVIGABILITY. These expert-s for the defendant were called to testify to a great variety of things — among others, the effect of the proposed dam on the Canal ; but some of them were asked their opinion on the navigability of the river. Their testimony on that subject was incidental, and apparently not the subject for which they were pri- marily called. Among these witnesses were : Mr. Robert Moore, L. L. MTieeler, J. W. Woermann. Their qualifications and testimony on navigability were as fol- lows: ' Robert Moore (iVbst., p. 994 et seq.). ‘M am approximately 70 years old. Reside at St. Louis. Am civil engineer. I have been the largest part of my professional career employed in the location and construction of railroads. * * * My work as a civil engineer has brought me into the work of river terminals, their location, construction and protec- tion ; protection from the action of the water, from floods and the erosion by the currents. This includes protection from the Mississippi River. * * * j ^ 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 River, and the value to the Government. The 3"ear 1897. That work consisted of jetties built out into the river to deepen the chan- nel and to resist the action of the waves. * * * “Tn 1899 I served as a member of the engineering board 417 wlioso task was to proj^are a j)lan and an estimate 1‘or a deej) water eliannel in the southwest pass of the Mississipi)i liiver. The Eads jetties is the south ])ass. * * ‘‘In 189() 1 appeared befoi'e the Southern (valirornia llarhor Board to present the ('ase for the San Pedro Harbor; that was followed by a report of the board in favor of San Pedro, whi(‘h was ratified by Congress. * # ‘ * * * * * “Q. I show you a blue print or profile of the Illinois River and of the Illinois and Michigan Canal, marked Woerman Ex- hibit 2. state whether or not in your opinion Des Plaines River as shown by that profile was a navigable stream. I have examined the profile. It shows at one point, through the City of Joliet, a water surface which is approxi- mately from six inches to eighteen inches above the bottom, that bottom being largely rock, as I understand from my ob- servation 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, where the surface of the water almost touches the bot- tom, certainly less than a foot deep, on which I should say the same thing. That is a very steep slope and a very shallow chan- nel, 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.* 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 it in Joliet from the Rock Island bridge. I should say that on yesterday I didn’t conceive of any com- mercial navigation that would undertake it.” (Abst., p}). 99 f-, 995, 998, 999.) L. L. WhEiELeii (Abst., pp. I2M9 et seep). ‘‘Residence, Sterling, Iliinois. Civil engineer. Graduated IT. of M. in 1874. Served under General Comstock in the sur- vey of the northern and northwestern lakes; also in the Mis- sissippi River Commission’s office in St. Louis for six years, ])reparing data for jmblication. “Surveyed the waterway from the lakes to the Illinois River at LaSalle in 1888 to 1890, under Major W. L. Marshall. Since then have been on the Hennepin Canal. “Became familiar with the river from Joliet upwards to Summit. Below Joliet I went down and through in a skiff. Below the Sag Bridge (up above Lockport) we crossed a num- ber of places by simply going from stone to stone without hav- ing gotten into the water to get our feet wet. We ran on to boulders and parti v capsized at Treat’s Island. (Abst., pp. 1250A1.) ‘M should sa\' that it was not navigable for (commerce car- ried in boats. It might have been used in times of higher stages foi- Heating logs or timbers down stream; nothing very well could cojue up stream. (Al)st., ]). 1251.) ‘^It was (jiiite crooked in places. I do not recollect that it would have been so crooked as to interfere with navigation. (Abst., p. 1252.) “In my opinion it would not have been navigable on account of the steep slope. (iVbst., p. 1252.) “I don’t recognize Sheet 18 of Major Marshall’s Keport as one of my own production. It says so in the title. It might be an imitation. I don’t vouch for its authenticity at all. There is no measurement that I personally took that is record- ed there in a way that I identify as mine. (Abst., p. 1265.) “My report in 1890 said: “ ^At low water the entire flow (of the Des Plaines River) passes in part through the Ogden dam, but the greater portion into the Canal through the permeable soil separating them. ’ “I suppose I meant that it passed through the Des Plaines River into the Ogden ditch, and so out into the south branch of the Chicago River. I suppose that is correct. “The statement that the water passed into the Canal through the permeable soil was correct. “I meant to say that these two causes absorbed and took up the entire flow of the Des Plaines River in times of low water. (Abst., p. 1267.) “I don’t know how many boats were maintained on the Hen- nepin Canal. ‘ ^ Our tow boat is a launch about 40 feet in length, and about seven feet beam, with a two-cylinder gasoline engine of 16 horsepower. Its ordinary draft is about three feet. It will tow towing barges. (Abst., p. 1272.) “One of our barges is 100 feet long and 18 feet wide, adapted to carrying grain or coal. (Abst., p. 1273.) “I have had charge of a construction fleet and boats in sur- veys. (Abst., p. 1274.) “I had difficulties in navigation at several places on the Mis- sissippi. I went ashore among snags and floundered about the drift there for 12 hours and looked to be in a pretty bad case. It was like other boats that go ashore. They do not go from the desire of those navigating, but because they cannot help themselves. It was one of the inherent difficulties of the situa- tion there. I had not sufficient motive power to control the boat in the high wind which set up. I ran ashore on sand bars several times against snags, when I did not want to go there. ’ ’ (Abst., p. 1275.) 41 !) J. \V. \\4)kkiviann (Absi., pp. 1428 et scHp). ‘^]\osideii(‘o, (4ii(*;pi>;() ; ocH'iipatioii, civil eiig’ineor. I am in the employ of the defendant in connection with this case. Prior to tlie case 1 was in the employ of Mr. Mead, tlieir resident engineer in charge of the construction of the works. ‘^Graduated at Washington University, St. Louis, in 1889. Assisted Mr. MHieeler in the Marshal survey in 1889-1890. M^orked on the La Grange dam in the Illinois River in 1890; w^orked on the Missouri River in 1890 ; in 1894-2 on the Henne- pin Canal. ^‘1902-1905 I was in charge of the surveys, maps, plans and estimates for the 14-foot waterway from Loclqoort to the Mis- sissippi. (Abst., p. 1431.) ‘ ‘ I Tvrote that part of Document No. 263. It is signed by me, I went from Joliet to the mouth of the river in a skiff — once in 1899 and once in 1904. (Abst., p. 1432.) ^ ‘ The Des Plaines River is not navigable. ’ ’ (Abst., p. 1455.) This is the witness who prepared and reported to the Govern- ment, before he came under the pay of the defendant, the follow- ing statements : ^Mn order to ascertain whether the currents which obtain in the upper Illinois and lower Des Plaines rivers during extreme high water woidd prohibit navigation at such times, the veloci- ties were computed at 16 points between Utica and Joliet for the highest water on record for each station. These results, which are shown in the following table, are based upon the fol- lowing field measurements, and are entirely independent of any assumptions or theories. ******* ^^This table is designed to show the greatest velocities which occur from Utica to Joliet. A study of the table, in conjunc- tion with the profile, indicates that from Utica to the foot of Moore’s Island, a distance of 12.3 miles, the maximum velocity varies from 2.8 to 3.6 miles per hour. From the foot of Moore’s Island to the middle of Bell’s Island, a distance of 2.3 miles, the velocity increases to 4.3 miles per hour. Prom this point upstream the velocity continues to increase as we approach the Marseilles dam, which is 247 miles from Grafton. One mile below the dam the velocity was 5 miles per hour. Just below the dam it has been impossible to compute the velocity, as there is not sufficient data on hand, but it was prob- ably not less than 7 miles per hour. From the Marseilles dam to Seneca, a distance of 4.4 miles, the velocity varies from 3.5 to 4.1 miles, the greater value being found at only one section. From 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 to this, viz., at tli(‘ iiioiitli of the Des Plaines River and at Treat’s Island, wliere it is impossible to ('onipnte the veloeity, as there are not snllieient data on hand. It would probably not exceed 4 miles {)er bom*, at either plac'e, for a distance of about one-lialf mile, Pi‘o(‘eedini>' up stream from Lake Joliet, the velocity increases np to Dam No. 1 at Joliet. At the Jetferson street bridge the ('ompiited velocity is 7.4 miles ])er hour for the flood of 1904. ‘'From the ])re(‘eding investigation it has ])een decided that the velocities, ivliicli obtain dnrinfj extreme high mater are pro- hibitive onlt/ below the Marseilles and Joliet dams. Under the adopted project a canal about J miles long has been provided along each of these sections. The velocity from the Marseilles dam to Seneca, viz., J.5 to 4.1 miles per hour, is obstructive to navigation, but not prohibitive, and as these floods occur only at rare intervals and are of short duration, it is not considered necessarg to leave the river bed at this section. The same re- marks a])i)ly to the section just below the proposed canal at Marseilles, and to the short sections at the mouth of the Kan- kakee River and at Treat’s Island.” (House Report, 59th Congress, Doc. No. 263, pp. 40-41.) This re])ort is signed by the witness Woermann on page 68. AVhen he was working for the Government and studying the navi- gation problem and ascertaining whether the currents in the upper Illinois and lower lies Plaines, during the extreme high water, would prohibit navigation, he found 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 provided 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 prohibitive, 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 River and at Treat’s Island. That was the testimony of Mr. AVoermann on the navigability of the lower Des Plaines, when he was employed by the Government to investigate that subject. AVhen he was employed by the Economy Light & Power Company and by this resident engineer, Mr. Mead, to help complete a dam, then be was very certain that the Des Plaines River was not navi- gable. A eliange liad eonio over Iiis opinion. The reason lor the change is readily found in tlie nature of his employment. Tliis is a suitable illustration of the statement of Woodson that experts ‘‘as a class liave become the retained agents of the par- ties,’’ and of the remark of Judge Cooley in 42 Mich., 206: “To obtain such evidence is expensive * * * array may be liad if the court will consent to their examination ; and if legal con- troversies are to be determined by the preponderance of voices, wealth in all litigation in which expert evidence is important may prevail almost, of course.” It is a typical sample of the condition referred to by Mr. Jusiice Millee, in 4 Dillon, 448, thus: “Whenever the matter in contest involves an immense sum in value, and where the question turns mainly upon opinions of experts, there is no difficulty in introducing any amount on either side.” It must indeed be expensive to induce an employe in the Gororn- ment, who has rendered such an illuminous report in favor of the navigation of a stream, to go upon the witness stand and swear that it is not navigable. Nor is the matter aided by the labored ex})lanation made, that he found some objections to its navigability^ — such as “boulders,” “slopes” and “sinuosities,” which were not mentioned in his report to the Government. This is the severest possible indictment of the good faith of the witness : to say that he would make a report on the subject to the Government, and kee}) silent on those very elements which he finds controlling now. We respectfully submit that Woermann, the Government em- ployee, is more worthy of credence than Woermann, the defend- ant’s employee. Woermann ’s actual knowledge of navigation is not personal. He said: “I am (not) aware of the fact that barge naviga- tion has been carried on throughout wide reaches in the Mis- sissippi River under fixed bridges. I know that they were not on the lower Mississippi; I mean, the Mississippi itself; but I don’t know about the tributaries of the Mississippi comprising the Mississippi Valley.” It was on tills that Major Marshall said, in the report of the sur- vey in which Mr. AVoennann assisted, in referring to the list of steamboats : ‘‘It includes all the powerful tow boats of the Pittsburg Coal (Companies, of tbe Iron Transportation Companies, and of the Alississippi Valley Transportation Companies, as well as the lumber rafting boats on the upper Mississippi River. Ninety- five per cent or more of the commerce in tonnage of the west- ern rivers is carried on by the boats of this class, or in barges propelled by them.” (Alarshall Report of 1890, Ex. Doc. No. 264, p. 7 ; Abst., p ) The tendency of AMoermann to exaggerate in favor of his new employer is shown by his testimony on the slopes. (Abst., p. 1445.) “A^^ell, in the main channel, near the head (of Treat’s Island) 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 per mile, per- haps for a distance of 500 feet or so ; or a still shorter distance, you collide find still steeper places. A¥ell, at Smith’s bridge, where I gave a fall of 2.7 feet in a mile, if yon. take the steepest portion, probably it would be 10 or 12 feet to the mile for a short distance near the bridge; perhaps for four or five hun- dred 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.” (Abst., pp. 1445-1446.) As we have seen elsewhere: if a cobblestone three inches in diameter projected upward in the bottom of the stream for three inches, the water going immediately over the top of that cobble stone would descend three inches downward while traveling three inches forward. This would be a slope for that short distance at the rate of 5,280 feet per mile, and “for a still shorter distance you could find still steeper places.” The attempt of AA^oermann to compel the boat to go down the right hand channel was another perversion, the Cooley profile, the Alarshall profile and the earlier testimony of witnesses all showing that the left hand channel was the wider, the deeper and the better. Another sample perversion of Air. AA^oermann was the taking of the profile of 1867 and platting it together with a profile of his own compiling, as “AAmermann Exhibit D” (iAbst., p ) : “It is made on what is called millimeter paper, but I did not use tlie ineirie system. Wliile it is i)riute(l niid sold for milli- meter purposes, I substituted feet and tenths of feet for milli- meters. As to the scale of tliis ])rofile of mine in length, each of these centimeter squares represents 1,000 feet. ‘‘One of those squares would represent 5,000 feet in length and five feet in elevation, so that the scale is 1,000 times mag- nified in vertical ranges as compared with the horizontal range. This magnifying of a vertical scale of 1,000 to 1 does not occur as much as that, I don’t think on the profile of 1867. And it does not occur in the Government profile of 1904-5. I could just as well have made it, instead of making it 1,000 to 1, I could have made it 100 to 1, if I had wanted to.” (Abst., p. 1474.) The Cooley Exhibit 3, the Consolidated Profile, is drawn on a horizontal scale of 2,000 feet to the inch and a vertical scale of 10 feet to the inch — or a magnifying of 200 to 1, as to which Mr. Cooley said : “It is customar}^ to exaggerate the vertical scale sufficiently to visualize the slopes and declivities (Abst., p. 814), and as to the method by which the profile was drawn — it is an approved and accepted method among engineers. ’ ’ (Abst., p. 812.) Woermann stated on direct examination that the year 1867 was not an abnormal year of low water. (Abst., p. 1446.) His attention was then called on cross-examination to the state- ment of Gen. James H. IVilson, December 17, 1867, in returning the re})ort in wliich he described the season as “the present ex- cessively dry season.” And again to the statement made in De- cember, 1867, l)y James Worrall, assistant to General Wilson, and directed to General l¥ilson, published in Executive Document No. 1, 40th Congress, Third Session, No. 2, page 464, in which he said: “The de])ths are reduced almost every season upon the shallows in the bed of the stream, until they do not exceed an average depth of 20 inches, thus in fact suspending naviga- tion for periods varying from 60 to 90 days, and extending sometimes, as in the season last passed, to a period of 150 days/’ Mr. Woermann said that he had read the statement, but did not have it in mind when he said the season of 1867 was not abnormally low. The average of 60 and 90 is 75, and 150 is just double that amount. Mr. ¥Voermann, in preparing as an expert agent for the 4L4 (lefense to attack tlio river, took tlie protile of 1867 as his standard, and said that it was not an ahnornially low year, altliough the re- port whi(*!i a(*('onii)anied that profile pi’ononneed it an excessively dry season and stated that navigation was suspended in tliat year foi- double the ordinary time. Mr. AVoerniann brought in a sketch putting the Adam dam and the proposed dam in cross section side l)y side, and making tlie proposed dam look very much like the iVdam dam. Not until it was brought out under pressure of cross-examina- tion, did he admit the following: “This map has undergone some sort of an alteration. There is a scpiare there that is perhaps six inches high and ten inches long, embracing the dam here, that has been pasted on. That ])rint as made was a copy of the original, which was on manila paper, which was introduced as Woermann Exhibit 1. That is a blue line print. The original was made hurriedly, without my making an examination as to the wall on the inside. I knew from memory that there was a vertical wall there, but I didn’t know tliat it went clear to the bottom. After it was made, while the case here was in progress, I went down there one day and examined that all along there with an iron rod and found that wall continued on that same base which was visible above the water clear down to the bottom of the canal, so I changed that feature of it. Rather than make an entire new tracing, I just had the draftsman paste a piece of paper on there. The Woermann ’s Exhibit 1 that I had in mind is in this room. Changing that wall would change the thickness of the embankment. Further than that, there are no other alterations that I recall. 1’ (Abst., pp. 1480-1.) We submit that such a silent alteration of an exhibit during the recess of the Court without calling attention to the same when they were made, and leaving the same to be discovered or not by the cross-examiner; and when discovered, the admission that the “original was hurriedly made without making any examination,” would be sufficient in itself to cast suspicion upon the entire testi- mony of the witness. And when this witness is the one who now testifies in effect to the contrary of what he reported to the Government and explains it by referring to matters which he omitted (“suppressed!”) from his report to the Government, it is clear that the testimony of tills witness is not to ho ro>»’iir(lo(l ns against tlio ovidonoo (lontainod in tlio rojiort to tlio govorninont. Anotlior explanatory attempt by or in belialt ol* the del'endant’s expert agent, Woermann, was that his report on the survey of 1904-5 I'elated to a waterway made by locks and dams, and there- fore, it was said, it signified nothing as to the natural navigability of the river, except, perhaps, to signify that it was not navigable naturally. But this is a mere attempt to obscure the situation. His report says (p. 40) : ‘Hn order to ascertain whether the currents which obtain in the upper Illinois and lower Des Plaines during the extreme high water tvould prohibit navigation at such times. The velocities were computed at 16 points between Utica and Joliet, for the highest ivater on record for each station.’’’ Mark the present tense— Uhe currents which obtain” — that is, which now exist in the river as it is. ^^From Seneca to Patterson Island, at the head of U^ke Joliet, a distance of 32.7 miles, the maximum velocities vary from 2.1 to 3.1 miles per hour. There are two exceptions to this, viz., at the mouth of the Des Plaines 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 the distance of half a mile. ^ ^ ^ At the Jefferson street bridge the computed velocity is 7.4 miles per hour for the flood of 1904. From the proceeding in- vestigation it has been decided that the velocities which obtain during extreme high water are prohibitive only below the Mar- seilles and Joliet dams. Under the adopted project a canal about three miles long has been provided along each of these sections. The velocity from the Marseilles dam to Seneca, viz., 3.5 to 4.1 miles })er hour, is obstructive to navigation, but not prohibitive; 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 dam at Marseilles and to the short sections at the mouth of the Kankakee Biver and at Treat’s Island.” The entire report shows that the computation is as to the veloci- ties which obtain under existing conditions in the highest known state of water. It is perfectly obvious that with the introduction of a series of locks and dams, su(*li as that project called for, the current would be reduced to any degree desired. The current, as talked about here by this report, is the current found under existing conditions in the Des Plaines and Illinois rivers; and it is equally obvious that to talk about there being a current under existing conditions which makes the river as a whole non-navigable is an exaggeration and a pretense to justify an attempt to appropriate to private uses a great public right. And it is further equally obvious that the statement of this wit- ness now that the river is too swift to navigate is directly contra- dicted by his unbiased statement to the Grovernment and the public made then. Another illustration of Mr. Woermann’s perversion is found in his treatment of the Eiverside gauge. The circumstances attend- ing this were as follows : In the cross-examination of Francis Belz, Mr. Munroe, for the defendant, asked the witness: ‘^Don’t you know it is a matter of history that the Des Plaines River and the Chicago River never met but once, and then it was caused by an ice gorge in the river backing the river up!” The witness answered, ^MTgh!” (Abst., p. 4-1-3.) This was the position of the defense. This the State annihilated by putting in the following testimony from Engineer Lyman E. Cooley : ‘M measured the stream at Riverside at various times in 1886, and also in the floods of 1887. I establisbed 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 26, Town 39, Range 12 East. The proposed new dam is marked as a little to the left j)r vcest 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 24 feet to the mile as an 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. 1 am ac(piainted with the dimensions of the Sanitary Dis- trict Channel. The channel in the Rock Cut for something less than seventeen miles between Willow Springs and the terminus at Lock])ort has a ])ottom width of 160 leet and width 427 at water lino ot* 1()2 I'eet, and depth wlnni running’ to its rull ('apaeity ot* 24 feet at standard low wat(‘r of Lake; Michigan when tilled. By full capacity, I mean 14, ()()() cubic teet ol* watei* per second, for whi(*h tlie Sanitary (kinal is desigruM]. It nev(ir Jias run tliat much, unless possibly in an endeavor to g(*t rid of some hood water out of (diicago. As to the normal and ordinary flow in the Sanitary District (diannel at this time and since it was o])ened in 1900, the chan- nel was opened on the basis of 5,000 cubic feet of water per second, but was limited by regulation of tlie War l)e])artment to 4,200 cubic feet of water per second during the season of navigation in the Chicago Eiver.. 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 second. The Govern- ment limit has not been applied. But when the navigation season is open on the Chicago River, then it is under the Government regulation and the dis- charge is limited to 4,200 feet per second. * * * A continuous record has been maintained ever since on tliis gauge, with the exce])tion of the years 1890 and 1891. The catchment area is the watershed or gathering ground from wliich the waters How whicli the river has to drain. The average rainfall in this district is 22.9 inches per an- num. That is taken from the Government record from 1842 to 1907 inclusive, a ])eriod of 65 years. The average is 22.9 inches. 1881 was the great and (hiaracteristic flood, which we have been able to assign and study most (hosely. The volume of water in the lies Idaines River at the time of that flood was 12,500 cubic feet of water ])ei‘ sec'ond. The date wlien the water reached that amount was in Ai)ril. I have classified or assembled the data of these stages of water shown in the Des Plaines River by the Riverside gauge. I have tabulated for 19 full years since 1887 the num])er of days at which the gauge at Riverside has stood at or above a certain elevation. The first of these is 18 feet, one imhi, or 18 feet above Chicago datum corres])onds to a, volume of 4,500 second feet, which is a flood stage in the Des Plaines River, and during the 19 years the river has t)een at or a])ove such flood stage for an aggregate of 72 days. This flood stage corres])onds for great floods to an elevation of 16 feet and upwards in llic* twelve mile level to tlie (le})tli of, in extreme flood, five feet i)assin^' ovei* the original (-hicago divide at Kedzie avenue into the (diieago River. 1 would say in that pai't of the (7hi('ago River oi* the south Ijramhi thereof witli its two forks, where the route overflows from the time of the dis('ovei‘y, and that the south fork was )naintained thereby. 1 state that this elevation of 18 feet had occurred in 73 days. That re])resents a volume of 4,500 second feet and upwards, ddiere were floods in that ])eriod, one which I measured |)ar- ticularly in 1887 which ran something over 10,000 feet, and 7,000 feet, of which I got measurements in the west fork of the (diicago River. An elevation of 18 feet, as recorded on the Riverside gauge as })roducing 4,500 second feet of water, did not all go down the Des Plaines — it does in nature. It divides, a portion of it coming by way of the old Portage trail and swamp through the Chicago River. I have made an estimate some years ago tliat 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 de])th in the vicinity of three feet and the extreme floods to a depth as great as five feet, coming into the Chicago River. 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 Chicago 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 v/ater sur- face as read upon that gauge above Chicago City datum. Tliat is the top of the v/ater; the elevation of the botfom of the liver at this Riverside gauge at the extreme low water at that point is 11.4 feet above Chicago datum. That is the low water level. The bottom of the river I do not now recall. They are not tlie 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 year, or a total of 879 days. 13.8 feet would be about two feet of water, that gives in the Des Plaines River, — about 1,052 second feet. 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- tlio C'^hic'ngo I\iver Troin Dos Pln‘m(‘s. Tlio next olass into vvliic'li I have tal)iilal(‘(l lh(*s(; ^ansi;(;s, — 1 have tabulated for the time at whi(‘h the watei* has pia^vai 1(h1 at an elevation of 13 feet or more upon the Itiverside ^an«(‘, said elevation eorrespondin<> to a volmiH; of (iOO sec'ond teed, and eorres})onding also to an elevation of about 10^ feet, in the twelve mile level, and Portai>‘e swamp, oi- the elevation as nearly as ean l)e determined of the original divide at Kedzie Avenue. That stage of water has prevailed for 1,339 days, or an average of 70.4 days per year. The entire l)ody of water in the Des Plaines Eiver at that elevation would go down the river, — in the absence of the artificial interferences that liave occurred since, — except such as may liave passed Through the narrow drain mentioned by Major Long as l^eing cut below the level of the divide. The tliird classification which I have made corresponds to an elevation of 12.4 feet, upon the Eiverside gauge; or al)ove, and this is the equivalent of 305 second feet on the Eiverside gauge, or at the Eiverside gauge, and of an elevation of 9.0 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 100.7 days per year. The average rainfall during these 19 years from the Govern- ment re])orts is 30.75 inches or a deficiency of 3.15 inches per annum during 19 years. 1 mean that this period of 19 years in which 1 have tabulated the re])ort in this way, that the an- nual rainfall is 3.15 less inches per annum than the fall for the entire period that you have given. This was a period of exceptional draught. The range during that 19 years was 24 inches and 37 inches, I think. 1 have summarized this tabulation all together on one sheet that I have been testifying about. * * ' ■* «= -X-- The extreme low water level recorded on Eiverside gauge was 11.4 feet. The extreme low water level in the 12 miles level was 8 feet above Chicago datum. That would be about 8 inches at the minimum places in the river.” (Abst., pp. 806, 818, 819, 820, 821, 822, 823.) The tabulation referred to by the witness is as follows: Eiverside Gauge — Tabulation of Plow. Number of days at which the Eiverside Gauge stood at or above certain elevations, in nineteen full years, — 1887 to 1907 inclusive. (a) Elevation 18 ft. corres])onding to tbe (bust of Spill- way at Elevation 16.25 ft. and a volume of 4500 second-feet. (h) Klevjition of lo.S ft. ('orrc^spoTidirig to (d*est of Ogden Dam at Dlevation 11.7)) ft. and n volume of 1052 Heeond-feet. (e) Olevation 15 ft. eorrespoiiding to original Cliicago T)i- vid(‘ at Klevation 10.5 ft. at Summit, and volume 000 second- feet. (d) Elevation 12.4 ft. corresponding to Elevation 9.0 ft. at Summit in Twelve-Mile Level, and volume 305 second-feet. (a) 18.0 ('>) i;i.,s (c) l.’l.O (^1) 12.4 Precipitation at Cliicago. 1887 5 75 89 172 2913 1888 42 90 90 30.86 1889 35 01 100 34.95 1892 7 00 07 73 36.50 1893 5 54 80 105 27.47 1894 3 29 04 103 27.46 1895 1 15 21 34 32,38 1890 12 33 119 33.14 1897 9 77 99 134 25.85 1898 0 40 50 93 33.77 1899 30 42 81 26.49 1900 37 49 90 28.65 1901 5 25 31 38 24.52 1902 04 117 170 37.57 1903 6 05 94 151 28.09 1904 11 45 01 74 26.14 1905 5 37 57 105 35.36 1900 2 40 78 108 30.87 1907 8 85 150 182 35.10 Total : 19 73 879 1339 2028 Average : 4 46.2 70.4 106.7 30.75 The data for 1905, 1906 & 1907 from Sanitary District tabu- lation of flow through Des Plaines 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 34.00. The average rainfall for the 65 years, 1843 to 1907, is 33.9. It will he reinemhered that this gauge, as the witness stated, ‘^was about half a mile above the Township line.” (Abst., p. 806), — that is, it was a half mile above the Head of Navigation,” marked by the United States suiweyor in 1821. It represented the river at a place half a mile above the travel of the fur traders and vog- (i(/o!ey’s e^ Idence iihowed that at the lowest })oint in tlie river, — one-half mile above the ‘‘Head of Xavigaticn” on the bar, and a short distance below the Hoffman Dam,- — there were 72 days in tlie Id years from 1887 to 1907 when the rvater stood so deep at this point that it v/ciild cause a stream five feet deep to run over the Chicago Divide irdo the Chicago River; tliat there were 4() days per annum during those 19 years when the water stood so deep, that it would give a stream 15 inches deep running from the Des Plaines into the Chicago River, but for the Clgden Dam. Now, it is no sort of reply to this testimony, which essentially corroborates the report of Col. Long, the Report of (xraham and Phillips, the Narrative of Lieut. Hopson, and the narratives of Marciuette, Joliet and Howard to say that at the other extreme of the year periods varying from one to six months could be found Avhen the water at this point above the head of navigation would lie six inches deep or less. 4 11. TllK TWO KXISTIN(J DAMS AT MARSEII.LES AND .JOfJIOT ARE SlJli- JECT TO REMOVAIi BY THE STATE FOR NAVIGATION PURI’OSES. THERE- FORE TtlE NAVIGABILITY OF THE RIVER IS TO BE DETERMINED INDEPEND- ENT OF THEIR PRESENCE. The only dams between Chicago and St. Louis, njoon which any private rights are asserted, and which are not adequately provided with navigation locks, are the dam at Marseilles and Dam No. 1 at Joliet. I. The dam at Marseilles, by the Act of March 9, 1867, was limited thus : ‘‘Provided that this Act shall not be so held or construed as to prevent the State from taking possession of said dam, or removing it at any time for improving said Illinois Biver for purposes of navigation, etc.” 2 Pr. L., 1867, pp. 810-811. (This was amended June 19, 1869 (4 Pr. L., 1869, p. 498) so as to provide reasonable compensation.) IT. The Case of Dam No. 1 at Joliet. As to Dam No. 1, the evidence shows that it was begun by the Canal Commissioners in 1840 and finished in 1841. 5 Gilm., 553; and see Canal History: Canal Rep. 1900, p. 155. The incidental water power developed thereby has been the sub- ject of conveyances, as follows : Canal Trustees to Henderson Howk and John Preston. Lease of duly 17, 1855; 20 years from July 17, 1856, ends July 17, 1876; ^ With provision for conferring a renewal for term of years; For same rent as highest and best bid- der otiers; (And in defaut of other bid. at same rental as first term), Which would end July 17, 1896; With provision for conferring a second renewal for 20 years more — ^on like terms — to end July 17, 1916. Canal Commissioners to G. W. Hyde, Assignee. Purported renewal, on August 10, 1867 ; For 20 years from July 17, 1876. Canal Commissioners to Economy Light and Power Company, as Assignee. Purported renew^al, on October 3, 1896; For 20 years from July 17, 1896 ; By Canal Commissioners. (See Transcript of Eecord, pp. 5486-5198; xVbstract, pp. 1675 to 1679, inclusive.) The Canal Trustees assumed to make a lease beginning one year in fiitiiro, for twenty years, with a floating conditional i^riv- ilege of renewal for twenty more — making forty— and another conditional privilege of renewal for twenty more— making sixty. The lease was made July 17, 1855, by the Trustees, for the term to begin July 17, 1856, and to end July 17, 1876. 1. The lease was void ah initio. It was a lease to begin in 4:55 fiihiro. T'lie Canal Trustees had no power to make leases to })egin in fntnro. Rutz V. Kehn, 143 111., 538, 567-8. 2 Sngden on ‘‘Powers” (3rd Am. Ed., from 7tli London), 310, 346. Cli. 18, Sec. 10 (8th London Ed., p. 749), and cases there cited. The Kntz case was one of the statutory trustee to lease the Ca- hokia commons. This Court applied the rule of the common law that a trustee of a power could not make leases to being in futuro; and that the statutory trustee was strictly limited by the rule. The second period of twenty years, if it should take effect, was to begin July 17, 1876, and end July 17, 1896. The third period of twenty years, if it should take effect, was to begin July 17, 1896, and end July 37, 1916. The title of the Trustees ended by reverter to the State, under Section 19 of the Act of 1843, upon the completion of the canal and payment of the canal debt, without any deed. The trust was formally terminated and the property returned by the Trustees to the State in 1871. Canal History, Commissioners’ Eeport of 1900, p. 208. Transcript, p. 6443; Abst., p. 1909.) See also Act of April 22, 1871 (Laws of 1871-2, p. 215; Canal Comp., p. 148), entitled: “An Act to settle up and close the trust of the Board of Trustees of the Illinois and Michigan Canal.” The State resumed possession of the Canal in 1871, and has exercised full control thereof ever since. See sundry statutes in the Canal compilation from the Act of April 22, 1871, last cited, onwards. 2. There was no assignment of the lease. 3. With the termination of the trust, the powers of the Canal Trustees ceased. By the Act of March 7, 1872 (L. of 1871-2, p. 213; Canal Com- pilation, p. 152) entitled: “An Act relative to the powers and du- ties of the Canal Commissioners relative to the Illinois and Mich- igaii Canal, the lock and dam at Henry, and the improvement of tlie Little Wabash River. The Legislature provided as follows : ^^Said Commissioners shall have power to lease to the high- est and best bidder any water power and lands and locks connected therewith belonging to the State, for any period not longer than fifteen years; ^'Provided, however, before any lease shall he made, public notice shall be given of such lease for at least sixty days in some newspaper published in the neighborhood.’’ In 1874 the State passed the Act 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 March 27, 1874, and enforced July 1, 1874. Rev. St. of 1874, p. 188. This statute, with amendments, has been in force ever since. As originally passed in 1874, it contained the provision for leasing water power to the highest and best bidder, with the re- quirements of thirty days’ advertisement in a newspaper, and the limitation : “Ho lease shall be for a period exceeding ten years, but the Commissioners may provide for the extension of any lease from time to time, not exceeding ten years at any one time, at a rent to be fixed by appraisal, etc. * * * j^ll leases of water power and extensions thereof shall be subject to the right of the Commissioners to resume without compensation to the lessee the use of any such water power for the purpose of the canal, and also wholly abandon or destroy the work, by the construction of which the water privilege shall have been created — ^whenever in the opinion of the Legislature such work shall cease to be advantageous to the State. ’ ’ This provision has remained part of the statute ever since. In 1899, by an amendment, the length of such new leases was limited to a period not exceeding twenty years. (Act of April 21, 1899, L. of 1899, p. 82; Canal Comp., pp. 173-4.) 4. The act of the Canal Commissioners on August 10, 1876, pur- porting to make a renewal agreement with one G. W. Hyde for a term, or reneival, for twenty years from July 17, 1876, was in vio- lation of the statute. 5. The act of the Canal Commissioners on October 3, 189G, pur- porting to make a renewal of the lease with the Economy Light and Power Company for a term of twenty years from July 17, 1896, was in violation of the statute. 6. Both purported renewals were really new leases and were subject to the power of the State to resume. Act of 1874, R. S., Ch. 19, Sec. 8, Cl. 6, quoted above. The provision for a renewal was a floating conditional privilege by the Trustees, and they ceased to exist before the conditions were complied with. There was no privity of contract for renewal between either the lessees or their assignee on the one hand, and the Canal Commissioners on the other. An inchoate right to contract with an agency of the State in the future is not itself a contract conferring a vested right under the constitution. Galveston, etc., Uy. Co. v. Texas, 170 U. S., 226. Bank of Commerce v. Tennessee, 163 U. S., 416. Pearsall v. Great Northern By. Co., 161 U. S., 646. The courts have repeatedly held that the Legislature may repeal laws authorizing the donation of such privileges, although invest- ments have been made thereunder, the contract not having been actually carried into effect. City of Chester v. N. C. S W. B. R. Co., 182 111., 382. Washingtonian Home v. Chicago, 157 111., 414. Aspinwall v. Daviess, 22 How., 364. Wadsivorth v. Supervisors, 102 U. S., 534. Norton v. Brownsville, 129 IT. S., 479. Wade V. Walnut, 105 U. S., 1. Concord v. Portsmouth Savings Bank, 92 U. S., 625. Falconer v. Buffalo S J amestoivn R. R. Co., 69 N. Y., 491. Covington S Lexington R. R. Co. v. Kenton County Court, 12 B. Mon., 144.^ Upon failure to secure the completed donation within the time allowed, all rights of the grantee to hold under the renewal clause lapsed. Atchison St. Ry. Co. v. Nave, 38 Kans., 744; 17 Pacific, 587 (1888). Wilmington City Ry. Co. v. Wilmington S B. S. Ry. Co., 46 Atk, 12 (Del. 1900). SL Louis V. Western Union Telegraph Co., 14-8 U. S. 92. iMinersville Borough v. Schuylkill, etc., lly. Co. (Pa. 1903), 20r) Pa., 294; 54 Atl. 1050! Tlie (4inal Trustees held as trustees not only for the bond hold- ers, but also for the State, and acted in tlie exercise of a govern- mental power, under delegated authority, and as the agency of the State. They had no implied powers. Therefore they had no implied power to grant a right to obtain a contract in future after the completion of the trust. Walla Walla v. Walla Walla Water Co., 172 IT. S., 1. Rogers Park Water Co. v. Fergus, 178 111., 571; Ibid 180 IT. S., 624. People ex rel v. Siilnirhan R. R. Co., 178 111., 594, 606-7. Chicago General Ry. Co. v. Chicago City Ry. Co., 62 111., App. 502. Davis & Farnum Mfg. Co. v. Los Angeles, 189 U. S. 207. Bienville W. S. Co. v. Mobile, 186 U. S., 212. Wabash R. R. Co. v. Defiance, 167 U. S., 88. LIunt V. Chicago H. £ D. Ry. Co., 121 111., 646. This rule was applied by Judges Grosscup and Je-nkins, limit- ing the grants of franchises by the City of Chicago to Traction Companies of the City to a period of twenty years, insofar as the streets had not been specifically designated and work done there- under prior to the re-incorporation of the City under the general incorporation Act which limited such grants to twenty years, in the year 1875. Govin V. City of Chicago, 132 Fed. Pep., 848 et seq. In Blair v. Chicago, 201 IT. S., 400, 473-4, the Supreme Court recognized the correctness of the decision of Judges Grosscup and Jenkins, insofar as they applied this- limitation and reversed the decision below because it did not carry this limitation far enough. At page 488-9 the Supreme Court applied the same limitation to the Lake View franchises. The original lease to Houck and Preston gave, at most, a pro- vision for conferring a conditional privilege of renewal to be ex- ercised by the Trustees on or before the 17th of July, 1876. 7. It could not be renewed after it had expired. The original lease provided, at most, for the renewal to be 4:v.) grantod, upon wliicli ienns tlioreiii iiainod />// Hut 'I'rus/ras, in (*a.sc‘ they liad not therotofoi’e terminated tlieir trust. Tlieir [)owers of charging the })roperty of the State insofar as the cliarge liad not hecome tixed prior to the termination of the trust, ceased with the termination of the trust. 8. They could not and did not impose upon tiie Sovei*eign State a contract binding upon the reversion of the property, after the mortgage had been paid off, the trust diseliarged and the prop- erty returned to the State. G. W. Hyde, purporting to claim as assignee of Howk and Preston, needed, and obtained a new contract, not from the Trus- tees but from the Canal Commissioners in 1876. There was no contract by the Canal Commissioners to grant a renewal. As a new leasing by the Canal Commissioners, their action in 1876 was in violation of the statute of March 27, 1874, which limited such leases to ten years; and which required a fresh advertisement , and letting to the highest bidder. Hyde, in taking the new lease in 1876, took it subject to the pro- vision of the statute of 1874 (Section 8, Clause 6), which made: ^‘All leases of water power and extensions thereof subject to the right of the Commissioners to resume without compen- sation to the lessee the use of any such water power * * and also wholly abandon or destroy the works * * * when- ever in the opinion of the Legislature such work shall cease to be advantageous to the state.” The Economy Light & Power Company in 1896 took nothing hj the renewal agreement made October 8, 1896, purporting to renew the former lease. It claimed through Hyde, who, as we have seen had taken nothing. The lease in 1876 to Hyde had itself already expired, if it ever had any validity. The power of the Commissioners to make a renewal, if any such power existed, could not be exercised after the thing to be renewed had expired. Rutz S Kehn, 143 111., 558, 567-8. The new lease, styled ”a renewab” made to the Economy Light & Power Company, October 3, 1896, violated tlie Act of 1874 as amended June 19, 1891, which style restricted such leases to ten years, and which also required such fresh advertisement, and Ui) wliicli also 2 )rovidecl that sucli leases laiglit be terminated without coiyiperisatioij, and the dam, by whicli the power was produced miglit be destroyed — whenever in the opinion of the Legislature tlie work should cease to be advantageous to the State. l>ut it is urged on behalf of the Defendant that these leases had I'eceived some judicial ratification by virtue of the ‘‘consent de- cree” between the Canal Commissioners and the Sanitary Dis- trict of Chicago. (Transcript, pp. 5499-5511; Abst., ]). 1680.) But that decree was a “consent decree.” (Transcript, p. 5486; Abst., p. 1676.) A “consent decree” is merely a new form of contract. It does not appear that The Economy Light & Power Company was a party to the case in which “consent decree” was reudered. That company could take nothing by a “consent decree” in a case to which it was not a party. The Canal Connnissioners could not by means of the “consent decree” confer upon the Defendant a right to a water power lease which they could not confer by the lease itself. III. [ THE POLICY OF THE STATE OF ILLINOIS IN KESPECT TO THE NAVIGABILITY OF THE DES PLAINES RIVER AS EVIDENCED BY LEGISLATION. 1839. By Act of Feb. 28, 1839 (L. 1839, p. 208)— the Des Plaines River was declared a navigable stream; — “From the point where it most nearly connects itself with the Illinois and Michigan Canal, to its source, within the boundaries of this State.” The Act provides that the river between these limits “is here- by declared a navigable stream and shall be deemed and held a public highway, and shall be and remain free, open and unob- structed for the passage of all boats and water-crafts of every description. ’ ’ 1839. It was the same Legislature that two days earlier passed 441 the Aet of Feb. 2(), 1839 (L. 1839, f). 177; Canal Comp., p. 59) : ^‘To Amend tlie Several Laws in Keiations to the Illinois and Michigan Canal,” (Clause 11 of Section 2), and this Act provided that ‘‘Lands situated upon streams wliicli have been meandered by the Surveys of Public Lands by the United States, shall be considered bounded by the lines of those Surveys and not by the streams.” The streams to which this applied were, the Illinois, Kankakee, and the l)es Plaines. As to the Chicago Kiver, the proof is not clear. By it the Legislature, which in the same breath declared the Des Plaines navigable, itself drew the line bounding future sales of lands thereon. At the time of the passage of this Act of Feb. 28, 1839, the Up- per Basin and Dam No. 1 had not been built. The recommendation of Engineer Gooding, made Dec. 9, 1836, to merge the canal into the river at its mouth (See History of Canal, Eeport of 1900, p. 124) had been referred to the Committees of the two Houses of the Legislature; and September 15, 1837, the Senate Committee had reported against it, at the same time stating that the House Committee reported in favor of it. Mr. Gooding’s Report of Dec. 10, 1838, states (Canal History, Report of 1900, p. 155), in describing the proposed basin: “Lock No. 4 brings the canal to the level formed by the pool of Dam No. 1. A short distance below said lock, the line runs into the channel of the Des Plaines River, which ivill here he turned to the rights and the whole of the water forced into the channel upon the west side of Normand’s Island. * * * The rock excavations in the bed of the river from the point where the canal enters it to the upper end of said island aver- ages about 21 ft. in depth, but when the river is turned, the excavation ivill he attended with no particular difflculty. 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 No. 2, where the Independent Canal again commences. # * * Both dams ivill he made of good cut stone masonry, laid in hydraulic cement.” Dam No. 1 and Dam No. 2 which were not built in December, 1838, were not built until after this statute of Feb. 28, 1839, had been passed. (Mr. Gooding speaks (Canal Rep. 1900, pp. 204-6) in his report dated Dec. 1, 1842, of the construction “of the perfectly 442 watcM- tight (lam at Juliet,” — whicli a])i)areiitly refers to Dam No. 1 -) -It ai)i)ears by tlie statement of facts in Caudl Trustees v. Haven, o (lilman bbJ, that ‘D4ie stone for tlie said dam on section nine wliich is a cement and cut stone dam was commenced being quar- ried the same season and the dam was commenced the following season (1841) in the spring and finished in the fall of 1841.” Cooley Ex. 2 and the other maps as well, show that Dam No. 1 was on Section 9. The development of the basin and construction of the canal into the same came later. The work was suspended and never resumed until the Canal Trustees took it up in 1845 and finished it in 1848. As subsecpiently built this basin proved the point of nearest connection between the river and the canal. At the time the stat- ute was passed, the location had not been finally determined, and the intent of the statute was that the river from whatever point should prove its final union with the canal northward to its source, should be a navigable stream connecting with the canal at that point to the union ; and a free public highway. That is, the point of union was still an unsettled point and the whole of the river was impressed so far as the Legislature could impress it, with the continued public use of navigability. That the work of the Trustees began in 1845 is shown by the Canal History Report of 1900, pp. 208-9. The supplemental Act to induce the Trustees to act was passed March 1, 1845, and the first board of Canal Trustees was chosen by the bond holders May 27, 1845; and the first State Trustee was appointed June 10, 1845. Thereafter, the work began by the choice of IVilliam Gooding as chief engineer July 23, 1845. (Ibid., p. 208.) It was contended contra that this statute spoke only of the river from Dam No. 1 northward. We have seen that Dam No. 1 was not then in existence. The statute spoke in futuro, from where- ever the two streams would unite, — subjecting the whole river to the continued public use of navigability. It was declared contra that this statute by implication declared the river free from the point of junction down to its mouth un- navigable by implication ; and 6 California 443, and 21 Pacific Re- - 1 4 »> ])orl(M- wcM’o cited to tlu' (dTcM't tliat wli(‘i-(^ tli(i statute; had henui passed (lec'lariiig- a river Tiaviga])le from its mouth upward to- wards its source to a certain point, that that statute })y irnplicatioii is a de(;laration that the remainder of tiie river above that f)oint is not navigable. It was urged below and apparently with success that the Court ought to reverse the rule of the California cases, and say that from that point down to its mouth the river is by implication not navig- able. The California cases went upon the simple and obvious fact that the river grows smaller and shaHower and more difficult as you go upward to the source. The converse is equally true : that the river grows larger, deeper and generally better adapted for navigation as it goes downward toward its mouth, — and so we say : 1. That the point of junction mentioned in the statute was a point to be fixed in futuro and that the statute covered the whole river, as the point of junction might yet be fixed at the mouth, as Engineer Gooding had recommended. 2. That if the river from its source down to the point of union, either in Joliet or in Lake Joliet, or at the mouth of the DuPage, or at the mouth of the Kankakee, was fixed as the point of union, — that from that point onward the river had more water and was more navigable than it was above, and the declaration that its slender upper portions were navigable by law, a fortiori, are de- clared its larger and fuller portions navigable. 3. That it is a barbarism to suggest that the Des Plaines Kiver is navigable down to the present point of union with the Illinois and Michigan Canal in Joliet; and that the Illinois River is a navigable stream up to the Forks of the Des Plaines and Kanka- kee; and that the 15 miles in between are not also navigable. We have seen that in the laws of 1822 the Sangamon River was declared navigable, and that in Clark v. Lake, 1 Scammon 229, the Court enforced the Act and referred to the Act itself, without other evidence, as establishing the navigability of the stream. 1845. March 3 the Legislature passed an Act, ^‘To authorize Stephen Forbes to construct a dam across the Des Plaines River in Cook County.” This is sometimes called the Kiverside Dam, sometimes called the Hoffman Dam, and sometimes called the Forhes Dam. It tixes its location on the section line at Eiverside. This dam is a short distance above the point marked ‘‘Head of Navigation” in the Field Notes of United States Survey of 1821. The Act has annexed the proviso “That this Act shall not operate to i^revent 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/^ “Any other purpose” includes use for navigation, and plainly the intention was to protect the right of navigation. 1867. March 9, the State enacted the statute entitled: “An Act to Incorporate the Marseilles Land and Water Power Company,” which authorized the building of a water power dam at the Grand Eapids of the Illinois at Marseilles. The Act contained the following proviso : ‘ ‘ That this Act shall not be so held or construed as to prevent the State from taking possession of said dam or removing it at any time, for improving said Illinois River for purposes of navigation^’ 1869. March 27, an Amendment to this Act was passed, pro- viding: “When the State shall take possession of said Company’s dam for navigation purposes, the State shall cause a reasonable compensation to be paid to said Land & Water Power Company.” This Act expressly protected and reserved the right of the State to use the river for navigation. The dam, however, was erected and has since been strengthened and renewed ; and while the State protects the right of navigation, the fact of navigation has been suspended, as to boats coming from the one side of that dam to the other, ever since, — except as boats have been carried around to the dam, or taken past it in the Illinois and Michigan Canal. So, Dam No. 1, erected in 1841 and subjected to lease* in 1855. is built by the State, itself, and is State property, and is a work erected in aid of navigation, and for incidental water power; but the navigation which it aided was turned from the river at that point, to go down the canal, past the two dams, and then into the Illinois River at LaSalle. The invalidity and terniinahility of the lease is elsewhere shown. And while the right of navigation was expressly reserved as to the private dam, and is inherently reserved as to the public dam, — the presence of these two dams in the river for the last forty years has prevented through navigation in fact, from extending from below one dam to the point above the other dam, — and vice versa ; and a generation of men has grown up and grown past middle life, who have never seen a boat go through upon the river from Chi- cago to St. Louis, or from Peoria to Lockport. And out of this absence of through travel by river in fact has grown a very general impresison that no such through travel ever occurred, and that it was never possible for it to occur. All of which impression is contrary to fact. 1861. At the Legislative Session begun January 7, 1861, the Legislature passed the following Joint Resolution: Joint Resolution in Relation to the Improvement of Navi- gation OF THE Illinois River. Resolved hy the Senate, the House of Representatives Con- curring Herein, That the board of trustees of the Illinois and Michigan Canal be and are hereby authorized and instructed to cause prompt and thorough surveys, examination and esti- mates to be made of the Illinois River, and of the Illinois and Michigan Canal, and also of portions of the Des Plaines and Chicago rivers, and of the portage hehveen said rivers, for the purpose of accurately ascertaining the comparative value, cost, efficiency, benefits and advantages, direct, prospective and incidental, of the different methods proposed or desirable for improving the navigation of the Illinois River, by dredging or excavation of the channel and wdng dams, or by supplying water from Lake Michigan, through the enlargement and deep- ening of the Illinois and Michigan Canal, or otherwise, or by opening a channel from Lake Michigan, hy way of the south branch of the Chicago river and Mud lake to the Des Plaines river, and doivn said canal to a point that ivill secure a free, floiuing, ample and never-failing supply of water, sufficient for the navigation of the Illinois river at all seasons and times, when not obstructed by ice. Such surveys, examinations and estimates to include a plan of enlargement of the Illinois and Michigan Canal, sufficient for the introduction and use of stern-wheel river steamers and propellers upon it, and also of side-wheel river steamers, and to include also an estimate for the channel hereinbefore mentioned, of sufficient size to admit of fall and free steamboat navigation from tlie Illinois river to (diieago and Lake Miehignn, as well as a size suffi- eient for supplying water for all of the deficiencies of naviga- tion in the llilnois river, at all seasons. And the said trustees are hereby antliorized to ernx)loy efficient and competent en- gineers of high character, to make such surveys, examinations and estimates, and to avail themselves, in their labors, of all reliable surveys and data heretofore made and obtained of the said Illinois river and Illinois and Michigan Canal, and to re- port the result of all such examinations and surveys to the Governor of the State, as soon as the same shall be completed, and to furnish ample abstracts thereof to the newspapers of the State for publication, so far as may be desired by them. And the said board of trustees are hereby authorized to pay the necessary expenses of said surveys, estimates and exam- inations out of any funds that may be received by them from the earnings of the Illinois and Michigan Canal: Provided, that the expenses thereof shall not exceed the sum of six thousand dollars : Provided, that no payment shall be made by the said trustees, for or on account of any liability hereto- fore incurred or moneys heretofore advanced for surveys, XDlats, or otherwise, exceeding twelve hundred dollars. (Pub. Laws of Ilk, 1861, pp. 277-8). 1865. Feb. 16, the Legislature passed the statute authorizing the City of Chicago to make the Deep Cut, of which the material portions are as follows : Act to Provide for the Completion of the Illinois and Michigan Canal, Upon the Plan Adopted by the State IN 1836. (Appro^ted February 16, 1865, in Force April 16, 1865.) (Preamble.) Whereas, it has been represented that the City of Chicago, in order to purify or cleanse Chicago river, by drawing a sufficient cpiantity of water from Lake Michigan, directly through it, and through the summit division of the Illinois and Michigan Canal, would advance a sufficient amount of funds to accomplish this desirable object; and, lAliereas, the original ]3lan of the said canal was to cut down the summit so as to draw a supply of water for naviga- tion directly from Lake Michigan, which plan was abandoned for the time being, after a large part of the work had been executed, only in consequence of the inability of the State to ]irocure 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 principal supply of water to be ob- tained through the Calumet feeder, subject to serious contin- 447 goiu'ies, and hy piini[)ing onto ilie snnnnit with the liydi-aiilic works at I>ridgeport ; now, tliererore, (Summit Division to be Oompueted.) Sootion 1. I>o it en- aotod by tlio People of the State of Illinois, represented in the (lenerai Assembly: That to secure the completion of the sum- mit division of the Illinois and Michigan Canal, upon the orig- inal ‘deep cut” plan, with such modifications and changes of line, if necessary, as will most effectually secure the thorough cleansing or purification of the Chicago river, and facilitate the execution of the work, the City of Chicago through its con- stituted authorities, may at once enter into an arrangement with the board of trustees of said canal, with a view to the speedy accomplishment of the work. * * * (Amount Expended to be Lien — Proviso.) Section 4. The amount expended by the City of Chicago in deepening the sum- mit division of the canal, according to the plan adopted by the Canal Commissioners in 1836, shall be a vested lien upon the Illinois and Michigan Canal and its revenues, after the pay- ment of the present canal debt; and the net revenues of the canal shall all, thereafter, be applied to the payment of the principal and interest of the same expended in accomplishing the object of this Act, until the whole amount is reimbursed to the city: Provided, the cost shall not exceed two and a half millions of dollars. (State May Eeeund.) Section 5. The State of Illinois may at any time relieve this lien upon the canal and revenues, by refunding to the City of Chicago the amount expended in mak- ing the contemplated improvement and the interest thereon. (L. 1865, p. 83: — Canal Laws, pp. 135-136.) 1867. Feb. 28, the Legislature ]iassed the Elver Improvement Act, which among other things provided as follows : An Act for Canae and Eiver Improvements. (Approved and in force February 28, 1867.) ^ (May Change Canae.) Section 7. Said Canal Commis- sioners are hereby authorized and empowered to make such changes in tbe location of the present canal or adopting a river improvement instead of the canal, hetwee^i Chicago and. La Salle, as may he deemed expedient. (L. 1867, p. 81; Canal Laws, pp. 138-139.) This Act by Section 10 authorized the construction of locks and dams in the Illinois Eiver, between LaSalle and Peoria. Under this Act the dam and lock at Henry were built, for the use of which (by Act of March 7, 1872, Canal Comp. p. 152; L. 1871-2, p. 213) the Canal Commissioners were authorized to charge a toll. 1871. October 20, the Legislature passed The Act to Eelieve the 448 City of Cliicago, l)y taking over the Dee]) Cut as State property and i-eiin})ursing to the City the cost of making the Deep Cut, — the material portions of whicli are as follows: An Act to Relieve the Lien of the City of Chicago Upon THE IlIUNOIS and MICHIGAN CaNAL AND REVENUES BY RE- FUNDING TO Said City the Amount Expended by it in IMaking THE Improvement Contemplated by ^‘An Act to Provide for the Completion of the Illinois and Mich- igan Canal Upon the Plan Adopted by the State in 1836/’ Approved February 16th, 1865, Together With THE Interest Thereon as Authorized by Section Five of Said Act and to Provide for Issuing Bonds Therefor. (Approved and in Force October 20, 1871.) (Preamble.) Whereas, the City of Chicago has expended a large amount of money, to-wit: the sum of two and a half millions of dollars, to secure the completion of the summit division of the Illinois and Michigan Canal, under and pur- suant to the provisions of said Acts so approved February six- teenth, A. I). 1865, and Acts Supplementary thereto; and, whereas, the said city has a vested lien upon the said canal with its revenues, subject to any canal debt existing at the time of the passage of said Acts; and, whereas, said then ex- isting debt due by the State has been fully paid and cancelled; and, whereas, the canal trustees have delivered to the State of Illinois possession and control of said canal ; and, whereas, it is provided by section five of said Act as follows: ^^The State of Illinois may at any time relieve this lien upon the canal and revenues by refunding to the City of Chicago the amount expended in making the contemplated improvement and the interest thereon;” now, therefore, (Appropriation — Bonds to be Issued — Fmergency.) Sec- tion 1. Be it Enacted hy the People of the State of IllinoiSy Bepresented in the General Assembly: That the sum of two million, nine hundred and fifty-five thousand, three hundred and forty dollars, with interest thereon until paid, be and the same is hereby appropriated for the purpose of relieving the lien as aforesaid, being the principal expended and the in- terest thereon, which said sum is hereby refunded to said city ; and when paid said city shall execute and deliver to the State of Illinois a proper release of said lien to the satisfaction of the Governor. * * * M^hereas, by reason of a great conflagration in the City of Cliicago the public buildings, bridges and other public improve- ments have been totally destroyed and the business of the courts is suspended, whereby an emergency exists as a reason why this Act shall take effect before the first day of July next; therefore. r>K \t KiTirriiKiR !^]na(''I'mi), l^liai lliis A('t shall lake* (ifT(H*i and he in forc'e from nnd artcM* its passagf'. ( L. 1H71, p. 17t); (kuial Laws, pp. 149- 17)0.) 1879. At the Scission of the Legislature ('onvened danuarv 8, 1879, the Legislature passed the doint Hesolution relative to the Illinois and Miehigan Canal, x)roposing the cession of tlie Canal to the Federal Government. (Laws of 111., 1879, pp. 321-322.) 1881. The Legislature at the Session convened January 5, 1881, ])assed the following important resolution, concerning the uses of the Des Plaines River : ^‘Concerning Chicago Sewage in Illinois and AIichigan Canal. Whereas, the State of Illinois, in general assembly, did, on the sixteenth day of February, 1865, grant and authorize the City of Chicago, in the State of Illinois, to deepen the Illinois and AIichigan Canal for the purpose of, and with the intent to better the system of sewerage of the said City of Chicago by permitting a free flow of water from Lake AIichigan through the Chicago river and said canal to the Des Plaines and Illinois Rivers; and the City of Chicago did perfect said improvement in conformity with said permission; and Whereas, the great fire in the said City of Chicago on the eighth and ninth days of October, A. D. 1871, did so greatly damage the assessable jiroiierty of a very large number of its citizens and tax])ayers, and the Peo])le of the State of Illinois did, by its general assembly, refund to the said City of Clii- cago the amonnt of the cost of dee])ening the Illinois and Alich- igan Canal, said sum refunded being in gross two millions, nine hundred and fifty-five thousand, three linndred and forty dollars; and Whereas, the deeiiening of the canal as aforesaid has ]>roved to be totally inadeejuate for the purposes intended, and the large amount of sewage of the Chty of Chicago being far greater than the ca])acity of the (*anal and the water now jiass- ing through it to deodorize and render inocnoiis; and Whereas, the foulness of the water annually causes the death of millions of fish in the Des Plaines and Illinois rivers, that float to the shores and decay; and Whereas, said sewage, in an entirely nndecomposed and ]mtrid mass, is carried by the current of the canal into the Des Plaines river, and thence into the Illinois river, and in its foulest conditions is thus transported to and below the City of Peoria, in said state, rendering the air, at all })oints along its passage, so impure and foul as to be exceedingly offensive, and taking with it germs of disease of all kinds prevalent in the City of Chicago, and thus spreading them hroadc'ast tlii'ougli the entii-e Des Plaines and Illinois river valleys, eansing' tliei'eby iniu'h illness as well as poisoning of the blood, and debilitating the systems of 20(3,000 }jeoi)le; and WiiKp.EAS, the earefnl investigation leads our [)eople to fear that an e})ideinie may spread over said section of the State of Illinois from the causes above stated; and Whereas, in addition to the above distress, there has been a great loss of pro])erty, business industries, and to the com- munities in said region, by reason of the causes lierein men- tioned ; and Whereas, prior to the deepening of said Illinois and Mich- igan (3anal, the irater necessarij for all purposes of navigat- ing said canal and propelling of machinery was obtained from the Des Plaines river and the Calumet feeder, through Lane’s Lake; and AVhereas, the bed of the Des Plaines river, at the Summit and thence westward along the line of and adjacent to the canal, is, at a low state of water, eight (8) feet above the sur- face level of the canal, and ivill average a supply of ivater sufficient for all canal and power purposes during the seasons of navigation; AVhereas, the supplying of the canal from these sources will so dilute and weaken the sewage of the city of Chicago, as to greatly relieve it of its foulness and stench, to the great delight, relief and health of the people near to and bordering upon the line of the canal, the Des Plaines and Illinois rivers ; therefore, be it Resolved by the Senate, the House of Representatives Concurring Herein, That the Board of Canal Commissioners of the Illinois and Michigan Canal, be, and they are hereby directed to cause sluice-ways of sufficient capacity, with the proper guard-gates, to he opened from the Des Plaimes River to the canal, at or near the Summit, in Cook County, and at or near Lemont, in Cook County, and also to construct a dam across the former Calumet feeder at such suitable point as will cause the waters from Lane’s Lake to flow into the canal; That said Canal Commissioners shall immediately commence, construct and improve said sluices and feeders in the order named, and pay for the same out of any moneys in their hands or control as Canal Commissioners, resulting from the earnings of the canal. The amount to be expended as above designated in the pros- ecution of said improvement shall not, however, exceed the sum of ten thousand dollars: Provided, that the Canal Commissioners shall first confer with the mayor or other proper authorities of the City of Chi- cago, and if said city shall proceed without delay to cause a flow into the canal from the Chicago river sufficient to dilute 451 and piirily llu' waters, and ilins r(‘ni(‘dy ilie (wils eornplained of, said llovv^ to bo not l(\ss than (50, 000 (nil)i(‘ f(‘(‘t })(‘r rninnto, inelnding the ordinary tiovv into the eanal fi*oni the (diieago river, or so nineli thereof as in tlieir judgment said eanal can earry, and if this sliall be aceoinplished by the first day of September, 188.1, the Commissioners shall accept it in lieu of obtaining a supply of water from tlie other sources named: Pkovided, Further, that said Commissioners are liereby di- rected to take care of the 60,000 cubic feet ])er minute alcove contemplated, if so furnished by the City of Chicago: Provided, Further, that the adoption of this resolution shall not commit the State to a system of permanent drainage of Chicago sewage through either the canal or Des Plaines or Illinois rivers, but that the state reserves the right to require the City of Chicago, in future years, to take care of its sew- age through other channels: And Provided, Further, that if the said City of Chicago shall erect pumping works for the purpose of causing such flow as aforesaid, the Canal Commissioners shall allow the said city to erect pumping works upon the canal lands in Bridgeport; and said city shall support, control and manage said pumping works, subject to the direction of the Canal Com- missioners, relative to the amount of water to be received into the canal, from time to time, as the exigencies of the canal may require, but at the expense of' the said City of Chicago : Provided Further, that the City of Chicago, its officers, agents or employes shall derive from this resolution no right to control or exercise any authority over any of the gates, locks or dams of said canal.” (Laws of 1881, pp. 159-161.) 1881. At the session of the Legislature begun January 5, 1881, the Legislature passed the Joint Resolution instructing the Attor- ney General to take ])roceedings to ascertain the rights of the State against the Kankakee River Improvement Company. In pursuance of this, the case of People v. Kankakee River Im- provement Company, 103 111., 491, was brought, which resulted in the abrogation of the charter of chat company. This case is note- worthy as a precedent for the Resolution under which the present proceedings were brought — which Avill be noted hereafter; and it is further noteworthy for the following ruling: ”It is suggested that if the State should take into its hands the portion of the work which has been completed it would fall into decay and ruin, from inalhlity of the State to make re- pairs and keep it up, because of the |)rovision of the constitu- tion of 1870, that Ahe General Assembly shall never loan the credit of the State, or make appropriations from the treasury iliereof, in aid of railroads or ('aiials.’ Wo do not understand that tins provision would apply. It does 7iot respect rivers ., — ond }re do not eon.sider that a river t)ecomes a canal from hav- ing its navigation improved by artificial means.” (103 111., oil.) This is a jndioial deterinination in a State ease that a river does 'not become a canal by being improved. Applying this to the Land (Irant of 1827, ‘^granting a quantity of land ecpial to one-half of five sections in width on each side of said canal, * * * from one end of the said canal to the other. (-1- U. S. Statutes at Large, p. 234-, Canal Compilation of Laws, p. 2), it is plain that an improvement of the river would not have secured the Land Grant for that portion of the water way, which was so constructed in the river, or for which the river was utilized. It was only by building the Independent Canal the entire length of the line that the Land Grant for the entire length of the line could be obtained. The same session of the Legislature memorializes Congress to appropriate moneys to improve the Kankakee and Iroquois rivers. (Laws of 111., 1881, p. 163.) 1882. April 28th, the Legislature passed an Act ceding tlie Illi- nois and Michigan Canal to the United States, subject to a refer- endum vote of the people. (Laws of 1882, p. 12.) It is understood that the referendum failed to approve the Act, by the operation of that principle of referendunis which makes a failure to vote on the law a negative vote. 1883. The Legislature passed a Joint Resolution reciting that the owners of the East bank of the Des Plaines, at the Adam dam, were using the whole of the water power, when entitled only to half, and directing the Canal Commissioners to assume possession and control of half the water power as property of the state. (Laws of 1883, p. 184.) In 1886-8 the U. S. Government built dams and locks at Kamps- ville and La Grange to improve the navigation of the Illinois (U. S. PMgr’s Rep., 1887, Vol. Ill, pp. 2119 et seq.; 111. Canal Rep., 1900, p. 212.) 1887. June 6th, the Legislature pa.ssed the Act organizing the City of Cliica^'o into a dnilnago district. (Caws of 1887, [)a^o 126.) This was a precursor of the Act of 1881) organizing the Sanitary District of Chicago. The Act contained the following provisions, among others : Seiction 2. Such corporate authorities may lay out, con- struct and maintain a cut-off dr ami or ditch for the diversion of f ood ivaters of the Des Plaines River into Lake Michigan, at some point north of the City of Chicago, for the relief and in aid of the drainage system established or to he established within said district, the location and route, dimensions and capacity of such cut-off to be determined by said corporate authorities. If the location of snch cut-off shall occupy a por- tion of the North Branch of the Chicago Kiver, said North Branch may be widened and deepened as shall be required. Such cut-off or diversion may be so constructed and main- tained as to answer the purpose of a drain for the lands through which it shall pass, and such corporate authorities may allow said lands to be drained into the same upon such terms and conditions as they may determine. Pkovided, such corporate authorities shall not be allowed to interfere with any right of drainage which the owners of land have or would have, if such cut-off had not been made. Sec. 3. No more of the water of the Des Plaines River shall be diverted by any such cut-off than the excess above the ordinary water mark in said stream. At the point of diver- sion there shall be constructed and maintained such dams and sluices as shall control and regulate the amount of such diver- sion at all times.' During dry weather no water shall he di- verted in Lake Michigan, and during floods no more water shall be allowed to pass said point of diversion down the river than three thousand (3,000) cubic feet per second. Sec. 4. Such corporate authorities may construct and main- tain, if the same shall be found desirable and expedient, a dam across what is known as the Mud Lake Valley on or near the west line of sections six and seven, township thirty-eight north, range thirteen east of the third principal meridian, of such dimensions and elevation as may be determined upon. 1889. May 28th, the Legislature ])assed the navigation resolu- tion and the Act to create sanitary distilcts, and to remove obstruc- tions in Des Plaines and Illinois Rivers. These were passed on the same day, and are construed as one enactment. The resolution is as follows : River Improvement, Deis Plaines and Illinois. Whereas, The Illinois River from La Salle to Grafton, is tlio reiniiant of an ancient stream bed bordered })y wide and low bottomed land, niiieli cut ni) by lake, bayou and marsh; an alluvial stream of small, low water volume and sluggish cur- rent, with a declivity of only 26 feet in 225 miles, a declivity so small as to reciuire a large volume of water to maintain an effective channel; a stream which in its natural condition is able to maintain but a small depth through the deposits with which the tributaries constantly tend to clioke the channel ; a tendency ever increasing with the inhabitation of the water- shed and the cultivation and reclamation of lands. AVttereas, The erection of dams with a view to the creation of ])ools of slack water for the purpose of navigation, dimin- ishes the scouring force of the current at medium and low "stages and promotes channel decay, causes deposits in the mouths of tributaries and the more ready overflow of the bot- tom lands ; and generally the tendency is to restore the natural channel of equilibrium at a higher level with great ultimate injury to the valley from overflow and unhealthfulness, a ten- dency already exhibited in a notable degree from the condi- tions created by the dams erected by the State at Henry and Coiqieras Creek, in 1872 and 1877 respectively. Whereas, The completion by the United States of the dams at La Grange and Campsville will raise the general level of the river below Copperas Creek by several feet and promote all those injurious tendencies to channel decay, with overflow and unhealthfulness already exhibited through the agency of the state works at Henry and Copperas Creek. Whereias, The official report of the United States for 1868, showed that it was practicable to obtain by dredging and a minimum low water volume at Peru of 38,000 cubic feet per minute, a channel for navigation of a width of 160 feet and a depth exceeding four feet and the official report for 1880 showed that it was practicable to obtain a channel for naviga- tion 200 feet wide and six feet deep by dredging, and a mini- mum flow of 94,000 cubic feet per minute in the river below Copperas Creek, and that the cost was not materially ditferent from the cost of the improvement by locks and dams. AVhereas, The j^resent addition to the low water volume of the Illinois river througli the summit level of the Illinois and Michigan Canal from Lake ]\richigan more than doubles the volume of water used in the estimate of 1868 for the channel below Peru and adds 50 per cent to the volume used in the estimate of 1880 for the channel below Copperas Creek, and said contribution from Lake Michigan will be increased in the immediate future thus enabling the depth now projected for navigation below Peru to be obtained by channel improvement at moderate cost, and with decided advantage to material in- terests and to healthfulness along the valley. 455 WiiKHiOAS, It is (‘ontoniplatcHl to in(*r(*as(‘ tlio volurtK* from Lake Mi(4ii^an to 500, 000 (*iibio foot por minute within a few years and nltiniatoly to add ()00,000 (*iibi(^ foot oi- more, thus enabling a large de])tli for navigation to be obtained i)y an improved eliannel, will be self-sustaining and self-improving and will discliarge flood water more readily, thus benefiting the bordering lands and increasing the healthfnlness of the valley. Whereas, Works now projected by the City of Chicago will form part of a water-way of large proportions from Lake Michigan via the Des Plaines and Illinois rivers to the Mis- sissippi river, of which the dams and locks upon the alluvial section of the Ililnois river can form no part and which, if allowed to remain, will increase the overflow and be detri- mental to the welfare of the Illinois valley and the interests of the State. Therefore be it Resolved, by the Senate, the House of ReiPresentatives Concurring Herein, 1. That it is the policy of the State of Illinois to procure the construction of a water-way of the greatest practicable depth and usefulness for navigation from Lake Michigan via the Des Plaines and Illinois rivers, to the Mississippi river, and to encourage the construction of feeders thereto of like ])roportions and usefulness. 2. That the United States Is here!)y recpiested to sto]i w6rk u])on the locks and dams at liaCrange at (5im])sville and to apply all funds available and future api)ro])riations to the improvement of the channel from LaSalle to the mouth, with a view to such a deptli as will be of ])resent utility, and in such manner as to develop ])rogressively all the depth ])racticable by the aid of a large water sup])ly from Lake Michigan at Chicago. 5. That the United States is re(|uested to aid in the con- struction of a channel not less than IbO feet wide and 22 feet deep with such a giaule as to give a velocity of 5 miles per hour from Lake Michigan at (diic'ago to Lake doliet, a ])ool of the Des Plaines river, immediately below Joliet, and to ])roject a channel of similar capacity and not less than 14 feet dee]) from Lake Joliet to LaSalle, all to be designed in such man- ner as to permit future development to a greatei' (‘a])acity. Ado])ted by the House May 27, 1889. Concurred in by the Senate May 28th, 1889. (Laws of 1889, ])ages 575-37r).) The ‘‘Act to Create Sanitary Districts, and to Remove 01)stru(*- tions in the Des Plaines and Illinois Rivers” contained, among other things, tlie following provisions: Section 7. The l)oard of trustees of anv sanitarv district oj'^anized uiidor tills Act shall have [)()wor to provide for the drainage of siu'li district by laying- out, establishing, construct- ing oi- maintaining one or more niain channels, drains, ditclies and outlets for ('ariying off and disposing of the drainage (iiK'luding the sewage) of su(‘h district, together with such adjuiK'ts and additions thereto as niay.be necessary or proper to cause such (hiannels or ourlets to accomplisli the end for which they are designed in a satisfactory manner; also to nialie and establish docks adjacent to any naviyahle channel made under the provisions hereof for drainage purposes, and to lease, manage and control such docks, and also to control and dispose of any water-power which may lie incidentally created in the construction and use of said channels or outlets, hut in no case shall said board have any power to control water after it passes l)eyond its cliannel, water-ways, races or structures into a river, natural water-way or channel, or water- power or docks, situated on such river, or natural water-wa> or channel : Peovided, However, nothing in this Act shall be construed to abridge or prevent the State from requiring here- after a portion of the funds derived from such water-power, dockage or wharfage to be paid into the State Treasury to be used for State purposes. Such channels or outlets may ex- extend outside the territory included within such sanitary dis- trict, and the rights and powers of said board of trustees over the portion of such channel or outlet lying outside of such dis- trict shall be the same as those vested in said board over that portion of such channels or outlets within the said district. Sec. 20. Any channel or outlet constructed under the pro- visions of this Act, which shall cause the discharge of sew- age into or through any river or stream of water beyond or without the limits of the district constructing the same, shall be of sufficient size and capacity to produce a continuous flow of water of at least two hundred cubic feet per minute for each one thousand of the population of the district drained thereby, and the same shall be kept and maintained of such size and in such condition that the water thereof shall be neither offensive or injurious to the health of any of the people of this State, and before any sewage shall be discharged into such channel or outlet all garbage, dead animals, and parts thereof, and other solids shall be taken therefrom. Sec. 23. If any channel is constructed under the provisions 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 capac- ity to produce and maintain at all times a continuous flow of not less than three hundred thousand cubic feet of water per iniRute, 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 (‘liaimel shall ('ut thi-oii^ii a Ici-rilory with a ro(‘ky stratiini where siK'h rocky stratum is above a ^‘rade suf- ticieut to pro(lu(‘e a depth of water from. Lake Michigan of not less than eighteen feet, sucli {)ortion of said channel shall have double tlie tiowing ca])acity above provided foi-, and a widtli of not less than one hundred and sixty feet at the bottom capal)!e of producing a depth of not less tlian eighteen feet of Avater. If the population of the district drained into sucli clian- uel shall at any time succeed 1,500,000, such channel shall be made and kept of such size and in sucli condition that it will produce and maintain at all times a continuous flow of not less than 20,000 cubic feet of Avater per minute for each 100,- 000 of the population of such district at a current of not more than three miles per hour, and if at any time the general gOA^ernment shall improA^e the Des Plaines or Illinois PiAmrs, so that the same shall be capable of recehung a flow of 000,- 000 cubic feet of Avater per minute, or more, from said chan- nel, and shall proAude for the payment of all damages AAdiich any extra flow above 300,000 cubic feet of AAmter per minute from such channel may cause to priAmte property so as to saAm harmless the said district from all liability therefrom, then such sanitary district shall vrithin one year thereafter, en- large the entire channel leading into said Des Plaines and Illi- nois from said district to a sufficient size and capacity to pro- duce and maintain a continuous flow throughout the same of not less than 600,000 cubic feet of Avater per minute Avith a current of not more than three miles ])er hour, and such chan- nel shall be constructed upon such grade as to be capa- ble of ])roducing a dei)th of A\mter not less than eighteen feet throughout said (fliannel, and shall hae^e a width of not less than one hundred and sixty feet at the bottoin. In case a channel is constructed in the Des Plaines River, as contem- plated in this sec'tion, it shall be carried doAvn the sloj^ie be- tAA^^een Lock})ort and Joliet to tiie pool commonly knoAvn as the basin, of sufficient width and depth to cari'y off the watei* the channel shall bring doAvn from abo\m. The district con- stiaicting a channel to carry water from Lake Michigan of any amount autliorized by this act mai) correct, luodify and remove ()J)stnicfions in the Des Plaines and Illinois Rirers ndierever it shall be necessary so to do to prevent overflon' or damaye alony said river, and shall i*emove the dams at ifenry and Cop})eras Creek in the Illinois River, befoi*e any water shall be turned into the said channel. And the (hxnal Commissioners, if they shall find at any time that an additional sup])ly of Avater has been added to either of said rivers, l)y any drainage district or districts to maintain a de])th of not less than six feet from any dam OAvned by the State to and into the first lock of the Illinois 1-58 and Alielii^ari ('anal at LaSalle, without the aid of any sucli dam, at low water, then it .sludl be the duty of said Canal Conunissioners to cause such dam or dams to be removed. This act shall not be construed to authorize the injury or destruction of existing water-power rights. Sec. 24. When such channel shall be completed, and the water turned therein to the amount of three hundred thousand cubic feet of water per minute, the same is hereby declared a navigable stream, and whenever the general government shall improve the I)es Plaines 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 interfere with its control for sanitary or drainage pur- poses. Sec. 27 . * * * If any channel is constructed under the provisions of this act, which shall discharge the sewage of a population of more than 300,000 into or through any river beyond or without the limits of the district constructing it, the same shall be constructed in accordance with the provi- sions of section 23 of this act, and if any such channel receives its supply of water from any river or channel connecting with Lake Alichigan, it shall be construed as receiving its supply of water from Lake Michigan. Approved May 29, 1889. (Laws of 1889, pages 129, 133- 137.) 1895. August 2d, the Legislature passed resolutions urging Congress to adopt and carry on a comprehensive plan of harbor improvement upon the Illinois shore of Lake Michigan. (Laws of 1895,' Extra Session, page 11.) 1895. June 10th, there went into effect an amendment to sec- tions 12 and 20 of the Sanitary District Act, by increasing the amount of taxes authorized, and amending section 20 so as to com- pel the Sanitary District to maintain in its channel 20,000 cubic feet of water for each 100,000 inhabitants. (Laws of 1895, First Session, pages 168-169.) 1897. The Legislature amended the ‘L\ct to Create Sanitary Districts and Remove Obstructions from the Des Plaines and Illi- nois Rivers,” by altering Section 12 so as to provide: “that no part of the taxes hereby authorized shall be used by such drainage district for the construction of permanent, fixed, immovable bridges across any channel constructed under the provisions of this act ; ’ ’ and Provided further. That all bridges built across such chan- iiel shall not uniUH^essaril y nilorroro with or ohslrnol tlio navigation of snoli channel when the same })e(‘.omes a navigable stream, as provided in section 24 of this act, })ut snc'h bridges shall be so constructed that tliey can })e raised, swung or moved out of the way of vessels, tugs, boats or other water- crafts navigating such channel ; and. Provided further, That notliing in this act shall he so con- strued as to compel said district to maintain or operate said bridges as movable bridges for a period of seven years from and after the time when the water has been turned into said channel pursuant to law, unless the needs of general naviga- tion on the Des Plaines and the Illinois Rivers, when con- nected with said channel, sooner require it. As amended by L. 1897, p. 209, May 13, July 1. (4 Starr & Curtis, pp. 452-453.) 1901. May 13th, the Legislature passed the following: An Act Extending the Powers or Sanitary Districts Or- ganized Under an Act Entitled, ^^An Act to Create Sani- tary Districts and to Remove Obstructions in the Des Plaines and Illinois Rivers,^' Approved Maa^ 29, 1889, in Force July 1, 1889, to Enable Such Districts to Improve Certain Navigable Streams Within or Auxiliary to Such District and to Build Bridges Across Such Streams. Section 1. Be it enacted by the people of the State of Illinois, represented in the General Assembly : That any sanitary districts organized under an ^Vct entitled, ‘‘An Act to Create Sanitary Districts and Remove Obstructions in the Des Plaines and Illinois Rivers,” a])])roved May 29, 1889^ in force July 1, 1889, which heretofore has or may hereafter use any navigable stream or river for a ])ortion of its chaimel, or as an adjunct thereto or auxiliary to its main channel, may for the purpose of widening, deepening or improving the same, for purpose set forth in the act aforesaid, acipiire by purchase, or under and ])ursuant to the eminent domain laws of this State, or otherwise, sufficient land for the pur])ose of making such im])rovement by widening and deepening said stream, as aforesaid. Sec. 2. That wherever it has or may become necessary by reason of the widening, deepening or improving of such river, to construct bridges to meet the altered or changed condition of such stream or river, such sanitary district or districts may construct such bridge or bridges as such improvement, here- tofore made or hereafter to be made, may require. Sec. 3. Nothing herein contained shall he construed as, de- priving any city, village or town situated wholly or ]ia)*tly within the limits of said sanitary district of any ]iower now exercised in the oi)eration of said bridges; and any ])i'idges 4(10 built under the provisions of this net to supply or replace a pnlilic street or liigliway bridge, now or hereafter existing, shall, after the construction of said bridge, be oy)erated and conti’olled for ninnicii)al purposes by said (hty, village or town within which it is located. Approved May 18, 1901. (Laws of 190i, ])age 104.) ddie only streams in the District were tlie Des Plaines and Clii- cago Rivers. This Act plainly recognized these two rivers as navi- gable. 1908. Alay 14th, tlje l^egislature passed the following Act: An Act in Ixelation to the Sanitary District of Chicago, to Knlarge the Corporate Limits of Said District, and to l^ROVIDE for the NAVIGATION OF THE CHANNELS CREATED BY Such District, and to Construct Dams, Waterwheels and Other Works Necessary to Develop and Eender Available THE Power Arising from the Water Passing Through its Channels, and to Levy Taxes Therefor. Section 1. Be it enacted by the people of the State of Illinois represented in the General Assembly: That the corporate limits of the Sanitary District of Chicago be. and the same are hereby, extended so as to embrace and include within the same, the territory and tracts of land situated in the County of Cook and State of Illinois, hereinafter described as follows, viz. : (Here follows a description of area giving enlarged boun- daries.) Sec. 2. The Board of Trustees of said Sanitary District shall have the right to provide for the drainage of the addi- tional territory added to said Sanitary District by this Act, by laying out, establishing, constructing or maintaining one or more channels, drains, ditches and outlets for carrying off and disposing of the drainage (including the sewage) of such district, together with such adjuncts and additions thereto as may be necessary or proper to cause such channels or out- lets to accomplish the end for which they are designed in a satisfactory manner, and shall have the right to use what is known as the ^Walumet feeder” of the Illinois and Michigan Canal, and lands adjacent to such feeder belonging to the State of Illinois for the site of any such channel, within the limits of the county in which such district is situated, in such manner as said district may elect, and shall also have the right to construct a channel across said Illinois and Alichigan Canal, without being required to restore said Illinois and ^Michigan Canal or said feeder to its former usefulness. If, by reason of said abandonment, a stagnant stream or pool of \vat(M- shall rtanaiii upon llie deposits of (hiiea^o sewage, ar*- (‘iinuilaied in said Illinois and Mi(*Jii^an (yanal f)y r(;asoM ot its years of nsetnlness by the (hty of (hii(*ago as a s(‘vva^e out- let, said Sanitary District shall till nj) said (*anal to a depth snfheient to remove said eonditioii, and prevent the si)read of pestilence and disease tlironghont the teri-itory in which said Illinois and Michigan Canal is abandoned; and the other ])ow- ers and jurisdiction of said Sanitary District of Chicago, ovei- and in connection with such added territory, shall be the same as that vested in it over tlie territory included within the limits of said Sanitary District, as originally organized. Be- fore said Calumet channel is connected with the present main sanitary channel, gates of suitable pattern for shutting off the flow of water into said Calumet channel shall be installed at or near the connection of said Calumet channel with the Calumet River, and forever maintained for use in case of an emergency, and for the protection of the property and lives of residents of the Illinois valley, and shall maintain the same proportion of dilution of sewage through such auxiliary channels as it may construct and join to its main channel as is now required by the Act creating said Sanitary District. Provided, liorcever, that before any such channel is constructed across said Illinois and Michigan C^anal, or the navigation of said canal in any manner interfered wnth, said Sanitary Dis- trict of Chicago shall connect its present main channel from the controlling works at Lockport with the upper basin of the Illinois and Michigan Canal at Joliet, by a channel of a depth of not less than ten (10) feet and a width of not less than one hundred and sixty (100) feet through its entire length, in which channel so to be constructed, said sanitary district shall provide and construct a lock or locks of the size of at least twenty-two (22) feet iji width by one hundred and thiily (180) feet in length, between mitre sills, connecting up'per and lower levels, and provide suitable j)rotection for wnter craft in using said locks and channel. Said locks shall be con- structed of the most improved ])attern of their size, and be ])erfectly safe for use, and be e(pup])ed with machinery to operate the same; and if only one lock is constructed, it shall be provided with double gates to i)revent accident, and said Sanitary District shall forever maintain and 0})erate the same. Provided, further, that said Sanitary District shall furnish, free of all expense, for the perpetual use of the Canal Com- missioners, at some point in the township of Lockport to be agreed upon by the Canal Commissioners and the Sanitary District lAustees, a strip or parcel' of land bordering upon said sanitary channel, eight hundred (800) feet in length and one hundred and thirty (130) feet in width, filling the same to a suitable deptli to jirovide suitable roadways for ap- (locks, shops, hams and other hiiildiiigs controlled by the (kinal (^onnnissioners and used in (‘onnection with the opera- tion of the Illinois and Michigan (Mnal. Sec. d. Said Sanitary District shall permit all water craft navigating, or i)urposing to navigate said Illinois and Michi- gaii (kinal, to navigate the water of all said channels of said Sanitary District ])ronii)tly, without delay and without ])ay- inent of any tolls or lockage charges for so navigating in said channels. The rules of the United States Government now in force, regulating navigation on the Chicago River, shall gov- ern navigation on the channels of said Sanitary District of Chicago. Provided, hoivever, that the speed of all vessels while passing through the earth sections shall not exceed eight (8) miles per hour. * * * Sec. 8. The said Sanitary District shall, at the expense of said District, in all respects comply with the provisions of the Acts of Congress of March 22, 1822, and March 2, 1827, as construed hy the courts of last resort of the State of Illinois and of the United States, in relation to the Illinois and Michi- gan Canal, so far as it affects that portion of the Illinois and Michigan Canal vacated or abandoned bv the terms of this Act. ^ ^ Approved May 14, 1903. (Laws of 1903, pp. 115-117.) This Act is notable for several reasons : First. It recognizes the Sanitary District of Chicago by name as a separate, distinct agency of the government of the State of Illinois. Second. It authorizes the Sanitary District to close up the Calumet feeder and certain portions of the Illinois and Michigan Canal. Third. It requires the Sanitary District to furnish a substitute channel, before closing up outlets of the Canal. It puts the channel of the Sanitary District in place of the Canal, and as an auxiliary to the Canal for purposes of navigation. 1905. Section 1 of the Act was amended so as to enable addi- tional territory to be included therein, by referendum vote. Act of May 13, 1905. (Laws 1905, page 199.) 1905. ^lay 11, the method of electing Trustees, and the powers and duties of the Board were changed. (Laws 1905, pages 198- 199.) 4(;:j 1907. I)y Acts {ij)i)r()vc(l lA'hriuu'y 2711i nnd May 27)111, 19t)7, the Act was aiiieiuled in Sechiotis 2, 4, 8, 9, 11, 12 and 19: Section 12 relating’ to the levy and (‘ollechion ol* taxes, hut re- taining the i)rovision for movable bridges. Section 19 regulating the liability of the Sanitary District for damage of land “by reason of the construction, enlargement or use of any channel, * * * outlet or other iiiiprovement under tlie i)rovisions of this act.” (Ijaws 1907, pp. 284, 287.) 1907. October 16th, the Legislature passed the following reso- lutions (Ex. M. of Information; introduced Ahst., p. 932) : Deep Waterway — Proposed Amendment to State Consti- tution. Ratified by People Nov. 3, 1908. (Senate Joint Resolution No. 26.) Resolved, by the Senate, the House of Representatives CONCURRING HEREIN, That there shall be submitted to the elec- tors of this State at the next election of members of the Gen- eral Assembly, a proposition to amend the Constitution of this State, to wit: Resolved, That the separate section of the Constitution of this State relating to the Canal be amended to read as fol- lows : 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 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 polled at such election. The General Assembly shall never loan the credit of the State or make ap])ropriations from the treasury thereof, in aid of railroads or canals; Provided, That any surplus earnings of any canal, water- way or water power may be appropriated or iiledged for its enlargement, 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 District of Chicago, at or near Lockport, in the tovmship of Lockport, in the County of Will, to a point in the Illinois River at or near Utica, which may be })ractical for a general plan and scheme of deep waterway along a route which may be deemed most advantageous for such ])lan of deep waterway; and for the erection, e(]uipment and main- tenance of power yilants, 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 4(4 scMiii-ainiiial ly, at a I'at^ not to (ixceod four per cent per au- niini, the proeeeds whereof may he a})})]ied as tlie Oeueral As- seiiilhy may pr-ovide, in the eonstruetiori of said waterway, and ill tlie erection, ecjiiiyiment and maintenance of said power plants, locks, bridges, dams and a])pliances. All ])ower developed troni said waterway may lie leased in part or in whole, as the (teneral Assembly may by law jirovide; !)ut in the event of any lease being so executed, the rental specified tlierein for water power shall be subject to a re-valuation eacli ten years of tlie term created, and the in- come therefrom shall be paid into the treasury of the State. Adopted by the Senate October 16, 1907. Concurred in by the House, October 16, 1907. (L. 1907-8, Adjourned Session, pp. 102-3.) 1907. October 15-16. 1)ee[p Waterway Committee. (Senate Joint Kesolution No. 23.) Whereas, There lias never been adecpiate and comprelien- sive legislation in the State of Illinois relating to the rights of the State in Lake Michigan, the Mississippi, MMbash and Ohio Livers, as set forth in Act 1 of the Constitution, or to Rock River, the Illinois River, the Vermilion, the Kankakee River, the Embarrass River, the Kaskaskia River and the Little Wa- bash River and their various tributaries, covering the subjects of sanitation and navigation, water power, reclaiming waste lands and kindred matters; and, AVhereas, The overflowed lands of these streams are of in- calculable value, if redeemed, and of little or no value as they now are, besides being a menace to the health of a large and increasing population; and. Whereas, The State has expended large sums of money in making and maintaining the Illinois and Michigan Canal, and expended money for the improvement of the Illinois River and the Little Wabash, and granted a charter to the Sanitary Canal Commissioners, with vast and sweeping powers, which said Commission is now seeking to enlarge its powers by further legislation; and AVhereas, Much of the past expenditure by reason of changed conditions, has been unwise or ceased to be of value; and "Whereas, All intelligent and progressive people of the State are in favor of a deep waterway from the lake to the gulf, and do not desire to retard the making of such a channel ; and, AVhereas, The taxpayers of the State have the right to de- mand that neither the State nor its citizens have any of their rights abridged or taken from them by hasty and ill-advised action of the General Assembly; now, therefore, be it Resolved, by the Senate, the House of Representatives CONCURRING THEREIN, That, in Order to fully, carefully and ])romptly investigate the subject-matter above referred to, that 4(15 the presiding- ()rii('er of llie Senate he, and Innaihy is, anthoi-iz(i(J to appoint live (5) ineinhei's of the Senate; and tliat the S[)eaker of tlie Jlonse be, and lie is hereby antliorized to afi- point five (5) members of the House; and that tlie governor be re(]nested and is hereby antliorized and emiiowered to ap- point five (5) well qualified and disinterested men to act with the members of the Senate and House, and who, together Avith said members of the Senate and House, shall be known as ‘‘The Deep Waterway Committee.” It shall be their duty to ascertain the rights and powers of the State of Illinois to the waters mentioned herein, and to make a comprehensive and exhaustive investigation of the rivers and canals of this State ; and to define and report what need there is for legislation in reference thereto, and to con- sider and define the rights of the State and riparian oAAUiers to the inherent or developed water power, factory sites, tolls for transportation on said Avaters, reasonable prices of water power upon these canals and rivers, and to make recommend- ation for such legislation as Avill promote the welfare of the whole people and restrain any over-reaching and oppressiAm action of any individual or corporation relative to any ]:>art of the subject involved; Also to deAuse and recommend the appointment of a suita- ble commission, to be permanently established, with poAver to control the uses and charges of such waterways, keeping the rights of the State, the rights of individuals and corpora- tions and the rights of the peo])le aa4io may desire to use these Avaters, along lines similar to the ilailroad and Warehouse Commission in i*eference to common carriers. And that these ])ersons so to be a})])oiiited, at once enter Tipon their duties here outlined, and that they may be re- (juired to make, on or before August 1, 1908, a full re})ort of their action in the i)remises to the OoA^ernor, Avith such bills or amendments to the present laws as they may deem Avise and needful. And that these persons so to be ai)})ointed. at the time of making their report, present a sworn account of their expenses and the time in AAdii(‘h they AA^ere engaged in this service. And that the Governor be recjuested to recommend to the next General Assembly an ap])ro})riation to defray such ex- penses and pay these persons so to be appointed for their serv- ices thus rendered. Adopted by the Senate October 15, 1907. Concurred in bA^ the House October 10, 1907. (Laws 1907-1908, pages 102-104.) 1907. November 27, the Legislature passed the folloAAnng reso- lution : CANAL (’OM MISSION CANC^ELLATION OF LEASES, ETC. (House Joint liesolution No. J>8.) Whereas, JJie (^aiial (,\)]ninissioners ap])ointe(l under and l)y viidne of ‘‘An Act to revise the law in relation to the Illi- nois and Michigan (^anal, and for the imi)roveinent of the Illi- nois and Little Wahasli liivers,” a})proved Alarcli 27, 1874, in force duly 1, 3874, liave at various times lieretofore executed leases of water power and water privileges to ])rivate indi- viduals and corporations, under and l)y virtue of the powers granted to said commissioners hy section 8 of the above en- titled Act, and that among the said leases were certain alleged leases or agreements to Harold T. (Iriswold, dated September 2, A. I). 1904, purporting to grant and convey certain rights and privileges in and to the waters and water povrer of the Des Plaines and Kankakee Rivers ; and, W^hekeas, The said Harold T. Griswold, or his assignees, hy virtue of said alleged leases or agreements, are building and constructing certain dams, controlling works, locks and other obstructions in and across said streams, which, in the opinion of this General Assembly, are destructive of the navigation of' said streams, and to the disadvantage of the State of Illinois; and, Whereas, The sixth clause of section 3, (8) of said Act pro- vides, among other things, as follows : “All leases of water povv^er and extensions thereof shall be subject to the right of the commissioners to resume without compensation to the lessee, the use of any such water power for the purpose of the canal, and also wholly to abandon or destroy the work by the construction of which the water priv- ilege shall have been created, whenever, in the opinion of the Legislature, such work shall cease to be advantageous to the State;” and, Whereas, The construction of such dams, controlling works, locks and other obstructions being erected and constructed by the said Harold T. Griswold, or his assigns, have ceased to be advantageous to the State, and that such water power and water prhdleges therein purporting to have been granted in and by virtue of said leases or agreements are necessary for the purpose of the canal ; therefore, be it Resolved, by the House or Representatives, the Senate CONCURRING THEREIN, That Said Canal Commissioners are hereby empowered and directed to cancel and annul said al- leged leases or agreements and any and all extensions thereof and to resume all such water power and water privileges therein purported to have been granted to the said Harold T. Griswold by the said Canal Commissioners on September 2, A.. D. 1904, and that said water power and water privileges be restored for the purpose of the canal and that all such 4G7 (lams, (‘oiiii-olling works, Io(*ks araj ()tli(3r ohstniciioiis llioroin existini>‘ for the purpose ot* ereating such water f)ower and water [xrivi leges he fortliwitli abandoned and d(‘stroyed by su(‘h Canal (k)mmissioners. Adopted by the House November 27, 1907. Concurred in by the Senate November 27, 1907. (Laws of 1907-8, Adjourned Session, |)ages 101-102.) 1907. December (i, the Legislature passed the following statute on the navigability of the Des Plaines and Illinois Eivers: An Act Recognizing the Des Peaines and Illinois Riveks 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 Assemblah That the Des Plaines and Illinois Rivers tliroiigliont tlieir courses from and below the water power plant of the main channeb of the Sanitary 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 As- sembly; 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 puriiose of this Act. Sec. 2. Whereas, An emergency exists; this Act shall be in force and effect from and after its passage. Approved December G, 1907. (Laws 1907-1908, Adjourned Session, pages 92 and 99.) IV. THE riEINOIS AND MICHIGAN CANAL AS A FACTOR TOUCHING THE NAVI- GATION OF THE DES PLAINES RIVER. But it has been asked — if the Des Plaines River is navigable, why was the Illinois and Michigan Canal built alongside of it? Wby was not the river itself used? Reply: (1) Because the use of tbe river would not have ob- tained tbe land grant; and (2) because of convenience of con- struction. 4(;8 Tlie A(*t of (^ongress of Maroli 2, 1827 (C.^anal Ckanpilation, pp. 2-.‘)) grants to tlie State of Illinois, ^‘foi* the pnri)ose of aiding tlie said State in o])ening a canal to unite the waters of tlie Illinois River with those of Lake Michigan, a (]uantity of land equal to one-half of five sections in width on each side of said canal, and reserving each alter- nate section to the United States, to be selected, etc. * * * ‘‘Section 2 . * * * That so soon as the rovte of the said canal shall he located and agreed on by the said State, it shall be the duty of the governor thereof, or such other person or ])ersons as may have been, or shall hereafter be, authorized to superintend the construction of said canal, to examine and ascertain the particular sections to which said State will be entitled, under the provisions of this Act, and report the same to the Secretary of the Treasury of the United States.’’ At the time the Land Grant Act was passed the length of the canal had not been ascertained nor its termini located. Three links of canal were needed: (1) A canal 20 miles long was needed to connect the Chicago River with the Des Plaines — and which has now been superseded by the Drainage Canal. The waters were only 6 miles apart in dry weather and connected in wet weather, but the canal had to be long enough to pass over the Divide and let the water run away from the lake instead of into the lake. (2) There was a place at the Grand Rapids of Illinois, near the present town of Marseilles, where a canal about three miles long was needed. (3) There was a i^lace in Joliet, near the present site of dam Xo. 1, where a short canal was needed. The rest of the way the river could be used. In House document 263 the report for 1905 of the engineers, after giving a table of the velocities, on page 41 they say: “This table is designed to show the greatest velocities which occur from Utica to Joliet. The largest of all is at the Jefferson Street bridge in Joliet and is seven and four-tenths miles per hour. The next largest is one mile below Marseilles and is five miles per hour. Studying the table in conjunction with the profile indicates that from LUica to the foot of Moore’s Island, a distance of 12.3 miles, the maximum varies from 2.8 to 3.6 miles per hour. From the foot of Moore’s Island to the middle of Bell’s Island, a distance of 2.3 miles, the veloc- ity increases to 4.3 miles per hour. From this point up stream 40 !) the veloeity to iiu'rease «ms vve ap[)r()aeli tli(‘ lVrar‘S(‘i Il(;s Oarri, which is 1247 miles from (Jral'ton. (h’afton is at the inoatli ot* tlie river. One mile below the darn the velocity was five miles an hour. Just below the dam it has been inifrossible to com- pute the velocity as there is not sufficient data on hand, but it was probably no less than seven miles an hour. From Marseilles dam to Seneca, a distance of 4.4 miles, the velocity varies from 3.5 to 4.1 miles, the greater value being found only at one section. ‘‘From Seneca to Patterson Island at the head of Lake Joliet, a distance of 32.7, the maximum velocity varies f]*om 2.1 to 3.1 per hour. There are two exceptions to this, namely, at the mouth of the Des Plaines Piver 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 half a mile. Proceeding up stream from Lake Joliet, the velocity in- creases up to Dam No. 1 at Joliet. At the Jefferson Street bridge, the computed velocity is 7.4 per hour from the flood of 1904. From the preceding investigation it has been decided that the velocities which were obtained during the extreme high water are prohibitive only below Marseilles and Joliet dams. Under the adopted project, a canal about three miles long has been provided on each of these sections. The velocity from the Marseilles dam to Seneca, namely, 34 to 4 miles an hour, is obstructive but not prohibitive, as these floods occur only at rare intervals and are of short duration and it is not considered necessary to leave the river bed at this section. “The same remarks apply to the section just below the pro- posed canal at Marseilles and to the short sections at the mouth of the Kankakee River and Treat’s Island.” (House Doc. 263, pp. 41-42.) (Abst., p. 661.) In the passage from the re})ort of Major Benyaurd of 1883, he said : “Looking at the matter from an engineering point of vieir, it is difficult to understand what led originally to the con- struction of the canal rather than the improvement of the natural channel of the river.” (Abst., p. 1699.) Probably the distinguished engineer who wrote that report did not have in his mind the land grant five and a half miles wide on each side of the canal. Here we have a stretch three miles long at Marseilles where the report of 1905 says that the canal will be needed, and a stretch of 3 miles long at Jelferson Street bridge and Dam No. 1 where a canal is needed. These points are 50 or 470 ()0 inilos a])art. With the land grant for oacli inile of tlie oanal throngliout its longtli, we can see a reason wliy the State in 1880 would make the eanal the whole lengtli, while in 1905 an engineer who had no land grant to sjveak of and no premium on mileage, would make his (-anal as sliort as tlie necessities of tlie case re- (liiired and would liave a canal tliree miles long at one ])lace and three miles long at another. That the land grant was considered as a motive for making as many miles of canal as ])ractical)le is avowed by W. F. Thornton, IT-esident of the i^oard of (kinal Commissioners, in his message to tlie citizens of Ottawa in July, 188(). He said: ‘‘Canal Office, Chicago, July 11, 1836. “Committee of the Citizens of Ottawa. “Centlemen: Your communication of the 23d ult. was laid before the Board 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 hoard to cause a survey of the Illinois River, or any part of it, to be made with a view of its ultimate improvement for slack water navigation,’ and we presume that you allude more especially 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 Alicliigan Canal, approved the 9th of January, 1836, it will be seen that the Legislature have ordered the canal to terminate ‘at or near the mouth of the Little Vermilion River, in La Salle County, and on lands owned by the State.’ “WJien 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 rela- tion to the safety and stability of navigation, and to the iur creased revenue derivable fro}n State property hy terminating the canal as low down the river as ivas contemplated in the grant of lands from the Govermnent of the United States, Nor can it he dotibted that the tenor of that grant tiad some influ- ence on the decision. ***** “ ‘The Commissioners shall have power,’ says the law, ‘to cause an engineer to examine the Illinois River, from the mouth of Fox River, down to the head of steamboat navigation ; and if, in their opinion, the navigation of the Illinois can be ini- 471 proved by lo(^ks and dams, oi- ()lli(‘rvvis(‘, so as to s(M‘nj-(‘ its navigation as tar ni)wai'd as the nioiitli of Fox Riven*, with as little expense and as niiieli utility as eanalling* rroin tin; Fox River to tlie Little Vermilion or the Foot oF the rapids, they shall have power to terminate said (‘anal at month oF h'ox river.’ In 1883, the same engineer reported that a eomijara- tively good route conld he obtained For the eontimiation oF the canal from the month of Fox River to a jjlace now known as Utica and that great difficnlty and expense would attend a further progress. In examining the rapids of the Illinois below the mouth of Fox River, he says, Ut was ascertained that the establishment of a still water navigation wms the most certain and effectual method of improving them.’ But in his zeal to demonstrate the superiority of a railroad over either mode of water communication, he admitted a steamboat canal around the rapids, Uo be of too precarious a nature to be rec- ommended with any degree of confidence in its permanency and usefulness.’ He estimated an independent canal between Fox River and Utica at $580,000; and a still water navigation for the same distance at $200,000; and it is worthy of remark that notwithstanding this great disparity of cost necessarily enhanced by the difficult country l)etween Utica and the mouth of the Little Vermilion, the Legislature have thought proper to repeal the eighth section, just cited, and to adhere to the first plan. In fact, they have presented the termini in language not to be misunderstood, while they have given great latitude and almost everything else connected with the subject, hence the Commissioners deem themselves unauthorized at this time to cause a survey of the rapids of the Illinois River ‘witli a view of their ultimate improvement for slack water naviga- tion;’ nor would they be justified to any premeditated sus])en- sion of that particular line for the sole purpose of bringing the matter again before the Legislature, unless the engineei*s (who have recently ascertained that a safe canal and suitable termination are entirely practicable) should prove by their es- timates that the cost will so far exceed any previous calcula- tion as to render it ])rudent, on the part of the Commissioners, to report that fact to the (xovernor and ])ause for additional legislation. * * * ^H^aking this view of the sul)ject, the Commissioners can make no pledge Uo cause any part of the river to be surveyed, with a view of slack water navigation,’ except in the contin- gency before mentioned or, in the further one, of the Fox River feeder, and the division along the rapids 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. ‘Mn coming to this conclusion, the Board of Commis ai'o iiifliioiKMMl, ill tlio first case, by the consideration that if a continuous canal should be shoivn to he too costly for its bene- fits, a still water navigation will be the only alternative; and, in tlie second case, ])y tlieir anxiety to do everything consist- ent with tlieir duty, to ])roinote the interest and gratify the wislies of tlie enterprising citizens of so important a town as Ottawa. A point in which the State is deeply concerned and one which, in no event, can fail to arrive at immense conse- (juence.” (Canal Report, 1900, pp. 109-110-111.) (Abst., pp. 1868- 1870.) (See, also, pp. 6-16-350, ante, extracts from Engineer (lood- ing’s Report, suggesting that the river be used.) Engineer William Gooding, who laid out and began the construc- tion of the canal, by his report in 1836 as to the location, plan and initial work of the canal, answered the question then rife, as to why the Des Plaines River was not used, as follows : ‘‘The former line or 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 cutting being much less. This line passes over ground but little elevated above the surface of Portage Lake at an ordinary 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 the 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 re- sult prove favorable. But it was found that no saving could be effected by such an arrangeynent. Portage Lake is a suc- cession of ponds on the same level, connected with each other and with the Des Plaines River, and extending about six miles toward Chicago River, nearly in the direction of the canal line. The surface of the water at an ordinary stage is lOj feet above Lake Michigan, and 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 with 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 unfavorably than that of Portage Lake. The bed of this stream for 13^ miles below the point where the canal line enters the valley, except in a very few places and for short distances only, is from 8 to 12 feet above bottom of canal, and noiliiiig wliaievor ('oiild he gained by oceupying any portion of the cliannel, as the difflcidty of disposing of or keeping out the tvafers of the river to make the necessary excavations j would more than balance tlie diminution of the quantity to be exca- vated by sucli a location.” (Canal Com’rs Eeport for 1900, p. 119; Keport of William Cooding, Chief Eng’r, 1838; Trans., p. 0399.) (Abst,, p. 1873.) The State authorities believed that the land grant was ample, and more than ample, for building the canal, and would pay for it and leave a large surplus, and that it was desirable to make the canal as long as the circumstances would justify in order to get as large a surplus as possible to provide for unforeseen con- tingencies. Having need of three miles of canal at Joliet, three miles of canal at Marseilles, and 20 to 30 miles to connect the Chicago Eiver with the Des Plaines, they decided to make a canal extending all the way from the east end of the easternmost canal to the west end of the westernmost canal and obtain as large a land grant as possible. That their belief was reasonable is shown by the immediate re- sults. The Canal Eeport for 1900, page 80, shows that in 1830 canal lands were sold to the amount of $13,505.61. In 1836 (id., p. 116) lots in Chicago were sold to the net amount, exclusive of forfeitures, of $1,355,755. And the report says that there were then unsold, in 1836 (p. 119), 270,182 acres, or nearly seven-eigths of the whole. The estimate of the cost of the canal made by the State in its memorial to Congress January 18, 1826, appears! on page 69 of the Canal Commissioners’ Eeport for 1900: ‘Wour memorialists have caused the route to be explored and estimates to be made of the probable expense of the work, from which it appears that the cost of constructing the canal will not be less than $600,000 and may possibly amount to $700,000. • ^‘To the end, therefore, that your memorialists may be en- abled to commence and complete this great and useful work, we pray your honorable body to grant to this State the re- spective townships of land through which the contemplated 474 (*aiial inay [)ass; tlie avails of Avliidi to be aj)propriated ex- (‘lusively to the construction of said canal upon such terms and (‘onditions as to your lionoralhe body may seem proper. And as an inducement to Congress to make tlie land grant the memorial states: ‘‘The public lands in the vicinity would not only sell, but at a considerable advance upon the minimum price.’’ (Id.) (The grant equaled five sections or 3,200 acres per mile.) Tf the canal went straight through a township (the unit per mile asked by the memorial) on an east and west or north and south line, the grant would be one township (36 sections) for each six miles of canal, or 6 sections, 3,840 acres per mile. If the canal Avent through the township on a diagonal line from corner to cor- ner, the grant would be one township (36 sections) for 84 miles of canal (nearly), or about 2,700 acres (4.2 sections) per mile. The grant of five section to the mile is not greatly different from the amount asked by the memorial. The actual estimates by Post and Paul are given on page 202 of Canal Report for 1900, viz.: “first route is estimated at $716,- 110.71, second route is estimated at $639,542.78. There are 3 other estimates, viz.: $668,289.68, $882,610.20 and $689,746.96. (Abst., pp. 1903-1904.) The defense endeavored to meet this by saying that the canal, which is 102 miles long, under this land grant would get 502 square miles, or 326,400 acres, which at $1.25 an acre would be $408,000, while the estimate of cost quoted above was from $600,000 to $700,- 000 . But we submit that there is no justification for assuming that the entire land grant on this great improvement in this choicest region would go at $1.25 an acre. They did not go for that price. Five or six dollars an acre was considered too low. Again, these figures entirely overlook the great profits from the town sites, which, as we have seen, yielded over a million dollars on the sale of 1836 and left seven-eighths of the land grant unsold. From all that is known, it is clear that their expectation was that the canal would cost from $600,000 to $700,000, and that the land grant would yield several millions of dollars. Ill 18,‘)8 the ('^anal (commissioners took occasion to r(‘poat tlio estimate they made, using- tlie following language in their re[)ort to Governor Carl in : ‘‘In eonelusioii, the Commissioners reiterate tlie opinion, expressed in tlie first annual report to the Governor, that ‘if these lands and town lots be very gradually and cautiously brought into market, reserving the chief part until the canal shall have been completed, and all its advantages clearly un- derstood, there is more than enough 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 default 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.’ ” (Canal Com’rs Keport, 1900, pp. 151-2.) (Abst., p. 1889.) That estimate, viz., th?d the lands ought not to be sacrificed for five or six dollars an acre, was made in 1838, in the midst of the great depression following the panic of 1837, which was far and away the severest panic and financial depression the country has ever known. In fine, there was expected a great profit in the land grant, and they laid out the canal as long as possible to get as much profit as possible, and as there was no land grant to go with the use of the river they discarded the river. The memorial was presented to Congress in 1826 (Stead’s Canal Comp., pp. 12-13; 111. Sess. Laws, extra session, 1826, p. 97). At that time the standard size of the canal contemplated was fixed by the Act of January 17, 1825, section 5, at “forty feet wide at the summit water line, twenty-eight feet wide at bottom.^’ (Stead’s Canal Comp., p. 9.) In 1838, when the commissioners estimated that the land grant would still pay for the canal on its “present capacious and permanent plan,” the size of the canal contemplated was “forty- five feet wide at the surface, thirty feet at the base.^^ The deliberate estimate of the Commissioners in 1836, and again in 1838, was that the land grant would still pay for a canal forty- five feet wide, while at tlie time the memorial was framed and the $700,000 estimate was made they were figuring upon a canal forty feet wide. We know, of course, that in the end the canal cost ten times their estimate. That is something aside from the argument. The argu- ment is that they built a canal and got a land grant, and that they expected to make a profit on the land grant and therefore made the canal as long as possible instead of using the river. Engineer Gooding, in his report for 1838, says (Canal Report of 1900, p. 157) : ‘^Wherever an improvement upon the original plan increasing the cost over the original estimates, has suggested itself, during the progress of the work, the facts have been com- municated to your board and I have had the satisfaction to find that it has been deemed more important to increase the perma- nency, utility, and symmetry of the canal, and ultimate value of state property than to keep the cost in every instance within the original estimate.’^ It was the old question of how to make water run up hill — the answer is, ^^cut down the hill.” That is, the river bed ivas lOI feet above LaJce Michigan. To connect it with the lake without loivering the river bed, would simply make the river run into the lake and drain it off from its southwestern course to the Illinois, and destroy the water connec- tion that already existed. To use the river and connect it with the lake involved cutting the river bed over 12 feet deeper, or alterna- tively an elaborate system of locks, dams and controlling works in the river itself, and on a much larger scale than in a canal. So they decided to cut a new ditch 4^ feet deep on the surface of the ground and feed the river into it at the summit level. This was not because the Des Plaines was not navigable but because it would require a cut in the river bed over 12 feet deep to make the canal from the lake run away from the lake. And so to deepen the river to a grade below the level of Lake Michigan would involve con- trolling and disposing of the river water while the deepening was going on. Similar questions led to the construction of the Erie Canal alongside the navigable Mohawk for over a hundred miles. So, in 1868, Gen. Wilson and Engineer Gooding (the same man who built, the canal) recommended to the II. S. Government the 477 Imildiiig of ii (*aiial from tlio (4iic*ag-o River to Joliet and tlie use of the river from Joliet on; and said: ‘‘We are of opinion that it will be found expedient in eon- structing a canal of so large capacity as the one proposed, in a material of such exceedingly difficult character, to make it entirely outside of the present line, so that the whole work may be prosecuted in the most advantageous manner at all seasons of the year without interfering with the navigation of the canal/ ^ That is, although the canal from Chicago to Joliet was already there, and was navigable, it would be more convenient and econo- mical to build a new one alongside of it than to enlarge the old one ; that they recommended building a new and larger and better one alongside did not in any way tend to prove that the old canal was not navigable. The same questions led to the digging of the entirely new Drainage Canal alongside of the Illinois and Michi- gan Canal. They parallel each other for 30 miles. The digging of the new canal did not prove that the old one was not navigable. Nor did the digging of the old canal parallel to the river prove anything in regard to the navigability of the river. It has, indeed, had the effect of clouding the subject. The canal put the river out of business. It was more convenient. It was controlled by locks. It had boats provided by the State. Com- mercial navigation on the river practically ceased. For 60 years (ever since 1848) men have not seen much commercial navigation on the Des Plaines. The men who did see the navigation upon the river have died. A new generation has grown up which has not seen it ; and many of whom suppose that because they have not themselves seen it, it is impossible. A few years later, in 1853, the Chicago & Rock Island Railway was built parallel to the river and canal. The three highways then ran side by side, and the railway less swiftly but none the less surely put the canal out of business. The IT. S. Engineers Report of 1905 states (House Document No. 263, p. 9) : “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 soon to become total. * * * ^as intended to extend these dimensions of waterway to replace the obsolete canal. But the canal is a navi- gable waterway, althougli sii])ersecle(l, and so is the river. (Al)st., p. 1701 .) V. 47S SUMMAJIY OF CANAL HISTORY. (points DFALT with in the documentary history of T?IE ILLINOIS!. AND MICHIGAN CANAL CONTAINED IN CANAL COMMISSIONERS^ REPORT OF 1900, WITH POINTS FROM OTHER SOURCES.) The Canal Lands — The Indian Treaty Lands. In tlie Appendix of the Canal Commissioners’ Report of 1900 is a copy of tlie map of Post and Paul, made in 1824, entitled, ‘^Map of that part of the State of Illinois through which it is contem- plated to construct a canal.” On page 62 of the Report of 1900 it is stated that ‘^This map is endorsed date A. D. 1824.” The area shown on this map by Post and Pant corresponds close- ly with the territory ceded to the United States by the Indians in the Black Partridge Treaty. That territory, it will be remembered, ceded a tract of land 10 miles wide on each side of the Des Plaines and Illinois from Fox River to Lake Michigan. The description in the treaty is as follows : ‘‘Beginning on the left bank of the Fox River of Illinois, ten miles above the month of said Fox River ; thence running so as to cross Sandy Creek ten miles above its month; 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 I)es Plaines, a fork of the Illinois; thence, in a direct line, to a point on Lake Michigan, ten miles northward of the month of Chicago Creek; thence along the lake, to a point ten miles southward of the month of the said Chicago Creek ; thence in a direct line, to a point on the Kan- kakee, ten miles above its month; thence with the said Kanka- kee and the Illinois River, to the month of Fox River; and thence to beginning. ’ ’ Blanchard’s The Northwest and Chicago, pp. 490-491. 7 U. S. Stat. at Large, pp. 146-147 (Treaty of 1816, Ang. 24). This will be found to be exactly the territory delineated on the Post and Pan! map from Lake Michigan to the Fox River. There 470 is an added portion west ol* the h\)x River wliieJi was not in the Black Partri(ige d^reaty. EARLY CANATi PKOJEOTS. At the time this treaty was made Congress had already for eight years been considering the project of the canal. his celebrated report on Means of Internal Communica- tion, in 1808, Albert Gallatin gave a prominent place to the project for a ship canal across the Chicago portage. ‘Mn 1811 the Illinois waterway was reported to Congress in a bill along with the proposed Erie and other canals. ^‘From 1808 to 1825 the C^^oposed ship canaE was repeat- edly advocated by Clinton and Morris as an extension of the Erie Canal to the Mississippi Eiver. ‘‘President Madison, in his message to Congress in 1814> invites attention to the importance of a ship canal between Lake Michigan and the Illinois Eiver.” Eeport of Illinois Internal Improvement Commission, 1907, p. 7. ROUTE AND LENGTH OF CANAL EARLY IDEAS AS TO. It is obvious that when this treaty was made it was not imag- ined that the canal would need to extend west of the Pox Eiver. The general state of the best opinion on the subject was that the canal would extend from Bridgeport on the Chicago Eiver to the head of Lake Joliet, 14 miles above the mouth of the Des Plaines. On this subject H. E. Schoolcraft in his ‘‘Travels in Central Por- tions of the Mississippi Valley,” narrating his journey of 1821 as Secretary of a Treaty Commission, and published in 1825, gave a clear statement: SCHOOLCRAFT ^S BOOK OF TRAVELS TITLE. “Travels in the Central Portion of the Mississippi Valley, comprising observations on its minerals, geography, internal resources and aboriginal population. (Performed under the sanction of the Government in the year 1821.) By Henry E. Schoolcraft, U. S. I. A., Honorable Member of the American Geological Society, Member of American Antiipiarian Soci- ety, honorable member of New York Historical Society, cor- respondent member of New York Lyceum of Natural His- 480 tory, eorrespondent of tlie Academy of Natural Sciences at Idiiladelpliia, etc. New York. Published by Collins & Han- nay, 230 Pearl street, J. & J. Harper, printers, 1825. (Abst., p. 1053.) INDIAN TITLES PURPOSE OF SCHOOLCRAFT ^S JOURNEY. ‘‘The Government now proposed to extinguish the Indian title to that portion of the country included between the north- ern boundary line of the State of Indiana and Grand River, Micliigan, embracing in longitude all that part of the penin- sula within these boundaries, which still remained unpur- chased. To effect this object, his Excellency, Governor Cass and Solomon Sibley, Esq., were commissioned by the Presi- dent to meet the Indians in council at Chicago in the summer of 1821 ; the lesult of whose efforts is hereafter to be de- tailed. Having been appointed to fill the office of Secretary for this commission, I deem it sufficient here to remark 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 v;lii!e the large concourse of Indians who were drawn together on this occjision remained encamped in that vicinity. (Abst., p. 1053.) SCHOOLCRAFT^S ROUTE. “The usual route in proceeding to Chicago is either to fol- low an Indian trail which leads out from the source of the River Raisin and is computed to be a little short of three hundred miles, or by taking ship and performing the voyage through the lakes by way of Mackinac, which somewhat more than doubles the distance. But as Government business requires the presence of one of the Commissioners on the Wabash, it was proposed to reach that place by means of the water com- munication connecting that river with the Maumee, and after- wards to extend the route into the Ohio and the Mississippi, and reach Chicago by following up the Illinois to its source.” (Abst., p. 1053.) THE DATES OF SCHOOLCRAFT ^S JOURNEY UP THE ILLINOIS. The l) 00 k is kept in the form of a journal with dates. In the preface he states the trip is in the summer of 1821. Page 188 of Schoolcraft’s book he states the date as July 21 at a.hout Peoria, en route upwards. ‘IS) Pago 21)5 ho gives tlie next dale as ‘Mini -tilP’ (of August). l^age »>d7 he says: “Coiieil breaks up and iiuHits again on tlie 22d of August.” l/riie passages vvhi('li were read in full, and whi('li nnt quot(‘d a])()ve, ()('('ur between these dates. ] THE SCHOOLCRAFT BOAT AND ITS LOAD. ‘‘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 our traveling canoe. In its dimensions a choice was made between Hie long and ])ointed north- west canoe employed in the fur trade, and the light ovate canoe of the lakes; combining in a good degree the strength, the buoyancy and the velocity which are the peculiar char- acteristics of each. And our bark afforded perhaps an ecpiit- able standard of comparison of the safety and convenience of this expeditious, and, as we think, pretty mode of voyaging. It 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.” (Nine employes besides the three men, Cass, Sibley and Schoolcraft, constituted the commission.) “Our own seats were made by opening a traveling bed upon the light portable floor ])laced between the center thwarts of the canoe, and so arranged as to serve the double purpose of sitting and reclin- ing — or rather so as frequently to keep the body in a state of involuntary accubation. Our whole amount of personal bag- gage, beside a camp bed and a case of books and magazines, might have been compressed within the compass of a moder- ately 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 accelera- tion of its movements. A linen marque, a few instruments necessary for making observotions u])on such branches of science as ,we })roHOscd noticing, tlie tools and utensils necessary for cooking and encampment, and the requisite gum and wattap for repairs to the canoe, completed the outfit. An oil cloth which could be spread in a few moments over all, secured the packages against sudden showers oi* the effects of waves breaking in. (Abst., ]>. 1054.) * * * * * * * * * 4Sl> THK VKItM ILION IIAPIDS PKEVKNT U P-SI'RKAM NAVIGATION OF THE ILLINOIS IN AUGUST. two o’('Ioek we reaelied the moutli of the Vermilion, a fine, (‘l(‘ar stream (mt(‘ring' on the left liaiik. This iioiiit is estimated to 1)(‘ eijiii-dfstaiit hetweim (liieag'o a.nd Fort (hark, it Ixhiio' ninety miles either way. hhi(‘ rapids eommeneed half a mile above which eonneets it witli the Illinois, and is greatly diminished in size above the junction of the Vermilion. 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. AVhen our canoes would no longer float without rubbing against the rocks we got out and made a short portage. The empty canoes being still guided along by men walking in the stream on each side. When we again embarked we could, however, go Imt a very short distance. Another portage was necessary. 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 pro- ceeded two or three miles above the Vermilion and about four o’clock we encamped near a remarkable isolated hill called by French voyagers Le Rocher and Rock Fort. * * * * * * * * * (Abst., p. 1049.) USE OF HORSES FOR JOURNEY UPWARDS FROM STARVED ROCK TO RIVERSIDE. ‘^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 or- dered to meet us near this place on the 10th” (of August, 1821.) man Was sent by land to Reddick’s deposit. He returned at a seasonable hour on the following day, having found horses in waiting. Having made the necessary arrange- ments for continuing our voyage by land, we left our canoe men in charge and we mounted our horses at ten o ’clock in the morning and pursued the journey in renovated spirits. * * * * *'#*'* iff * * * (Abst., p. 1049.) THE DETOUR TO THE MOUTH OF DES PLAINES TO PETRIFIED TREE, At nine o’clock in the morning we came to a part of the country which is contiguous to the Des Plaines and to tlm Kankakee, two considerable streams, which by their junction form the Illinois. Here our party halted to allow an oppor- 4h:\ iiinily of (‘xnniiniiio” an ohjcu-l llial had Ixuni (l(‘S(‘i-il)(!(l to us as l)(‘ini>' 0110 wlii('h was (aikailatod to oxoiU^ our ouriosity. persons ot* observation have probably pass(‘d throngli tin; Iiivcn* Des Plaines without devoting some attention to the petrihcMl tree. (Abst., ]). 1050.) *********** PETRIFIED TREE IN BED OF STREAM, THREE FEET THICK, TWELVE TO TWENTY INCHES OF WATER OVER^ IT. ‘‘ * * * which is exposed, 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 con- siderable 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 sandstone, 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. (Abst., p. 1055.) *********** ‘^Thomas Tousey, Esq., of Virginia, who visited this local- ity in the autumn of 1822’’ (a period of low water) ‘‘found nearly the same depth of water in the Djes Plaines. 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.’ (Abst., p. 1056.) * * * * * * * * * * * THE RIVERSIDE FORD DESCRIPTION OF THE ILLINOIS. (The Schoolcraft map, put as evidence. Atlas 3961, shows that the ford was at Riverside at the point marked by the Surveyor in 1821 as “Head of Navigation.”) “About ten o’clock in the morning we reached the ford of the Des Plaines. We found the river about thirty yards wide and the depth of the water two feet. Between this place and the Vermilion, 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 points to determine that it has several long and formidable rapids which completely intercept naviga- tion at this sultry season. 484 ]»J{01’()SEL) CANATj LENGTH OF PORTAGE CHICAGO TO MOUNT JOLIET THIRTY MILES. “A remark that has been eonfirmed by meeting several traders on the ])lains who bad trans})orted their goods and boats in (*arts from (diieago (Ireek, and who informed us they tlionght it praetic'able to enter tlie Illinois at Mount Joliet. This would lengthen the ])ortage to about 80 miles, but it has been perceived that we ex])erienced difficulties far below this Inst mentioned ])oint. This fact is sufficient to show the error of those who have sup])osed that a canal of only eight or ten miles would he necessary to provide navigation between Lake Michigan and the Illinois. A canal of this length would, indeed, ])rovide communication which already exists at certain seasons between diicago Lreek and the Des Plaines but must fall far short of the grand purpose. *********** (Abst., p. 1050.) ‘^AVe 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 parts of the bed of the Illinois and Des Plaines, which we have not personally examined. (Abst., p. 1050 ) ‘‘The computed distance from the ford of the Des Plaines to its connection with the Kankakee is about 45 miles. Fif- teen miles of this distance consists of Lake Joliet, and the remainder is almost eciually divided between ripples and still waters. (Abst., p. 1050.) (It will be noted that the author here states that the distance from the ford of the Des Plaines to the confluence with the Kanka- kee is 45 miles, and that the portage was lengthened to 30 miles, leaving an estimated 15 miles for use of river. Mount Joliet in fact is shown by the testimony of Flanders and others to have stood at the head of Lake Joliet, in fact about 11 miles above the confluence. In other words, the summer portage extended and the proposed canal was to extend into Lake Joliet, below the Joliet slope.) RAPIDS IN THE ILLINOIS RIVERS SHOULD FEED CANALS. “The next obstruction occurs at the Kickapoo Rapids’’ (in the Illinois River) “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 can- not be less than 35 or 40 feet. The Illinois in passing these 4s:) rapids spi-oads ovor a wide sur’fac'e and was r-(‘dii(‘(Hl lo a de})tli of a few inches, lieiUH^ it has h(‘(ni said lliat by cutting a channel in the r()(*k so as to coiu'entrate the volinn(‘ a, ^ood and sii(li(*ient navigation wonid he afforded for boats of eight oi- ten tons burden. By a similar labor the wliole seri(is of ra[)ids could he init)roved and at })erhaps comparatively small ex- l)ense. l>iit it may be a (piestion whether this s})ecies of snc- cedaneous canal ling as calculated would answer any availaf)le purpose. We believe experience has proved it clieaper in the end to open an entirely new cliannel than to im])rove the nat- ural bed of a shallow or rapid stream, of one that is subject to sudden fluctuation from vernal or autumnal freshets. This appears fo be llie ])roper construction and a])plicable to the )t()])le idea of the celebrated Brindley, 'that streams irere only made to feed canals ' — the principle of v/liich, so far as we are capable of judging, appears to he adopted by modern engi- neers, and has been particularly riaidly a])plied in the exist- ence of the Erie Canal. (Abst., ]). 1051.) *******#### SCHOOLCEAFT NAVIGATION DIFFICULTIES NO HAKBOE AT CHICAGO. ‘‘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 fre(]uently imposes. Tt is well known that after passing the Manitou Islands there is no harbor or shel- ter for vessels in the southern part of Lake Michigan ; and that every vessel which passes into that lake after the month of Septenilier runs un imminent hazard of shipwi'eck. The ves- sels bound to Clucaiao come to aiudior lupon a gravelly bottom in the lake, and disCiarging Vvdth all possible speed, hasten on their return. (Abst., p. lOob.) BAR AT MOUTH OF CHICAGO ElVEE. “The sand wdiich is driven up into the mouth of (Chicago Creek will admit boats only to ])ass over the bar, though the water is deep enough to allow vessels to lie above. Among the expedients which have been proposed for keeping the mouth of this creek clear of sand, one of the most ingenuous and per- haps 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 ])ressure of the water to drive out the accumulated sands. It is somewhat ])robleniatical whether a safe and ])er- manent harbor can be constructed by any effort of human in- genuity, upon the bleak and naked shores of these lakes, ex- l)()se(l as they are to the most furious tempests. And we are iiielined to think it would be feasible to construct an artificial island off the mouth of Chicago Creek which might be con- nected by a bridge with the main land, 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 abundant near the entrance, in the Green Bay, and if built on a scale sufficiently liberal, it would afford convenient sites for i\\\ the storehouses recpiired. (Abst., ])p. 1056-7.) *********** LOCATION OF CANAL CANAL REPORT OF 1875. The map by Paul and Post gave several alternative routes, con- cerning which they said : ‘^Vandalia, 3d January, 1825. To the Speaker of the House of liepresentatives : Sir: “ The Canal Commissioners have the honor to enclose the re- ])ort required by an ‘Act,’ &c., accompanied by the report of the engineers to them with the maps, plans and documents re- lating thereto. (Abst., p. 1067.) *********** THE PAUL AND POST SURVEY. “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 River, with a mutual understanding result- ing from, a cursory examination of the topography of the coun- try, made in the autumn of 1823, to confine the operations of leveling to the north side of the Rivers Illinois and Aux Plaines and in the valleys of those rivers, in conse- quence of which the party at Chicago, after sounding the lake near the shore, and sounding and meandering the Chicago River to its head (the waters of which were found stagnant and on a level with the water of Lake Michigan) proceeded leveling in the direction to the Ford of the Des Plaines, where they crossed that stream and descended on the north side in its valley, until the two companies intercepted each other in the front of Mount Joliette. (Abst., p. 1073.) OBJECTS AND CHARACTER OF THE SURVEY A PRELIMINARY WORK. “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 convenient point on the Illinois River, below the Rapids, and to consider the practicability and probable expense of constructing a canal connecting those points, the undersigned have confined them- 487 selves no further to location than nierely to designate the two extreme points, the head of the (hiic'ago lliver being one and the confiuenee of the Little Vermilion and tlie 'Illinois being the other, the deptli of the water between this point and the raf)ids being insufficient for the purposes of navigation, and the na- ture of the adjoining shores of the rivers being unfavorable for the object re([uired, it was deemed advisa})le to de- scend 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 being near the bluff, and having, in its immediate vicinity, but a small strip of ground, at any time, subject to inundation. (Abst., pp. 1078-4.) * * * * * * * * # DESCRIPTION OF DIFFERENT ROUTES. ‘ ‘ What the undersigned denominate different routes are the variations which may be given to the upper part of the route lying between the head of the Chicago Eiver and a point in the River Des Plaines, near the head of He a la Cache, or Cache Island. Prom this point to the mouth of the Little Vermilion all the routes are the same excepting in that from A to H, by which it is contemplated to use the water of Lake Michigan alone for a feeder. By this route, after passing the Riyer Ties Plaines by an aqueduct at H, the canal will communicate with the principal line at K, and thence proceed to the mouth of the Little VhuTiiilion. To avoid tautology and circumlocution in our subse{juent obsecvalions, relatively to the variations here indicated, we will denominate the route from the head of the (Iiicago by the Ford of Anx Plaines at B and thence by K to be the first route. (Alist., p. 1079.) *********** DIMENSIONS. AMOUNT OF WATER DEMANDED BY CANAL. ‘‘In the first place, assuming the dimensions of the locks as we have shown, to-wit: 76 feet long and 14 feet wide, having straight and perpendicular sides, and supposing the canal to be full, the passage of each boat will require 8,512 cubic feet of water. Then if we suppose the time recpiired for filling and discharging the lock and passing the boat, to be 15 minutes, we shall require for both branches of the canal, emanating from the reservoir to the ford, 68,096 cubic feet in an hour. To this expense must be added the water lost by evaporation, leakage and absorption. * * * We shall have for an hourly aggregate demand 74.520.2 cnliic feet. (Abst., })p. 1087-8.) THE ADEQUACY OF THE DES PLAINES AND ITS TRIBUTARIES. “Now, as the River Des Plaines has been ascertained to fur- nish in each hour 72,000 cubic feet, and if we add to this 1,000 I'ecit vvliK'li tli(‘ i>a(‘k de la Pointe Aux (dieiios is supposed (‘apal)l(‘ of riirnishin^ in an hour, and '22y)i)i) (*u})ie feet which it is supposcid may })e drawn from the spring })rooks to he met with on the route between tiie Ford and Caclie Island (it f)eing lialf the a(‘('ession found })etween those two })oints) and (),(}00 ('ul)i(‘ feet iXM'eivahle through otlier small streams, between (ku'lie Island and the Du Page, we sliall have an hourly fund of 10 1,000 ('u])ic feet; hence the i)rol)able liourly surplus of water on this route may ])e estimated at 20,980, or, in round numbers, say 27,000 cubic feet. (A})st., p. 1088.) “Tlie distaiK'e above examined is the only ])art of tlie route on whic'li the least a])])rehension of deficiency of water can ex- ist, for tlie Du Page, furnishing 114,000 cubic feet, * * * give i)ositive assurance of an abundant supply for the re- maining part of the route.” (Ahst., ]). 1088.) ( Lt will be observed that this report, which was communicated to the Legislature in January, 1825, reports the work done in the autumn of 1824. The passage most relied on by the defense states the following) : ‘‘The undersigned have confined themselves no further to location than merely to designate the two extreme points, the head of the Chicago Piver being one and the confluence of the Little V ermilion and the Illinois being the other, the depth of water between this point and the rapids being insufficient for the purposes of navigation.” (Abst., p. 1074.) ‘^This point’ ^ is the confluence of the Little Vermilion and the Illinois; and the parenthetic suggestion by the surveyors on what they call “a cursory examination,” is that the depth in the Illinois Piver between those two points was insufficient for navigation. This is the point where the Illinois Piver spreads out exceedingly wide and shoal by reason of the bar at the mouth of the Little Ver- milion. This is the bar marking the point at which Patrick Ken- nedy left the river in 1773, which he described August 9, 1773, as “Sixty miles from the forks (of the Des Plaines and Kan- kakee) and 270 miles from the Mississippi.” (Imlay, p. 510.) (A])st., }). 940.) This is the point where Schoolcraft left the Illinois Piver in August, 1821. (Abst., ]). 1C50.) This is sixty miles west of the forks, aud the phrase that there is insufficient depth for navigation at that point has nothing to do with the depth of water in the Des Plaines. There may be ten times the amount of water in the Illinois at that ])oint that there 481 ) is at the Des IMaiiios, and yet it he so s[)j'ea(l out ()V(*r the slionis as to be less than six iin'lies deej). Sehooh'raft descn-ihes it in the passage (jnoted above as ‘‘scarcely eight or ten inches decip in any place, and often less than four/’ while he descri})es the Des Plaines as two feet deep at tlie ford, and from 12 to 20 inches deep nt the site of this dam, over the top of the submerged tree, which was three feet thick as it lay on the rocky bed of river. (Abst., p. 1041); Abst., p. 1056.) The bar itself is shown on “Cooley Exhibit 29,” Atlas, p. 8972, (Abst., }). 1982), being the profile of the np])er Illinois valley from Joliet to Henry. At the mouth of the A'ermilion Kiver the bar formation is shown extending out into the Illinois River, so that the channel itself is recjuired to form a letter S Vvnnding l)ack wards and forwaids between the banks. The phenomenon of a bar at the mouth of a tributary stream is universal. It appears in the evidence that a similar bar was formed in the Des Plaines by the sediment dropped by the conflict of cur- rents at the mouth of the DuPage, and that a much more serious bar still was formed at the mouth of the Chicago River by the de- posit of sediment at the meeting of the rivei- water with that of the lake. This is the same phenomenon which caused a delta at the mouth of the Mississippi and of the Nile and at the mouth of all tributary streams. It means that the sediment and alluvium washed down by the stream when it reaches the point of the mouth where the current ceases, is let fall and forms the bar. It is what this Court had in mind when it said in the 179 111., 214, at page 284, that “The Illinois River, while it is a navigable water, is also the natural outlet for the drainage of a large territory, with many other rivers and streams emptying their waters into and flowing through its channel. * * * ()f these rivers and creeks, and of the fact that they carry large (juantities of sand, sediment and debris into the Illinois river, and have for ages, the courts will take notice, and that still the Illinois River is a navigable river.” The Illinois is a navigable stream, although it has the im])assable Vermilion Rapids, Grand Rapids and Kickapoo Rapids; and al- though crossed by numerous bridges, and dammed at Marseilles. 490 (’ANAL HISTOKV LOST OK SLKVEV N E(iOTl ATIONS WITH FEDERAL (GOV- ERNMENT. Pnges (iO to I'l of the (4inal ( Viiniiiissioiier ’s Re])ort for 1000 narrate the negotiations between the State an<4 Fed- eral ({ovei nnient and the a(R'onnt of the preliminary sur- vey. From this it ap])ears that Mr. Post was paid $825 Seven assistants were paid amounts aggregating $173.56 for work on the survey; that Commissioner Erastus Brown was paid $225 for his labors, and that an act was passed for the relief of Eene Paul and others, by which Paul was paid $480, and the others were paid in all $237. This survey, therefore, cost $1,440.56. The Paul and Post survey was not regarded as conclusive of anything. Its authors had not the necessary experience. This survey was de- scribed by Governor Edwards to the Secretary of War, thus: (Canal Kep., 1900, p. 71.) (Trans., p. 6375.) ^Wopy of letter from Governor Edwards to the Secretary of War. Executive Department, State of Illinois, ^^28th January, 1828. ‘^Sir: As the Legislature of this State will, doubtless, at its next session, make provision for commencing the canal, to con- nect the waters of the Illinois River and Lake Michigan, I beg leave, on behalf of the State, to request that a survey of a proper route for it may be made by some competent offlcer or officers of the Engineer department of the United States. survey has already been made under the authority of this State, but as the engineers employed were without the benefit of that practical experience^ which the great importance of the object should command; and as the United States, retaining every alternate section of land through which the canal is to pass, have a direct interest in its judicious execution, in refer- ence to the public domain ; the measure solicited seems not less demanded by the interest of the United States, than to this State, and therefore I permit myself to hope it will be adopted.” The Secretary of War replied, February 18, 1878, consenting for the War Department, to detail an engineer, if Congress should empower him so to do, to make such further survey. (C. Rep., 72.) From this it appears that the survey was of a primitive and tentative character. OF THF (^ANAl.. V.)] l^igos 7o to 75 ooTitaiii the report of Deeeniber 1 8, 1 880, })y J. M. Buoklin, engineer. (Abst., p. 1855.) He deseribes the i'ont(^ as following the Cliic'ago River, tlie niai'gin of Portage Lake, sti'iking the Des l^laines River at the Riverside ford, following the fiver’ down to the Ansoganasbkee swamp, wliere the Sag puts in, the erossing of which he says will be very ex})ensive and jrroposes us- ing tire Calumet as a feeder, saying: ‘‘The Kiver Des Plaines when low affords a very inconsider- able quantitv of water.” (Canal Rep., p. 74.) (Abst., p. 1856.) The report of the Canal Commissioners of December 27, 1830, occupies pages 75 to 80 and deals with the selection of lands under the United States grant, the platting of Chicago and selling of lots there and predicts that the remaining lots “would with proper care and management yield a very hand- some inciease to the canal fund” (Ibid., 77). (iVbst., p. 1857), and urges the construction of a safe harbor at the mouth of the Chicago River. It further discusses the cost of the canal, finds that it will exceed one and one-half million dollars unless the resort to the Calumet and the Sag as a feeder is adopted, by which the first 18 miles will be reduced to $160,000. Page 82 is occu})ied by an account of a federal survey being made by Dr. Howard and other engineers. This is followed by the statement on ])age 82 : “Charles Dunn, the Commissioner who remained at Chi- cago, engaged Mr. 1. M. Buckley, a scientific and practical engineei from the Miami, Louisville and Portland (hinal, and Colonel Samuel Alexander, a skillful surveyor, determined under all circumstances to commence de novo and survey, level and stake out and permanently locate. On the 20th of October the Commissioners and ])arty left Chicago to perform this labor and returned November 12th following.” (Trans., p. 6380.) To this de novo location these engineers devoted tu'enty-one days. n FG I ST. A I O N - — R A 1 1 . H O A I ) \U: H S U S C A N AT. . In 1831 the legislature passed an act to jTrovide for the construc- tion of the canal, and authorized the Commissioners to em})loy an engineer to ascertain “whether the construction of a railroad is not preferable, or will be of more public utility than a canal.” 41)2 \ Noveinher 22, 1S2)1, A(4in^ CV)inmLssioner Dunn reported against tile canal and in favor of tlie railroad, (p. 80.) This was con- ('iiri'CMl in by tin' Dresidcnit of the l>oard. (Abst., p. 1859.) WA'PEH suinn.Y. lieport of Engineer Bucldin, January 1 , 18-)2). lie finds (p. 88) tliat after using the Calumet the canal will need “;in additional sujip’v of 102,400 cnbi(‘ feet per hour” (Abst., p. 1800), and says : “The Diver Des Plaines, in most seasons, u'()uld alone make np the deficiency, but in the fall of 1830 {a season of extreme drought) its discharge was at one period reduced to 00,000 feet per liour.” ([>. 88.) (Abst., ]). 1800.) RESERVOIRS. Engineer Bucklin proposes using the Ausoganashkee swamp as a reservoir ^^as it receives the drainage of the countrv to a great extent.” (p. 88.) (Abst., p. 1800.) This drainage of the country to a great extent by this great swamp which originally fed into the Des Plaines was here planned to be cut off from the Des Plaines and used as a reservoir to feed the canal. It was indeed cut off from the Des Plaines and the river de])leted to that extent. USE OF FEEDERS. Engineer Bucklin then discusses the use of various streams as feeders and estimates the Du Page Eiver as discharging into the Des Plaines 415,000 cubic feet per hour, at a point 3.07 miles above the mouth of the Kankakee. (Canal Eep., p. 89.) (Abst., p. 1801.) The size of the Des Phiines for the 3 2-3 miles from the mouth of the Du Page to the site of the proposed dam is, therefore, the size of the Des Plaines as it was at the mouth of the Du Page plus 415,000 cubic feet per hour, or 7,000 cubic feet per minute, added to the 2,000 feet per minute of the Des Plaines in ordinary stages and 1,000 cubic feet per minute in the dryest season and the lowest stage. It was contra tliat the figure Tor the Du was a uiis- priiit for 115,000 cubic feet per hour, corresponding to tlie Paul and Post figure thereon of 114,000 cu!)ic feet, which would amount to 1,01() feet per minute, to be added to the upper Des Plaines, with its 2,000 ordinary and 1,000 minimum, wliicli together would make 0,91 () feet at the site of the dam. DES PLAINES VALLEY DTFFKmLTIES CF CONSTRUCTl N(J CANAL IN— RAIL- WAY AND CANAT. COMPARED. Pages 89, 90, Engineer Bucklin discusses the difficulties of canal construction in the valley and attaches importance to ‘Hhe 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.” He particularly complains (p. 90) of the difficulties of construc- tion just above the confluence of the Kankakee and Des Plaines, where the level is too low to admit any of the small streams passing under the canal, and says: ‘^The soil also being mixed with sand adheres together very slightly and when saturated with water has a great tendency to slip over where the inclination of the hill is moderate. Con- siderable embarrassment to the navigation of the canal may be exoected from this cause liesides the expense of repairs.” .(Abst., p. 1892.) These are some of the difficulties whichi Engineers AVilliams. Cooley and Kramer found with the construction of the proposed dam. They found that this site, where the canal is built on a side hill, was subject to all these dangers, and that the construction of the proposed dam with a mere artificial bank between the canal and the great water-power pool — a hank made of this same slip- pery soil — ivould yreatly increase the danger to the canal, and that no provision was taken, and none shown in the canal plans, for any protection against this danger. DEEP CUT PLAN ROCUv EXCAVATION — USE OF THE DES PLAINES. Pages 90 and 91, the engineer, Bucklin, discusses these topics and the fact that the canal would lie below the level of the river, and says : ‘‘A liberal price is allowed for the rock excavation, the most important item,^ * as it is liardly possible to anticipate tlie limits of the expenditure wlien 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 will con- seciuently be liable to from the water of the river finding its way through the numerous fissures of the rock into the canal/ ^ (Abst., p. 1868.) The depletion of the river by means of the canal which after- wards came to pass, Avas here predicted in advance, in 1880. DES PLAINES RIVER WHY NOT USED FOR CANAL. The report here discusses the fact that the minimum discharge of the Des Plaines Eiver is 60,000 cubic feet per hour, while the canal vdll require 86,400 cubic feet per hour (that is, ‘‘one lock chamber full of water every 15 minutes, ascending and descend- ing”) and remarks: “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 * * * 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 Des Plaines at its lowest stage/’ (Id., p. 92.) (Abst., p. 1864.) It will be observed that the great difference between the water in the canal and the water in the river, is that the river in its nat- ural bed does not suffer depletion by lockage and leakage and fil- tration, as the canal does. The flow of the river in its natural bed, as measured, is the flow of what there is left after its natural deple- tions have occurred. In taking the river out of its natural bed and turning it into an artificial bed, parallel to and but 10 feet lower down than the river, the leakage, filtration and loss by artificial lockage, is, as he says, 420,000 cubic feet per hour, while what was actually needed was 86,400 cubic feet per hour. And this was to allow them a full lock chamber every 15 minutes for boats ascending and descending. The engineer Avisely took the maximum possible demand for the canal and compared it with the minimum possibility of the river, and then said that the river water, transferred to an artificial chan- nel and subjected to loss by lockage, leakage and filtration, would not 1)0 snHi(Mont to food a, ('anal to l)o inaiiilairKul poi-rnarioritly 4.! feet deep. Kilt this is a very different proposition. The river is double its miniraimi for half the year; it is more than (piadruple its minimum for a third of the year, and it is not subjected to the losses incident to an artificial channel. Again, as we have seen, 2 feet of water is ample for a navigable stream in a state of nature. The fact that it alone, when depleted by transfer to an artificial channel, is not sufficient at its minimum which exists for 30 or 40 days, to maintain a stream 44 feet deep all the year around ^ not only does not prove that the river is not navigable, but constitutes a good measure of proof that for a third of the year the river is navigable so far as volume of water is con- cerned. BUCKLIN OPPOSED TO BOTH RIVER AND CANAL. ANY WATER COMMUNICATION WHATEVER THOUGHT IMPRACTICABLE RAILROAD PREFERRED. Engineer Bucklin says : ‘‘In the rocky and cavernous district of country to which the location of the great part of the route of the canal is con- fined, there are too many difficidties to be reasonably appre- hended in carrying it into successful operation, to justify the establishment of a water communication on any route or plan ufhatever, so many obstacles are opposed to the construction of a canal, the examination of a route for a railway ivas very successful in developing its great advantages for the adoption of that species of improvement.” ((\ Be])., }). 92.) QKbst., p. 1864.) Then after describing the route of the railway to Mount tfoliet, he says that it corresponds with that of the canal, though not en- tirely the same, “the inclinations of the railway frequently allow- ing a better selection of ground than that to which the levels of the canal are confined.” Pages 92 to 95 are devoted to the discussion of the superior ad- vantages for a railroad, concluding (p. 95) : “In reviewing the capabilities of the country between Chi- cago and the foot of the rapids of the Illiuois River for the construction of a canal or railroad, it would seem * * that the obstacles opposed by nature to the formation of a good (■(Uial on miij route or plan irhaiever ai-e sucli tliat notliing (‘Oiild Justify the undertaking, but the fact of its being the only means,” ete. “Foi* this reason the unparalleled advantages presented on the route of the railway * * * are invested with addi* lional Viilue,” el('. (p. ho.) (Al)st., ]). LShf).) We have seen (Sehoolernft’s Travels in tlie Mississippi Val- ley, page odd) that the view wliieli prevailed in 1821, as applied to the proposed eanal, was what Schoolcraft calls ‘'the noble idea of the celebrated Brindley ‘that streams were only made to feed canals’ ” (Ahst... p. 1051), and we now see that th.e engineer who was em])loyed to lay out the route of the canal was determined to have a railroad. And in the constructions which followed, these two noble ideas were adopted in practice. The river was displaced as the line of travel and made to feed the canal, and then the canal was displaced as a line of travel and its right of way made to serve as a road- bed. EFFF.CTo OF THE R VTLRO \D SCHEME CANAL COMMISSIONERS ABOL- ISHED MEMORIAL TO CONGRESS BY STATE LEGISLATURE. Following this communication the Act of March 1, 1833, was passed, abolishing the office of Canal Commissioners. (Id., p. 104.) December 20, 1832, the State Legislature memorialized Congress, stating that “the expense (of the canal) will greatly exceed the amount originally contemplated ; that a railroad or turnpike upon the whole will be more useful and less expensive,” and pointed out that the land grant was restricted to canal purposes, and prayed for a modification in favor of a railroad or turnpike. (Id.) ]\rarch 2, 1833, Congress passed an act permitting a railroad to he substituted. (Id., p. 105.) In December, 1834, Governor Duncan in his message to the Legislature again favored the canal, and in January, 1835, the act for the construction of the canal was passed. The people re- mained determined to have a canal. The canal history states: “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.” (]). 105.) (Abst., p. 1867.) In 183(5 another act lor the construction of the canal was passed at a special session of the Legislature convened by Governor Dun- can (105-()), and a new hoard of Canal Commissioners were ap- ])ointed and began woi'k. (Id., j). lOfi-^f.) (Aljst., p. 18(57.) THE WESTERN TERMINUS OF THE CANAL. On June 23, 1836, citizens of Ottawa petitioned the Canal Com- missioners to provide for slack water navigation up the Illinois over the bar at the mouth of the Little Vermilion and the reef at Starved Eock, and practically to terminate the canal at Ottawa at the mouth of the Fox River, as planned by the treaty of 1816 and as recommended by Engineer Bucklin in 1830. (Canal History, p. 91.) For petition by citizens of Ottawa, see Canal History, p. 109. (Abst., p. 1868.) The Canal Commissioners replied that the question was not new; that the Legislature had accumulated a large fund of information as to each plan, both in relation to the safety and stability of navi- gation, and to the increased revenue derivable from State prop- erty by terminating the caned as loiv down the river as ivas con- templated in the grant of lands from the Government of the United States. For can it be doubted that the tenor of that grant had some influence on the decision.” (Canal Report, p. 109.) (Abst., ]). 1868.) Here was the avowed declaration that the canal was made as long as possible in order to get as great a land ginnt as possible, and made by the Commissioners themselves in response to a peti- tion from the citizens of Ottawn to have the terminus located there. The letter of the Commissioners to the citizens of Ottawa admits that the still water navigation would be the better method of oper- ating the river, and that the engineer who had planned the canal had so reported; but (continues President Thornton for the board) ‘On his zeal to demonstrate the superiority of a railroad over either mode of water communication he admitted a steamboat canal around the rapids to be too precarious,” etc. The board conclude that they ^Aleem themselves unauthorized at this time to cause a survey of the rapids of the Illinois Eiver with a view of their ultimate improvement for slack water naviga- 498 lion. * * * In ('oining to tlii.s oonelusion the Board of Com- missioners are influenced, in tlie first ease, by the consideration tliat if a continuous canal should l)e shown to be too costly for its benefits, a still irater navigation ivill he the only alternative. * * * (Signed) W. F. Thornton, President Board C.^omms. T. & At. CanalP^ (Canal liopoi't, 11P) (i\bst,, ]). 1870.) it thus appears that tlie question whether the canal should be ci continuous canal or simply a canal around each of the rapids, or slack water navigation over the rapids of the Illinois ivith naviga- tion hy the river the rest of the way, was a subject then under de- bate, and that the desire to get as long a canal as possible in order to get a land grant five miles wide on each side of the canal, was the controlling and deciding force. THE ENL.\RGED PLAN OF THE CANAL— PtEPOFtT OF 1886. The new board reported that the magnitude of the undertaking had been miscomprehended; that the largest previous estimate of cost was about $4,000,000, and that that was too small ; that double that sum would be required to build a canal by a deep cut plan, fed from Lake Alichigan ; that the new Act required a canal 45 feet wide, where the old figures were based on 40 feet width ; with other enlargements ; and that the cost was such as to make it necessary to resort to the feeder system and shallow cut. (Canal Report, pp. 118, 114.) (Abst., p. 1871.) The Commissioners further reported tl-at they had decided on a canal 60 feet wide at the top, 36 feet Avide at tlie liottcm and 6 feet deep, to conform to the Act. (Id., 114.) (Abst., p. 1871.) THE MACADAM AND PLANK ROAD ACROSS THE SWAMP FROM JOLIET TO CHICAGO. In the annual report for 1886 the Commissioners report that the heaviest expense was in building this macadam and plank road OAmr the Saganashkee Swamp, owing to the total absence of a road along the route of the canal, which passes, for several miles, through marshy, wet prairie, and lieaA^ timber. Some steps must be taken to secure free access to the line at all seasons of the imAR.” (Canal Report, p. 118.) And on page 141 of the Report for 1900 it is further said: 49 !) ‘‘During the year 1836 the Canal Commissioners (construct- ed, by grading and bridging, what was then known as the Saganaskee Eoad, now known as Archer Avenue and Archer Bead, extending f rom State Street, Chicago, to Joliet. ''The total absence of a ro(ul along the route of the canal * * * to secure free access to the line at all seasons of the year.’’ (Abst., p. 1872.) These were the reasons for building the road. That is, these, and the building of Archer’s addition, as noted by Woodrutf. And for these $47,000 of canal money was paid out. It was not that there was not good travel by the river for six months out of every twelve, but it was to get a road along the canal at all seasons of the year. The contention that in the early day, prior to the hmlding of this road, the travel went at all seasons of the year from Chicago to La- Salle, by means of wagons solely, and not by the river, is shown to be wrong. It was not until after this $47,000 road was built that the wagon route became an all-the-year-around proposition.) TH^ EFFEtCT OF THE CANAT. ON THE NATURAL RESERVOIRS FEEJ)IN(; THE DES PLAINES. From Report of Chief Engineer Gooding, December, 1836: “Two lines of levels were run across tlie country lying be- tween Chicago and the Des Plaines Kiver, near the mouth of Portage or Mud Lake, the one commencing near the mouth of a broad slough, on the north fork of the south branch of Chi- cago river, at the point where the former canal surveys were commenced, the other,” etc. {(kinal Rep., 1900, p. 119.) (Abst., p. 1873.) PORTAGE LAKE. WATER COMMUNICATION WITH CHICAGO RIVER. “This line passes over ground but little elevated above the surface of Portage Lake at an ordinary stage of water, and which is mostly inundated during the floods of the Des Plaines, the waters of ivhich, it is well known, freuiiiently flow across the loiv country into the south branch of the Chicago River. USE OF PORTAGE LAKE AND DES PLAINES FOR CANAL. “A particular examination was also made of Portage Lake and of the Des Plaines River with the view of occupying por- 500 tioiis of eacli 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 about six miles toward Chicago River, nearly in the direction of the canal line. The surface of the water at an ordinary stage is lOJ- 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. EXPENSE THE OBJECTION. ‘ ‘ To excavate the canal to the requisite depth through these ponds and the marshes on their borders, would be attended with great difficulty and a cost far exceeding that of making the through cut along the borders of the marshes on ground more favorable. (Abst., p. 1873.) OCCUPYING CHANNEL DIFFICULTY OF CONTBOLLING AND KEEPING OUT WATEB WHILE EXCAVATING. ^ ‘ The examination of the Des Plaines River resulted no less unfavorable than that of Portage Lake. The bed of this stream for 13^ miles below the point where the canal line en- ters the valley, except in a few places and for short distances only, is from 8 to 12 feet above bottom of canal, and nothing whatever could be gained by occupying any portion of the channel, as the difficulty of disposing of or keeping out the waters of the river to make the necessary excavation ivould more than balance the diminution of the quantity to he exca- vated hy such location.” (Lanai Rep., p. 119.) (Abst., p. 1873.) And here the engineer who actually constructed the canal an- swers the inquiry which is occasionally put: ‘‘Why did they not use the river P’ His reason was that to make a canal 6 feet deep would require some excavation in the river bed, and that there would be difficulty in keeping the water out while he was putting the excavation in, and that it would be easier to dig a fresh one alongside. This, and the building of a long canal to get a long land grant, were the reasons the river was not used. They have nothing to do icith the navlgahility of ihe Des Plaines. 501 'IMIK LOCATION OK TIIK JtOUTK. The new engineer, Mr. Gooding, under the new Board of Com- missioners under the new statute, of 1836, proceeded to lay out a new route, which he describes at considerable length in the report, pages 119 to 126. THE DU PAGE-DKESDElH SECTION DIFFICULT NATURE OF THE CON- STRUCTION DANGER TO THE CANAL FROM SLIPPING OF EM- BANKMENT ENGINEER GOODING ^S SUGGESTION THAT THE RIVER BE USED. About two miles below the crossing of the Du Page a very difficult and expensive portion of the line commences and ex- tends nearly to Dresden, below the mouth of the Kankakee River. The bluffs, which 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 hmlt in the river at the base of the bluffs will require slope wall to pro- tect it against abrasion from the flood waters of the river, for an aggregate distance of 2 miles and 50 chains. ^^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 by earth taken either from the top of the bluff or from the opposite side of the bluff, for the ex- cavation of any portion of the prism of canal in the bluff would increase its tendency to slip and consequently endanger the canal. ‘‘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 ex- amination 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 towing path constructed along their base, so as to pass this difficiilt portion of the line by slack water at much less expense than the present estimate of an independent canal^ and ivotdd, un- doubtedly, be quite as secure in improvement. By raising the water 15 feet {and a dam of this height can be rendered per- fectly secure, for there is a good rock foundation) the line would be thrown 10^ feet lower than the survey made to Lock No. 8, of 8 feet lift, between the Aux Sable River and Nettle 502 (vreek, and 2 ), feet loAvei* tlian tlie line surveyed from tliis lock to Locks Nos. 9 and 10, a short distance above Marseilles.” Lanai Re])., 124 .) (Abst., )>]). 1875 - 1870 .) And here Lngineer (Jooding i‘(‘])ented the o])inion of Mr. Bnck- lin six years before, that this point at the mouth of the Kankakee was the most difficult point for the maintenance of the proper em- bankment and protection of the canal against danger from the breaking of the bank. It was the same opinion that Engineer Wil- liams, Engineer Cooley and Engineer Kramer expressed in -the present trial as to the increased risk to come from such a con- struction alongside of the canal. LOCATION OF THE AVESTERN TERMINUS. ^‘The termination of the canal is made on the corner of Section 21, in Township 33 N, K. 1 East of the 3d principal meridian.” (Canal Eep., 126.) (Abst., p. 1877.) GOOUING’s suggestion to use THE RIVER HOAV IT AVAS ACTED ON SHALLOAV cut; HIGH LEAmL ; AVITH RIVER FEEDERS. Engineer Gooding ^s recommendation and the reports of the Commissioners were referred to the Legislative Committee on canal lands. February 15, 1837, that committee reported : ‘^The committee on canal and canal lands, to which was re- ferred 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 Kepresentatives, have had the various matters submitted to them under con- sideration, and submit the following as the result of their de- liberations. *********** ^‘The first change proposed by the committee of the House is upon the Summit dhdsion of the canal line, thirty-two miles in extent. (Abst., p. 1877.) SHALLOAV CUT HIGH LEVEL AVITH RIVER FEEDERS. ^‘The proposition is to adopt the high level, as run by Mr. Bucklin, ten feet above the surface of Lake Michigan, using the Calamic and Des Plaines Kivers for feeders. 503 ]Ml>HOVEMEiNT OF ILlilNOlS IllVER TO HEAD OF FAKE iiOlAV/W ‘‘Tlie second is to substitute the improvements of tlie Illi- nois River, from the foot of the rapids to the head of Lake Joliet, for steam iiari(/ai ioii , hy means of locks and dams. (Abst., p. 1878.) DISCUSSIOIT OF HIGH LEVEL FEEDER PROPOSITION. ‘‘The reasons urged by the committee of the House in favor of the first changes proposed are: “(1) The large sum which the canal will cost upon the present plan. “ (2) The length of time required for its completion. “(3) The difficulties of construction; and “(4) That a better plan can be adopted.” (C. Eep., 133- 134.) (Abst., 1878.) The House committee favored the open river navigation of the Illinois and Hes Plaines from the foot of the rapids to the head of Lake Joliet. The Senate disapproved it. Their report is set out, pp. 133-136. SUMMARY OF CANAL HISTORY- — TERMINI OF CANAL. SENATE COMMITTEE'S REPORT^ 1837. The Senate summarized former history thus : “In the examination of the questions now under considera- tion, the committee will first review the Legislative action hearing on the point. “In 1823 an act was passed organizing a board of commis- sioners. * * * examination and survey were executed under their direction by Messrs. Paul and Post, both of whom stood high as men of science, talents and integrity. “In January, 1829, an act was passed by which a Board of Canal Commissioners was organized, who were required to locate the canal to effect a navigable communication between Lake Michigan and the Illinois River. The canal to be at least 40 feet in width at the summit of the water line, 28 feet wide at the bottom, and of sufficient depth to contain at least 4 feet of water; and to be furnished with such looks, aqueducts and dams as might be required to secure a safe and convenient navigation for boats at least 75 feet long, 134 feet wide and drawing 3 feet of water. No point is fixed in either of those acts for the termination or commencement of the canal, nor ivas any direction given as to the ivaters to he used as feeders. “In 1831 the last act referred to was amended, and an exam- ination was required to be made of the Illinois River, from the iiioutli of Fox liiver down to the head of steamboat navigation, with the view of ascertaining whether tlie Illinois Eiver could he improved by dams and locks, or otherwise, so as to secure its navigation as far upwards as the mouth of the Fox River. All (ou'.mination was also required of the Calamic River to as- certain its probalhe sufficiency as a feeder for that part of the canal between tlie Chicago and Des Plaines Rivers. ‘‘In 1832-3, after an ineffectual attempt to change the char- acter of the improvement, from a canal to that of a railway, the Board of Canal Commissioners was abolished, and all further progress of the work suspended. “In 1834-5 another act was passed which provided that the canal shall not be less than 45 feet at the surface, 30 feet at the base and of sufficient depth to insure a navigation of at least 4 feet, to be suited for ordinary canal boat navigation, to be supplied with water from Lake Michigan and such other sources as the Canal Commissioners may think proper. No point of termination v:as fixed hy this act. (Abst., p. 1879.) WESTElRX terminus finally fixed JANUARY 9, 1836. “The act of 9th January, 1836, under which the late Canal Commissioners acted, provides that the canal shall commence at or near the Town of Chicago, on canal lands, and shall ter- minate near the mouth of, the Little Vermilion River ^ in La- Salle County^ and on lands owned hy the State. * * * It may here be remarked that an examination of the various laws will show that the provisions upon the point under con- sideration were not adopted hy accident and without design. ‘ ‘ The committee of the House in order to prove the practica- bility of the change proposed, have made calculations as to the quantity of water required to supply such a canal as is pro- posed to be constructed, and at page 10 of their report say: ‘Your committee feel assured that not only a sufficient quan- tity of water for all the purposes of the canal can be procured from these two sources {the Calamic and Des Plaines), hut that a large surplus will still remain. (iVbst., p. 1880.) THE SENATE COMMITTEE LEAVE TO MR. BUCKLIN THE QUESTION OF SHALLOW CUT VS. DEEP CUT, BUT NOT THE QUESTION OF OPEN RIVER NAVIGATION. “No member of your committee having sufficient knowledge of the science of engineering to risk his own judgment upon this question in opposition to the published opinions of gentle- men of acknowledged scientific information, they are compelled to rely upon the opinions of others, in whose judgment they have confidence. Mr. Bucklin, well known to the public, having 505 recently arrived at tliis place, the cliairniari of the coinrnittee addressed a note to him, which, together with the reply, is as follows: (Canal Eep., 135.) ^Vandalia, February 8, 1837. ‘‘ ‘Mr. J. M. Bucklin, “ ‘Sir: — I am engaged as chairman of a committee of the Senate, investigating the questions which have recently arisen in regard to the change in the plans in constructing the Illi- nois and Michigan Canal, and particularly the question in rela- tion to the abandonment of the project of supplying the canal with water from the lake, and resorting to the Calamic. Not being an engineer, nor familiar with the calculations in rela- tion 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 calculations here- tofore made by yourself and others in reference to the quantity of water in the Calamic, and to state the quantity required for the canal as at present proposed to be constructed. You will also state if there is anything peculiar in the character of the country to justify the erecting of a canal without providing the usual quantity of water for evaporation and leakage. All the documents, except the report made by you in 1830, will be fur- nished, if desired. (Abst.. pp. 1880-1881.) “ ‘Very respectfully, your obedient servant, “ ‘Wm. Thomas, “ ‘Chairman of the Committee on Canals,’ etc.” The following is Mr. Bucklin’s reply: “ ‘Sir: “ ‘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 per hour. They also gauged it at the Cache island, eighteen miles below, where they ascertained the discharge to be 117,000 cubic feet per hour. In October, 1829, it was gauged by Dr. Howard, U. S. civil en- gineer, 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 Calamic 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 Mr. Guion, assistant civil engineer, in the service of the United States, about the same time, and the dis- charge 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. r)()(; ‘Tlie allowance of TOO cubic feet y)er mile per minute for evaj)oration and filtration was assinned by me as the basis of all calculations in deliberating the minimum (juantity 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 proposition of one and onedialf 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 ])eing as the squares of the heights, the pressure will be more than doubled and the leakage (taking into calculation the great surface) in- crccised in pro])orticn to one and a luilf to one. (Abst., p. 1881.) “ ‘The quantity of water then that will be required to sup- ply the evaporation 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 departure from the established rule, in regulating the sup- ply of water. It is true the upper level is situated in a very wet country, but the levels below dependent upon the summit of water, are located on ground very badly calculated to retain it, and it is x)ossible 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, including feeders, to be supplied wuth water on the upper level is fifty-six 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. “ ‘Verv respectfully, vour obedient servant, “ ‘J. M. Bucklix.’ ” ((Maiai Rep., p. IhG.) (Abst., p. 1882.) [It will be ol>served (1) that the gauging of the I)es Plaines at Laugliton’s (the Riverside) Ford, August 8, 1830, was not by Biicklht, the writer, but was taken b\ him at second hand from “Messrs. Harrison and Guioii” (unknown), and this has been re]3eated frcm Bucklin ever since. (2) This was at a point on tlie stream above, and there- fore not showing the contributions from (a) 500 s(|uare miles of drainage area; (b) Portage Lake; (c) Saganas- kee swam]); (d) The Sag; (e) Hickory Creek; (f) Jack- son Creek; (g) Rock River; (h) Du Page River. The river at the ]mint in ouestion is larger bv all these fac- tors; and at Joliet it is larger than at Riverside ])y the first four. :)()7 {:>) This (‘rilicisin oF lh(‘ wai(M- supply oF 111'; I )(;s ri.-iiiies i\ud (hiluiuel jmd nil oF llu' (‘i-iii^-isins lli(;r(;()F in those i-opoiis oF the ('anal (‘n,i>ino(;i-s do not to IIk* anionnt of waters in ihc river in their natural i)la('e, l)nt to the amount of water availa))Ie after transfer to a de- f ached atnal and dejileted hij leakaae, fdtration and evapo- ration in their new artiticaal eartlien l)Ox; that is, over half the water is lost in picking it up out of the river and putting it %n the canald] So Gen. Wilson and this same Engineer Gooding, in recoin- mending to the U. S. Government a plan for a ship canal in 1867, said : ‘‘As all the water drawn from Lake Michigan and received into the Des Plaines and Illinois Rivers from trihntary streams will contribute to their channels for navigation, none of it be- ing LOST BY FILTRATION, the full depth requisite can be more certainly maintained than in a canalM (U. S. Engineer ’s Re- port, 1868, p. 446.) [Tlie natural river running in channel through the rock has for ages adapted itself to the materia] of its bed. Whatever loss by leakage or filtration it may sus- tain, the quantity measured in the flow of the stream is what is left after all those losses have occurred. To turn the river water into the artificial canal is to make it suf- fer all these losses over again. The artificial canal in earth loses over half the water from these causes; so while 60,000 feet per hour or 1,000 feet ])er minute in the Des Plaines is always, even in lowest water, avail- able at Riverside with large increments below, while in its natural channel, only 200 cubic feet efficient could be counted on the artificial earth channel after transfer, leakage and filtration.] FINDINGS OF THE SENATE COMMITTEE. The Senate Committee found that Indiana had some rights in the Calumet and was proposing to use it for a canal, and concluded that the Calumet and Des Plaines did not afford sufficient water for a canal and that it would not be safe to rely on the Calumet. The Senate Committee (pp. 137-8) argue against the shallow cut and say 'that “in order to construct such a canal as the United States has a right to expect, the waters of the lake must be uscdM Their reply is, in substance, that the nation has paid with a land grant for a canal national in scope; therefore we will use the waters ■m of the lake. This is still a discussion of deep cut vs. shallow cut. There is no discussion in the Senate report of the question of im- proving the channel of the river. The Committee say (p. 137) : ^‘The interest which the nation has taken in the project is evinced by the Act of Congress changing the northern bound- ary 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. ‘‘It has always been regarded as a national work, and the nation having furnished 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 people. 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 expecta- tion disappointed, and the beneficence of the national govern- ment abused by authorizing any other description of work.’’ (Abst., p. 1884.) [It will be observed that Engineer Bucklin opposed all canal projects wliatever in favor of a railroad; and that he had planned an independent canal for the whole length ratlier than a canal to Lake Joliet and an improvement of the river from that point on. Mr. Bucklin did not construct the canal. Engineer Gooding in large part did construct the canal. Engineer Gooding favored using the river from Lake Joliet on ; and he favored the use of the rivers as feeders.] Neither of the two plans was adopted in its entirety. The Buck- Uu plan of a canal 102 miles long with some use of water from Lake Michigan prevailed. The Gooding plan of using the feeders prevailed. The bulk of the discussion which has come down to us on the subject may be arrayed under the head of Shallow Cut vs. Deep Cut. The discussion of Engineer Gooding’s important suggestion while in the actual prosecution of the work, that the canal be stopped at Lake Joliet after passing the point now known as Dam No. 1, and improving the river from that point on, as pre- served in the canal reports, is confined to the simple proposition that the State had acquired the immense land grant upon the faith of a canal 100 miles long and therefore the improvement of the river ought not to be resorted to. The House supported Engineer 501 ) Gooding. The Senate supported Kngineer Bucklin. Bueklin and the land grant prevailed over Gooding and the House. This discussion demonstrates beyond cavil that Mayor Benyaurd, in the Report of the U. S. Chief of Engineers for 1884, was correct in saying: ‘^Looking at the matter from an engineering point of view, it is diiJicuU to understand what led originally to the construc- tion of the canal rather than the improvement of the natural cha/mel of the river/ ^'\ The Act of March 2, 1837, was passed as the conclusion of the matter. It provided for ascertaining the water supply on the route ^‘as now established’’ (i. e., from Chicago to Peru) and also for the Calumet feeder. The improvement of the river was ignored. Pages 144 and 145 is a description of the Saganaskee Swamp. THE BED OF THE DES PLAINES TREATED AS STATE PROPERTY. ^Ht was found that the Des Plaines 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 land, and securing to the State an important town site, which by any other arrangement, wouM have fallen on individual property. Convinced of the ])racticability of turning and dyking the river and that the flood of water of the Saga- naskee valley could be diverted into the Calamic, there was no further hesitation in canceling the contracts on the original circuitous route and locating a direct line costing upwards of a hundred and twenty thousand dollars less, and possess other obvious advantages independent of the town site which at no remote period must be worth a large sum of money.” (Canal Re])., ]). 145.) (Abst , i). 1887.) REFUS.AL TO MEASURE THE DES PLAINES IN A GOOD] YEAR. ‘‘Judge Wright arrived in 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 estimates, of the quantities of excavation and other work necessary to effect the object on the most favorable route of (which) the country was susceptible. At that time and through the whole summer the Des Plaines River was generally admitted to be unusu- ally flush, as was also the Calamic. No gauges were there- fore ordered, and consequently those of the Des Plaines made ])y the United States Engineers in 3830, and of the Calamic by Mr. Bncklin, were adopted as tlie basis of the investiga- tion.” (Id., 147.) (Abst., pp. 1887, 1888.) 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 of taking out a feeder, have saved water enough to propel a sin- gle pair of ordinary millstones. Repeated gaugings from the 20th of July to the 22d of August, and it was afterwards still lower, gave an average of less than the measurement of 1830.” (Id.) SWAMPS. “The fifteen sections extending from the Chicago River to the ‘Point of Oaks,^ eight miles, and lying through the low, wet prairies periodically flooded by the Des Plaines River through Mud Lake, have been completely defended against any possi- ble 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 gradually progressing from the ‘Point of Oaks^ to the Saganaskee swamp, and enough has been done to inspire the fullest confidence in the practicability and moderate cost of the work.” (Id., 148.) COST OF CONSTEUCTION — ^VALUE OF LANDS EQUAL TO COST. “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 cover, with very little variation, every expense for a convenient, sub- stantial and elegant canal, such as it ought to be for commer- cial economy, durability and State character. The original estimate of the same engineer, exclusive of the additions at Ottawa and the enlargement of the basin in Chicago, was $8,654,337.51, being $1,032,894.94 more than will be required to complete the work.” (Id., 151.) “In conclusion, the Commissioners reiterate the opinion, ex- pressed in the first annual report to the Governor, that ‘if these lands and town lots be very gradually and cautiously brought into market, reserving the chief part until the canal shall have been completed, and all its advantages clearly understood, there is more than enough 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 live or six dollars per acre if sold immediately, may be worth, a few years hence, from twenty to one hundred dollars. In- numerable instances of the kind might be adduced, some of them in the vicinity of the canal.’ ” (Canal He])ort, p]). 151-2; Abst., p. 1889.) A SEASON OF SEVERE DROUGHT 1838 . ^‘The value of the water power created here and at other points upon 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 Des Plaines River and any other considerable streams of the country have been nearly dried up, and probably three-fourths of the water-mills throughout a large portion of the United States have been standing still for the last three months.^ ^ (Canal Re])., 154; \bst., p. 1890.) LOCATION OF BASIN AND DAMS NOS. 1 AND 2 . ^‘Lock No. 4 brings the canal to the level formed by the pool of Dam No. 1. A short distance below said lock, the line runs into the channel of the Des Plaines River, 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.” (Id., 155; Cv}:st., ]). 1891.) EMBANKMENT AT DRESDEN. ‘‘From the Du Page to Dresden the line has been l)ut slightly changed since the first survey, but the quantity of slope wall to protect the canal at the Kankakee blutfs has been consid- erably increased to render the canal doubly secure at this exposed point.” (hi., 15(h A!)st., p. 1892.) [This is the embankment which is threatened by the pro- posed dam. It was regarded as a danger point from the be- ginning.] (from engineer Gooding’s supplemental report of December, 1838.) PROGRESS OF. WORK. HIGH WATER IN DES PLAINES THE STATE SIDE DITCH. “The streams for a great part of the year have been very high, particularly the Des Plaines River; but less interrup- lion to the exeeiitioii of tlie woi-k lias resulted from tliis 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 render the whole work perfectly secure during the highest floods.’’ ((’anal Mep., p. 101 ; Alist., p. 1892.) THE STATE SIDE DITCH. ‘‘Considerable progress has been made in the deep earth excavation between the Chicago Eiver 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 Des Plaines Eiver in time of floods, and which is to be formed of earth excavated from a ditch within the prism of canal.” (Canal ( cm. Kep., 1900, p. lOd ; Abst., p. 1892.) OTHER STATE DITCHES. “During the past year ditches have been laid out, placed under contract and partly executed from the Point of Oaks to Chicago Eiver, and from the mouth of Saganaskee swamp to Big Eun; the object of which is to receive and carry off the water which must otherwise drain into the canal, or ac- cumulate behind the snoil-banks. By the aid of these ditches, the water (except what falls behind the spoil-banks) may be effectually prevented from conveying deposit into the canal, and also from interrupting the progress of the work during the construction.” {('anal Com. Rep., 1900, p. 163; Abst., pp. 1892-1893.) (from resident ENGINEER TALCOTT^S REPORT OF DEC. 10, 1838.) CANAL OVERFLOWED BY RIVER DITCH TO CUT THE DRAINAGE. “Upon resuming charge of the line in March, 1837, I found nearly every section, one to fifteen inclusive, was the second time offered for contract in May, 1837. The unfavorable ap- pearance of the work (nearly one-half of which was over- flotved hy the river) prevented much competition, and the proposals received were considered much above the real value of the work. Sections 1, 2 and 3 only were awarded. The Commissioners then determined to defend the work by a con- tinuous embankment on the north side, formed by an exca- vation 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 soiitlierinost l)raricli of (feom kesident engineer wm. Jerome's report, 1838.) DRESDEN II ETCH ITS. ‘Miiimediately below the aqueduct, are located locks Nos. 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 por- tion of this distance, the canal passes at the foot of the Kan- kakee bluffs; some part of the way in the edge of the Des Plaines and Illinois Rivers — the towing path bank to be pro- tected from the great floods and extensive ice jams formed by the uniting of the waters of the Des Plaines and Kankakee Kivers, by a strong mail on the river sided’ (Canal Rep., pp. 169-170; Abst., p. 1895.) Mr. Jerome, Mr. Bucklin and Mr. Gooding agreed with Mr. Cooley, Mr. A¥illiams and Air. Kremer as to the danger at this point. On pages 185 to 189 is given a statement of the damage from a suspension of the work on the canal in December, 1839, conse- quent upon the financial depression of 1837-8. On pages 190 to 197 follows a fresh resume of the history of the project, of the sales of lands, of the indebtedness incurred, and a consideration of ways and means of completion. CANAE vs. RAILROADS. This (luestion is again considered, page 191, by the legislative committee of 1841, with a preference for canals. GOV. ford's message dec. 8, 1842. RECOMMENDS COMPLETION. RECOMMENDS CHANGE TO HIGH LEVEL SHALLOW CUT. (Pages 196-197; Abst., pp. 1900-1901.) FROM , ENGINEER GOODING's REPORT, DEC. 1, 1842. ‘‘Total cost of canal $8,007,661.32 (P.. 201.) “Total amount remaining to be done $3,098,169.29 ‘'Tim first survey was made in the autumn of 1824, by Col- onels Post and Paul, under the direction of Messrs. Sloo, Brown, West and Smith, Canal Commissioners. An exam- ination of the reports of these gentlemen will show that, not- withstanding their ability, their survey and estimates did not give a correct idea of the obstacles to be overcome in the construction of the canal. In fact, the little that was known of the country previous to the commencement of the examin- ations, and the very imperfect knowledge which the best in- formed 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 magni- tude of the undertaking. But low as were their estimates, it is obvious they were higher than the public expected. * * * THE SM.VLL ORIGINAL ESTIMATED COST. ‘ ‘ The estimates of the five different routes marked out were as follows: 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 of 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 VOLUMES OP WATER IN THE RIVERS. “The gauges of the different streams from which a supply of water would have been drawn, are given as follows, to wit: Des Plaines River at Cache Island .... 117,000 feet per hour Du Page River 114,000 feet per hour Aux Sable River 50,000 feet per hour Fox River 450,000 feet per hour “The engineers remark in relation to these gauges that the ‘results are predicted upon the present stage of water,’ and that the quantities may sometimes be lower.” (Page 202.) (Abst., p. 1904.) SHALLOW CUT VS. DEEP CUT ENGINEER GOODING ON. “The contest in the winter of 1836-7 closed by the passage of a law authorizing the Canal Commissioners to prosecute the work on the present plan, but requiring them to procure a skillful engineer from abroad to examine and report whether ‘a supply of water from sources within the legitimate author- ity of the State of Illinois’ could be produced without resort- ing to the lake, or, in other words, whether a shallow cut, or high level canal could he supplied with water. * * ^^It was supposed that there was nearly or quite canal prop- erty 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.” (Page 203; Abst., p. 1905.) LOSS OF WATER TRAITSFERRED TO CANAL BY FILTRATION, LOCKAGE, LEAKAGE AND EVAPORATION. ‘‘I have calculated no loss by filtration from Chicago Kiver 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 Des Plaines 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 estimated in computing the demand for water upon canals. ‘‘But the evaporation upon the whole of our canal, calcu- lating the length at ninety^six miles, and the ividth at sixty feet, would be but 264 cubic feet per minute, estimating the evaporation during a season of navigation of 240^ days to be three feet (which is about the average annual evaporation in this country), or it would be less than three cubic feet per minute per mile. “The leakage at the lock gates will be but a small item, if the work be properly executed, and the allowance made is undoubtedly sufficient. “In calculating the amount of lockage water necessary, I have estimated water sufficient to fill the locks (one of eight and 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 that a single lock full of water would pass one boat up and another down. Or, in other words, it is as likely that the two boats will meet passing in opposite directions, as that one will closely follow another going in the 'same direction. It is, therefore, possible that the quantity of water estimated for 100 lockages across the summit, would be sufficient to pass 150 boats. “Gauges of Calumet River by U. S. Engineers, 17,281 per minute. By Bucklin, 5,333 per minute. S. Des Plaines River, Post and Paul, 1950. (1,950 per minute, 117,000 per hour.) By Bucklin, 1,000. (1,000 per minute, 60,C00 per hour.) “S. Bu Page River, U. S. Engineers, 1,655. By Bucklin, 6,916 per minute. “The aggregate minimum discharge of the three rivers would then be shown thus: “Calumet, 5,333; Des Plaines, 1,000; Du Page, 1,665, equals 7,998 cubic feet per minute.” (Page 204; Abst., pp. 1906-1907.) “The construction of the perfectly water-tight dam at Joliet has enabled us to ascertain with precision the quantity of water flowing in the Des Plaines. 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 di- minish till the last 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 Des Plaines River 200 cubic feet per min. In the Du Page River 1,888 cubic feet per min. Total 7,300 cubic feet per min. “The necessary quantity of water to supply the canal from Chicago to Marseilles is 9,924 cubic feet per minute. This would show a deficiency of 2,624 cubic feet per niinute, ad- mitting that all the water coidd he 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 Du Page dam. It would, however, be safe to calculate that there could be introduced into the canal from these rivers the following quantities, to wit: From the Calumet River 4,500 cubic feet per min. 'From the Des Plaines 200 cubic feet per min. From the Du Page 1,600 cubic feet per min. Total supply 6,300 cubic feet per min. Total supply 9,924 cubic feet per min. Total deficiency 3,624 cubic feet per min. 517 ‘‘There would not, it is true, l)e so lar^^e a deficiency except in extraordinary dry seasons, and in most seasons probably none at all/^ (It will be observed that in the foregoing figures the engineer has based his computation on the proposition, '' admitting that all the ivater could be turned into the canal/ ^ He sees that there may be some trouble about getting the whole of the Calumet and the whole of the Du Page, but makes no allowance for any failure to get the whole of the Des Plaines. This, he is certain he can get because of “the construction of the perfectly water tight dam at Joliet.’’) On pages 205 to 208 follows a narration of the passage of the Act of February 21, 1843, entitled “An Act to provide for the completion of the Illinois and Michigan Canal, and for the pay- ment of the canal debt;.” under which the entire property of the canal was mortgaged to Canal Trustees; together with the supplemental Act of March 1, 1845; and the election and appoint- ment of trustees. At pages 209, 210, is set out a report of the Board of Trustees November 30, 1848, recording the completion of the canal and reciting that the cost of the Kankakee feeder was $84,573.29, and that the pumping engines were built and used from the beginning. These engines operated the original “lift-wheels” for lifting water from the Chicago Eiver into the canal level. (See Cooley, Ex. 3, p. 7.) (See also |)reanib1e to Deep Cut Act of 1805, Canal Comp., p. 130.) On page 219 is a description of the work done on the feeder, and an estiyiate of the cost at $50,000. “The 90-foot reserve was surveyed in 1848 l)y iVrtemus J. Mathewson, a plat was made of the feeder and reserve and appear in the pJat book number 2, Canal Kecords. “The total cost approximated verv nearlv $50,000.” (Page 219; Al)st., ]). 1912.) “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 jDrepared and filed in the office of the Board of Trustees, ma])s and profiles of said survev.” (Page 229; Abst., p. 1913.) 518 In 1861 the Legislature authorized tlie Canal Trustees to con- tract with tlie City for pumping and the (hty built and operated the Bridgeport pumping works. 'In 1865 the Deep (hit Act was passed and June 15, 1871, it went into operation, and the use of the Bridgeport pumps was sus- pended. (Gov. Bross, ‘^History of (Jiicago,’’ p. 38, Ev. of Cool- ey, Abst., p. 824.) A new system of pumps, known as ‘‘The (/anal Pumping Works,” was put in by the City of Chicago in 1881-1886. (Report of Chi- cago Department of Public Works, pp. 36-51.) VI. DEPTHS^ SLOPES AND PHYSICAL CONDITIONS OTHER THAN STREAMS AS STANDARDS OF COMPARISON. MISSISSIPPI RIVER. ROCK ISLAND RAPIDS. The evidence of several of the witnesses referred to other streams of well-known navigability as standards of comparison. One such is the Mississippi at the ROCK ISLAND RAPIDS. AY. R. Tibbals, the Upper Mississippi Pilot and Government Inspector of steam vessels, testified of this (Abst., 636) : “Since 1855 I have navigated the Mississippi, the St. Croix, the Iowa or Des Moines, the AVisconsin and the Chippewa (Abst., 634.) In 1855 the Mississippi was low. For about 30 miles we had 26 or 27 inches on the Mississippi. Boats ran there that were drawing for 12 inches to 34 feet. Some vessels draw 12 inches unloaded; others 34 feet unloaded. The boat that drew 12 inches unloaded would carry 80 tons of freight. It would be from 120 to 130 feet long and 30 feet broad, and draw when loaded 3 to 34 feet of water. The larger boat would carry 900 tons and draw 64 feet, and be 235 feet long and 37 feet beam (Abst., 635). I ran the Enterprise Steamer in 1852 up the AVisconsin River. It drew, light, 8 to 10 inches, and loaded 28 to 30 inches, and carried ordinarily 60 to 80 tons (Abst., 635). The boats on the Iowa River drew from 12 to 18 .or 20 inches (Abst., 636). The boat pushed 2 barges, one on each side. ■)\l) lo \\vv s()iii(‘\vlial I'oi’wa rd. 'rii(‘v would carr-y 1,000 saoks of sliolk'd (‘oni on eacdi har^o and 1,000 on tin; hoat. Tlio boat llien drew dl imlies and the barges would not draw '2 feet. 1 have (*arried on eonnnereial navigation on the Mississippi on 14 inches (Abst.. blh)). I remember the Moline eliain of rapids from Rock Island to LeClaire, — about 15 miles opposite Moline the steamboat men speak of it as tlie swift- est water on the river. The rate of the current would be from () to 9 miles per hour depending on the state of the water; 6 miles per hour when slowest and up to nine. The United States Government has improved that chain, but I navigated through there before there was any improvement made. I never knew of a boat that (Abst., 686) tried to get through and did not. At the same time I have known them to have to lay the anchors and work themselves through. They anchored and cordelled through before the improve- ment was made. In cordelling they come up to the foot of the chain and anchor the boat and then scud out a yawl with an anchor as far as the chain would reach and throw the anchor over, — usually a 600-pound anchor — and it would catch in the bottom of the stream and then take a ])ull on the ca])stan and ])ull the boat up and repeat the o])eration till she worked through the chain. That was in customary use iu ])assing the ^loline chain on the Mississi])])i. 1 have done that on the lower rapids at Keokuk before the (loverument built the canal.” (Abst., 687.) was connected with the United States Kngineer’s ollice at Rock Island for seven years. I was navigating over the rapids and 1 was with them and heard the conversations in the office and heard tlie engineer that was at work on the ra])ids. I have double tri])ped a good many times over the rapids to get my fleet ovei* it; towed i)art of the load and went back and got the other part (Abst., 689). They have been at work on the improvement since about 1877. It never was dangerous or im])ossible to navigate the rapids; we always got over the rapids — of course there is more water now they have increased the de])th of the water (Abst., 689).” Governor Samuel R. Vim Sant (of Minnesota) (Abst., ]). 854 to p. 870) : ‘Mlave lived in Minnesota 25 years, was (Jovernor two terms. Before going to Minnesota I lived in Davenport, Iowa, and Rock Island, Illinois. I am in the transportation business on the Mississi])y)i and have* been actively so and as an owner of boats since 1870, and before that in a boatyard build- ing and repairing steamboats at IjeChaire, town, and at Ro(*k Island, Illinois. My i'atlier was in the business of nianufac- luring and repairing stean;.boats tliere for many years. I Jiave been licensed both as pilot and master on the Missis- sip])i by tlie United States Government. My first trip was in 1857 and I have been continuously engaged in j^iloting, oper- ating, manufacturing and repairing steamboats on the Mis- sissi])pi from that time to the present (Abst., 854). I am now connected with the Van Sant Navigation Company and the Carnival City Packet Company. They own and operate 10 steamboats on the Mississippi. My companies have owned 50 to 40 l)oats during my time on the river. 1 have made from 500 to 1,000 trips on the Mississippi boats, sometimes make 25 trips in a season. I remember we made the James Lyon in 1869, — 160 feet long, 32 feet beam, draft 26 to 30 inches, which carried corn from Fulton, Illinois, to Minneapolis. That was customary form of traffic on the river then. Navigation stopped from November 15 to April 1. (Abst., 856.) In certain seasons when the water was low boats of heavy draft could not run. It would be 2 to 3 months quite frequently that navigation would be suspended. (74 months of open season, less 3 months of low water would leave 44 months of navigation.) 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 (Abst., 856). Navigation would be interrupted because the water was low, for two months on the average. I have seen it interrupted for more. In 1864 w^e couldn’t run at all. That was known as the ^Low Water Season.’ Navigation was practically suspended except for very light draft boats prac- tically the whole season (Abst., 857). The little boats would run from intermediate points. 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. Quite frequently the boats would go up to Hastings, Min- nesota. 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 the passengers and freight up to St. Paul and then bring passen- gers and freight back to St. Louis. From Hastings to St. Paul is 30 miles (Abst., 857). The 'Cheever’ was a boat we had that was in the business of taking trans-shipments from large boats at Hastings and carrying them to St. Paul. It drew 16 to 18 inches at tlie stern ; was a stern wheel, flat bottom boat. A stern wheeler draws more at the stern than bow; and we frequently put 1^0 or .')() ions oil lli(‘ bout and she vvoiild draw no more Ilian when enipiy (Ahst., 857). The "Phil Sheckcd’ was a stern wlieel steamer on the upper I’iver; it was 110 feet Jong, 20 feet beam, 14 to 15 inches draft. It was built to run up the Chippewa, wliieli is a very scanty stream of water. The water was very scanty — she ran up to Kau Claire to carry up men who floated the rafts down, and their freight, kitchen, etc. They find 14 inches 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 iu*etty near go dry, but when there was a great rise on the river, sometimes 500,000,000 feet of lumber would come down that river in a year (Abst., 858). They would have to wait till a freshet or a rain came. I afterwards owned the Phil Sheckel. I used it for about 5 years on the Missis- sippi for several years as a bowboat towing rafts two at a time. The bowboat points the course. We sold it and it is now at Miami, Florida, building the railroad from Miami to the Keys. It went there with its own power down the Mis- sissippi and crossed the Gulf 1,200 miles out into the Gulf in safety (Abst., 858). The ^Jeanette Rohar’ was a boat on the upper Missis- si])pi. IMy father Imilt her. It was a very light large draft lioat. She was 150 feet long, 30 feet beam, draft 18 to 20 inches. She carried freight on the Minnesota Kiver. It was very desir- able in those days to have light draft lioats that would navigate as long as they possibly could. This boat was built especially for that trade. They carried on successful com- merce on them. It was customary in the boat yards on the Mississippi then to build boats especially adapted for these shallow tributaries. The ‘Bes Moines Valley^ was a boat T remember that was built at Pock Island and was used on the Pes Moines in the early days. Tlie ‘Black JJawk’ I remember very well; my father built her. She was a little boat built purposely to run up Pock Piver. She was 100 feet long, 22 feet wide, draft 10 inches. The old bridges on Pock Piver had draws then. She would carry 40 to 50 tons (Abst., 859). The ‘Enterprise/ I remember very well. She was first operated on the Mississippi below St. Paul and was after- wards taken around the falls of St. Anthony by land for 7 miles on wheels and skids with lilock and tackle, and navi- gated on the Mississippi above the falls. She was just about in the class of the ‘Cheever’ if not lighter. ^Wood-boats’ are in use on the Mississippi. They are flat- bottom boats with scow bows and propelled with poles. They used to go up the creeks and rivers and get wood and bring it out to the Mississippi. They are in use yet. (Abst., 859.) The ‘Silas Wright’ I reiiieiiihei' very well, it was used on the (diippewa. ddiey foinid she was too heavy draft and so they built two hulls, ])ut one on ea(‘li side of her and rigidly fastened them to the boat to bring her up, and she success- fully navigated the river tliere for years at a depth of 12 or 14 ()i‘ 1() inches of water. She was originally built so she would likely draw 18 or 20 inches of water. The ‘Lady Van Sant’ 1 rerneniber. She was a light draft, bow-boat 105 feet long, 24 feet wide and 20 inches draft. The ‘Hamlet’ I remember was a boat used in tlie same on the Mississipy:)i and these other tributaries. She was 2 feet wider than the ^Lady Van Sant.’ The ‘Keokuk’ we built last year: She made her first trip this S])ring. She is 140 feet long, 30 feet beam and carrying 20 tons, draws 24 to 20 inches. (Abst., 860.) There is very swift water on the lower rapids of the Mis- sissippi, but the swiftest water I know of is on the Moline Chain. (Abst., 860.) Tim Government has done consider- able work improving the Moline Chain. They have built a canal so as to obviate going through that chain for all time to come, so as to avoid going up-stream through this swift water. Our boats were chartered to the contractors and were on that work almost constantly. I was in daily or frequent contact 'with the engineers carrying on the work. Before the improvements were made navigation was carried on up-stream against this swift current. In certain stages of water certain boats would have to work over the chain especially the Moline Chain (Abst., 862). A boat would come up into the chain in the swift water as fast as she could. She would either he anchored there or hold herself there with her power and they would put a coil of line and an anchor out in a yawl that would go to the side where the current was not so swift and they would go up to this point and cast their anchor and drift right down with the line and put the line on the steam capstan and wind up the line. That was quite a common practice in passing the Moline Chain. They used that on the Moline Chain from the earliest navigation until say ’68 or ’70, when the first improvement in the channel was made. The channel through the Rock Island Rapids is about 200 feet wide. That has been made by coffer-dams.” Rock Island Rapids from SuK\mY OF Lt. Robert E. Lee, Dec. 6, 1837. ‘Mvock River Rapids — The upper or Rock River rapids, dis- tant about 150 miles from the Des ^loines, commence 14 miles above Rock Island and extend to its foot. Within this distance the Mississippi falls 25.740 feet, descending over a rocky bed, broken l)y reel's, wlii(‘li at some points reach (m- tirely across tlie river, affording- at low water a shallow chan- nel, and, projecting at others from oi)posite sides, interlock and form a winding, difficult, and dangerous^ t)assage. The fall of the ]*iver 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 continually 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 main channel, worn by the action of the water, is so distinctly marked that there can be no doubt as to the best mode of improving it. The depth of water is generally sufficient, and the difficulty consists in the short turns and narroiv passes between the 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 greatest risk, and the turns ought to be so regulated as to re- lieve them as far as possible. By cutting off the projecting points of 'some of the ledges, and excavating through others, this danger will be avoided, and a safe passage fonned. “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, 1) and K 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 Cam]h)ell’s Island, just below which it will be necessary to excavate through the reef to the depth of about 18 inches; to cut off the point of the reef at fl, extending from the western shore toward the small island at the foot of Campl)eirs; 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 IM; all of which is indicated on the map. This will open a free passage to the head of Bock Island, the commencement of the lower chain, from which a flat reef extends to the Wisconsin shore, and through which a channel 200 feet wide, 25 feet deep, and 400 yards long will have to be excavated. The only other part to be improved is in the bend below, whore the channel passes between two reefs projecting from o])po- site sides of the river. By cutting off the point of that on the west all obstructions will be removed to the foot of Bock Island. * * * Pile removal of the obstructions, in both rapids, at the several points named will require an excavation of 172,000 cubic yards through the solid rock. “The difficulty attending such an operation under water. wliicli must be performed by blasting, is much increased by the rapid current of tlie Mississippi; the unexpected rise to* Avliich it is subject and the short season of operations. * * * ►So much depends upon circumstances that can neither be foreseen nor controlled that the estimate presented of the l)robable cost of the work must only be considered conjec- tural.^^ U. S. Engineer’s Keports, 1886, Vol. Ill, pp. 1436-7. (Abst., pp. 1616-1617.) Kock Island Eapids from SUKVEY OF Lt. G. K. WaKEEN, 1853. ^ .. ‘ ^ The instructions required such surveys at the lower rapids (Des Moines), and at the upper rapids (Eock Island), 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 low- est stages. * * * ‘‘Upper Eapids. — These, beginning at half a mile above the lower end of Eock Island, extend 13 miles up the river. The principal reefs are known as Lower Chain (at foot of rapids), Eock Island Chain (2 miles from foot). Duck Creek Chain (44 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 intervene 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 every year that has loiv water sees several steamboats sunk and others seriously injured. “Duck Creek and Campbell’s chains are particularly dan- gerous. The current is moderate a’t 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 by stern-wheel boats. 7;* method of improving the upper rapids is to remove the rocks that now obstruct the channel and 525 close some of the side chutes wliose tendency is to produce (*ross-cuvrents.’’ V. S. Kni>ineer’s Keports 1885, Vol. Ill, pp. 1458-9. (Abst., ])p. 1705-1704.) liocK Island Eapids from SuKVEY BY CaPT. P. C. HaTNS. 1886 ‘‘The Upper or Eock Island Kapids 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 Le Claire. 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 along the shores, and is generally found stratified in thin layers. The lower strata in the bed of the river appear to be harder, and of different thicknesses — from 4 inches to 2 feet and upward. There are also a number, of large erratic bould- ers 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, un- less replaced by other equally permanent marks. “The only difficulty in the way of navigating the rapids consists in passing over the chains, of which there are 7, 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 over-lapping each other, leaving only a narroiv, 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 11 miles are good navigation in the lowest stages, the obstructed portion covering a dis- tance of only a little more than 5 miles. “The steamboat channel, beginning at the head of the rapids 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 flie current swift, having a velocity of more than 3 miles an houjc. A large reef or rocky bar, known as Asprey Patch, stands in ) tli(‘ nii(l(ll(‘ of wluit would otliei'wiso lx; a wide (;liaiiuel. This ('liaiii is not ('onsid(‘rcMl, liowever, as difficult oi' dangerous as most of the others. “Ihissiug- Suiith’s Chain, the channel inclines gradually towards the Illinois shore, until it ('onies to Sycanioi’e Cliain, which is (‘ou(‘(‘d(‘d to he the most difficult place to ])ass on the whole rapids. Here the rocky Jedges project out fi'om each shore, leaving between them only a min'oiv and crooked irater- i('(iy. The current ])eing swift and the turns sliort, boats in ])assing- are exposed to strong cross-currents, wbicb tend to sweep them on the lower ledge; besides, in one of the sharp bends a dee]) ])ocket has been cut, and a large amount of water runs tlirougb it, wliicli, 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. ^‘Tbe difficulties at Sycamore Chain are not the result of a want of sufficient depth of water, for there is a good depth in tile channel, but they arise from its narrowness and crooked- ness, together with the strong cross-current that sweeps over it. ‘C\fter 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 towards the Iowa shore, until, at Saint Louis Rocks, it reaches a point about midway lietween 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 opens out gradually into a stretch of 3 miles, perfectly navigable at all times. In front of Hampton the current 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, hut the rocky ledge extends entirely across the river. In the channel pursued by steamboats across this chain the uriter is not much deeper than on either side of it. * * * “After passing Campbell’s Chain, with the exception of the 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 three miles below. Here it is crooked and narrow, so much so as frequently to necessi- tate the use of anchors at low water for the purpose of work- ing l)oats through. This is another difficult chain to pass through. (A])st., ])]). I705-170().) “Below Duck Creek the channel widens out again, giving good navigation, with the exce]:)tion of one narrow ]dace for about 2 miles, when it comes to IMoline (Tiain. Here again I 527 [lie knlge of roc'k oxtcMuls (‘niir(‘ly across llu; i-ivcir and ronns ill low water an iiniiassahle harrier to boats drawing’ more than do inelies. The water jiasses over this eliain at a mean siirtiu'e velocity of d.878 feet per sei'ond at low water, and a maximum velocity of 5.0545 feet per second, as determined hy actual observation with lioats. “The average Jengtli of the boating season is about 200 days. During the winter, as a matter of course, navigation is closed hy the ice. “When tlie river is open 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 thp year 1864 the water wa^ lower than had been known before in many years, attaining its lowest point September 2 . * * Qj? 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 average fall of 1.53 feet per mile in low water. ^‘The greatest fall is on Moline and Sycamore chains. ‘Mn planning an improvement for the rapids of the Missis- sippi Kiver, one point must not be lost sight of, viz., the im- provement must not of itself become an obstruction, and* no plan should be adopted for the improvement of navigation in low water that would be i)rejudicial to its present state in high water. On this point I am not alone, and respectfully call your attention to the report of the Board of Engineers, convened at my reejuest and in obedience to your orders, a copy of which is herewith a|)pended. ‘M have no hesitation in saying that in my opinion a ])lan of improvement, by means of an independent lateral canal on either side of the river, is far preferable to the foregoing, no matter on which side the canal should be located. Though it has some objections, it recommends itself from the fact that it in no way interferes with the river as it is, and will l)e navigable at all times, night or day, windy or foggv weather. “I have not made any estimate of the cost of constructing a canal on either side of the river; first, on account of the limited time at my disposal; and second, because T think the time has not yet come when it is necessary to resort to a canal as a means of overcoming the difficulties of navigation on these rapids. It is certain, liowever, that a canal of the • dimensions necessary to accommodate the commerce of this river cannot be l)uilt on either side for less than al)out two and a half million 'to three and a half million dollars.” U. S. Engineer’s Reports, 1886, Vol. Tit, pp. 1441-1442-3. liocK Island J^apids from SuKVEY OF \jT. I]. I\ Hoffman. mn ^‘TJie greatest and Jeast velocity at tlie cliains mentioned were found to be as follows: At 8mi til’s Chain, 8.18 and 3.6 feet per second. At Hycamore Chain, 6.20 and 3.4 feet per second. At Campbell’s Chain, 3.33 and 1.5 feet per second. At Moline Chain, 8.36 and 4.1 feet per second.” U. S. Engineer’s lieports, 1886, Vol. Ill, p. 1448. Eock Island Eapids from SuEVEY^ BY CaPT. C. J. AlLEN. 1869. At Moline Chain. ^‘The buoys for the location of the coffer-dam at Moline Chain were placed early in June, 1868. This chain presented many difficulties to the establishment of a dam on account of the great velocity of current, which above the chain was 3.63 teet per second, at the dam 6.36, and below it nearly 4 feet, with a surface slope of 0.37 feet upon 900 feet. The buoys were laid out by the theodolite from the primary sounding based on the Iowa shore. Cribs were sunk and a bulkhead formed as at Duck Creek. ‘^By the 30th July the coffer-dam was finished and con- nected with the stone dam at the head of Eock Island by a bridge built on stone cribs, 500 feet in length. It had a cross- section of 9 by 9 feet, and a development of 2,645 lineal feet, averaging 260 feet in width and 950 feet in length and inclos- ing 6 acres. Placed on a rock bottom and in a very swift cur- rent, great pains had to be taken in its construction and in protecting it by means of cribs on the outside. The work was considerably delayed from the frequent collisions of steamers which, in trying to ascend the chain, were drawn into the eddy at the foot of the dam and thence swung against the work Itself. To prevent this cribs of stone were sunk and piles of stone placed at points where the dam was likely to be struck, after which no accidents occurred. On August 15, the dam having been cleared of water, a close topographical survey of the rock bottom was made. An examination showed the lime rock to be much more regular in its formation and layers than that work at Duck Creek. A large number of nranite boulders ivere found scattered over the surface of the roch, ivhich had undoubtedly been deposited there by the fields of ice as they 521 ) moved doirn in Ike spring. Some of these were of large size and verg dangerous to boats. It was decided to (;liaririel tliroiioii 11 k 3 rock, making the cut 200 feet wide, and giving the bottom a slope })arallel to the slope of the sni'l’ace ol‘ the water. ,P)y giving the bottom a hatter slope than this, the velocity ot the current over the main portion of the chain would have been lessened, to the advantage of steamers ascending this portion; l)ut the backwater i')rodnced in consequence would have caused heavier fall at the foot of the chain, the result- ing velocity being calculated at nearly 8 feet per second. ]n making the improvement here as upon the other chains, the object has been to so arrange the cuts as to preserve, if pos- sible, the existing regimen of the river at tlie respective points. At Sycamore Chain. ‘‘The chain is 2,700 feet in length, with a surface current varying from 6.5 feet per second to 3.5 feet per second. The water had worn for itself a very irregular channel through the rock, its axis forming a sort of long S. The main .channel was intersected by several smaller channels and chutes, the water laishing through the latter with considerable velocity, the effect of which, conjointly with the current of the main channel, was to carry vessels out of their course, and either force them against the sharp projecting rock on the sides of the channel or into the small chutes, where they sometimes remained for aays, if not totally wrecked. During seasons of high water no difficulty had been experienced at this chain or, in fact, at any ot* the chains other than that of stemming the current; })ut during seasons of low water the ])assage of boats was always attended with danger, and at the lowest stages passage was ini])ossible. About 6()() feet below the head of tlie chain the rock rose ahru])tly from the bottom, forming a sort of bridge connecting the walls of rock on each side of the chan- nel, ovei* which at low water there was scarcely a foot de])th. Below the bridge the channel gradually increased in width, never exceeding 180 feet, untd at the lower end it abruptlg nar- roired, with an increase of surface velocitg. Immediately aoove and below the chain was deep water.” U .S. Engineer’s liei)orts, 1886, Vol. Ilf, ])]). 1-156-7. Bock Island Bapids from Beport by Major McKenzie. 1871-2. At Saint Louis Chain. “Numerous soundings were made in the fall of 1871 on this chain, in addition to those of 1867 and 1868. After platting these soundings it was decided to deviate from the original |)l;ni of improvement. The ('liaimel was deep and wide, with lh(‘ ex('e))ti()n of the part (*alled “Saint Louis Cabin Passage.” At this point (speaking with reference to a ])Iane 4 feet below low water of 18b4) lie two islands, averaging in elevation al)ove said plane Lb feet. These form three passages, of which at low water, the larf/est is not more thon frovt bO to 70 fe(‘t u ide. Only two of these i)assages could })e used, those nearest the Iowa side, the tliird })eing too crooked. The first plan was to remove })oth islands, hut after careful consider- ation it was decided to remove hut one, and as much of the intruding rock on the Iowa side as was necessary to give the improved channel a direction ])arallel to tlie general direction of tlie current of the river.” IL S. Engineer’s Keports, 188b, Vol. Ill, p. 14bL MISSTSSlPPr RIVER ROCK JSLAKD RAPIDS SUMMARY. The net result of this comparison is: — that the Mississi])pi. though lialf a mile wide at this point, had a channel averaging about 200 feet wide, in the lower part never exceeding 180 feet (HI. Engr’s Eept., 188b, p. 1456), and “at the lower end, is ahru})tly narrowed with an increase of surface velocity” (lb.), “probably 140 feet: — down in low water you couldn’t get that through— not over 50 feet” (Whistler, Abst., p. 1154); “the largest is not more than from 60 to 70 feet wide (Id., 1461) ; that this channel extended through these rapids for a distance of 14 miles and was crossed l)y numerous reefs which “at some points extended entirely across the channel, and projecting at others from opposite sides formed a winding difficult and dangerous passage,” with “short turns and narrow^ passes between the reefs” (Kej)ort of lio])t. E. Lee, Abst., p. 1616), “leaving a narrow tortu- ous channel between them and in some instances extending like a dam or rocky b'ar entirely across the river” (Keport of Capt. IL C. Ifains, Abst., p. 1705) ; — that there were seven principal chains of reefs in this 14 miles (lve]X)it of Capt. P. C. Hains, Abst., p. 1705), “leaving only a narrow and crooked waterway” with “strong cross-currents” (Keport of Capt. P. C. Hains, Abst., p. 1706) ; — that the channel was studded with islands which at the central portion of the “St. Louis Cabin Passage” “form three passages, of which at low water the largest is not more than 60 or 70 feet wide” (111. Keport of 1886, p. 1461); — that the bed through and over which this channel ran consisted of “hard sur- huH' of liin(‘sloii(‘ rock” (K^'porl of P. (j. Mains, Ahsl., }). ITOo), with “a larg'o iiinnhc]' oF i>ranit(‘ hoiihkirs scait(n-(Ml ov(‘r the siirFacc oF the roc'k whicli had luidoiihtedly hcHni depositcid- there by the Helds oF ice as they moved down in the si)rini>'. Some* oF these were oF large size and very dangerous to boats” (U(i])ort oF (h/ut. (\ J. Allen, 18(i9. But in some cases, as at Campbell’s chain, these large boulders ])rojeeting al)ove tin.' surface of the water ‘Alid not present serious obstructions,” but ^‘rather served as guidemarks for pilots.” (Ke])ort of Ca])t. P. C. Hains, 1886, Abst., p. 1705.) Capt. Hains’ writing in 1886, came after the removal of the more numerous and dangerous boulders which Capt. Allen found there and found very dangerous in 1869. That in this distance of about 11- miles” the river fell 21.16 feet, ‘‘or an average fall of 1.53 feet per mile,”— that the fall was concentrated at the reefs, between which were pools (Eeport of Gen. G. K. Warren) that in the ordinary depth of water this channel was available for boats drawing 12 inches to 31 feet (Tibl)als, Abst., p. 635) ; — that the low water was im- passable for l)oats drawing 2 feet; — that “when the river was open for navigation (260 days, 8 2/3 months) about one-third of the whole time (87 days, i. e.^ 3 months) it is rendered dangerous by the shoalness of tlie water on the ra])ids, and sometimes im- passable for boats drawing more than 2 feet (Report of dipt. P. C. Hains, Abst., |). 1707) ; — that every year of low water several boats were sunk and others seriously injured in attem])ting the passage; — that light draft boats, like the “Phil Scheckel” draw- ing 15 inches, the “Black Hawk” drawing 16 inches, the “Silas Wright” drawing 12 to 16 inches and the “Hnter])rise” draw- ing 10 inches, were relied on for navigation during low water; and in 1864- even these Floats “couldn’t run at all” (Governor Van Sant, Abst., pp. 858-9) ; — that 1-t inches was the lowest water they got through on, and profitable commercial navigation was in fact carried on over 14 inches of water (Tibbals, Abst., p. 636) ; — that the current through this reach varied from 3 miles an hour in the stiller jiools to 6, 9, 10 and 11 miles an hour (Mason, Abst., ]ip. 1219-20) ; — that in getting through these swifter reaches it was customary to “double trip” it, /. c., take up half the load and then i>’() back Tor llie otlior lialf; to 'Svarp” or ''cordel” tlie ])oat up by puttiuo: out ahead aii aiielior witli a ca])le and wind up the ‘ea])le by a eapstan operated l)y steam (Tib])als, Abst., pp. G36-7) that afterwards a special set of ])oats and pilots were kept at the rapids to take boats through (McCatfrey, Abst., p. 1158) ; (Kambo, Abst., ]). hlG-l:) ; — that the United States Government has expended millions of dollars improving the navigation of this reach of rapids and finally a lock was put in to take up the fall, and wing dams to reduce the current. In .1889 the official list of steamboats plying the Mississippi and tributaries published in Capt. MarshaH’s report (Ex. Doc., 264, p. 119), gave 7 boats having a depth of only 2 feet and tonnage ranging from 52:} to 119 tons and 30 other boats having less than 3 feet depth and tonnage ranging from 55 tons to 186 tons (Ex. Doc., 264, pp. 119-128). These 14 miles of the Mississippi reproduce in manifold meas- ure all of the difficulties presented by the 16 miles of the Des Plaines : IVm. E. Tibbals. I have steamboated on the Mississippi itself on 14 inches of water. Several boats used to run up the Iowa and bring out freight. Thev drew’ from 12 inches to 18 or 20. (Abst., p. 636.) L. E. Cooley. Between Cairo and Memphis in the Plum Point reach of the Mississippi Ave used a small tow-boat and had currents of 5 to 6 miles an hour and at Fort Pillow Eddy we sometimes struck currents of 12 miles an hour which Ave used to run. Eock Islax^d Eapids. Witnesses for the Defense. AY. H. AVhistler. Licensed pilot on the upper Ylississippi since 1870. Began running on the rUer 1865. (Abst., p. 1154.) I became A^ery familiar with the Eock Island Eapids (Abst., p. 1154). Q. And this Avater looks very much swifter than thatf (Leading question by counsel for defense.) A. Yes, sir. C ro ss-E xa imn a tioii. T don’t know the fall at the Moline Rapids, ])nt you take it at Moline Cliain, Diiek Creek Cdiain, Oainpbeirs Cliain, Syca- inore Cliain and (kihin Cluiiii is the heaviest fall. Yes, I tliink the jMoline Chain tliey claim for six miles tliere or ahoiii two miles there it lias six feet or something I have heard that said (Abst., p. 1155). Q. How wide is the Mississippi where you have navigated it at the narrowest ])lace! A. On the upper Mississippi, when it gets low, I have seen places where you could get a raft through, or half a raft, probably, 140 feet. Yes, I have seen it down where you couldn’t get that through. There would be from 18 inches of water, two feet on the sides with just three feet or three feet scant to get your boat in. That would be wide enough for a boat, or a little wider, not over 50 feet. The channel is sup- posed to be 200 feet between Eock Island and Le Claire, that is on the different chains where they have dredged out. It is about that or less at the Sycamore Chain just below Le Claire and above Eock Island. The stretch of water is half a mile wide. The deep place where the current is hardly 200 feet. The Des Plaines Eiver looked pretty small after that. I have never been on any of those little rivers 40 feet wide or 30 feet wide. (Abst., p. 1156.) It is possible to navigate a crooked river 30 feet wide so crooked that it goes by the name of crooked, by boats 75 to 100 feet long. It would de- pend upon the depth of water and the swiftness of the cur- rent. On a depth of 21 feet you could not handle her unless you would drop down a line, you might drop down stream with a line. lYe don’t handle the light draft boats. (Abst., p. 1156.) John jMcCaffrey. Steamboating license on the ]\[ississip]:>i since 1865. IVas partner of Governor Van Sant for 15 years (AbM., p. 1157). The last boat I built was the Joe Long. I ran her four or five yeai-s on the rapids. I built her for the Eock Island rapids. I ran 12 or 14 years as a rapids pilot. We cordelled boats u]) the Chippewa because that was the only way we could get up, the water was too swift (Abst., p. 1158). T have warped boats on the rapids on different rivers;— on the Chip- pewa and on the Ouachita (Abst., p. 1160). I was u]) the Ouachita 4, 5 or 6 times. It was about 18 years ago. I could not tell how steep it was (Abst., p. 1160). It is 300 feet wide, deep close in shore against a steep bank and got shallow as we went away and the current was in the bend. I don’t know the difference between cordelling and warping (Abst., p. 1160). 534 (UpTAIN liAMMO. Li(‘eii.sp(l pilot on tlie Mississi})pi since 18(54. J^een on the I\o(‘k Island i-apids for 45 years. I>efore that was a common raftsman on the river. The normal low stage on the Eock Island rai)ids is 3.^ feet. Tiefore it was improved it was 20 iiu'hes in 18(14 (Ahst., )). 11(51). We had a little boat or two that we got over once in a while. It was 90 feet long, 20 feet beam, the Enterprise. Twenty im'hes was the best depth we conld find. The normal low water before tlie im])rovements was 30 inches. That l)oat carried a small amount of freight. She ran in connection witli the Western Union Railroad from Savannah to Rock Island (Al)st., p]). 11(51-2). The Eock Island ra])ids have a total fall of 21 feet in 14 miles. The (lovern- ment re])orted 14 and something. It is a little over 15 by channel (A1)st., p. 1162). Tliei*e is one place in it where it is 3;] feet per mile. There are two jhaces so near alike they ('all it just the same (Abst., ])]). 1162-3). T have never seen navi- gation on a slope of 6, 7 or 8 feet. I have never been on very many rivers. I don’t think it possible to navigate a river with a fall of 16 feet to the mile (Abst., p. 1163). At the Eock Island rapids they always had to have a pilot to take them over, they conld not go alone (Abst., p. 1163). That is the most difficult rapids I know anything about. The smallest steamboat that goes over there is 75 feet long. There are electric and gaso- line launches that go up and down over the rapids which are from 16 to 90 feet long (Abst., p. 1163). I never knew a boat so small as to carry as a load ten tons of freight (Abst., p. 1163). A boat 30 feet long, 15 feet wide on the hat bottom -would carry )0 tons without any trouble. I have had no experience with that character of navigation. (Abst., p. 1163.) JoSEI’H E. MoCullough. The most rapid water I ever navigated was the falls of the Ohio and Harbor Shoals on the Cumberland. I have been over the falls at the Hes Moines rapids and the Eock Islana rapids on the Mississippi (Abst., p. 1177). 0. How does the Hes Plaines Elver compare with the Hes Moines and the Eock Island rapids! A. ^Yell, those rapids are navigable, steamboats go up and down over them, but there never has been any boat on the Hes Plaines River and ain’t agoing to be. Q. You mean that the Hes Plaines River is swifter! A. Why, certainly (Abst., p. 1176). The slope of the Ohio at the Ohio rapids is 28 feet from the head to the foot of the fall in 2 miles, 14 feet per mile (Abst., p. 1177). The Harbor Shoals ill the (hiiiiborlaiul liavo a Tall of ovcm* H loch in a inih* and a liltlo oven*. In low wat(‘r they had 1o warp oven- it hnt the (Joverninent jilacod a lo(*k and dam (Ahst, p. 1177). Tlioro aro looks and dams on the Falls of th(‘ Ohio, ])nt th(*re hy the ( Jovermnent. Wherever there are shoals or rapids in the* rivers I have been on, the (Jovermnent is improving- them (Ahst., }). 1178). With all the water that a boat needs, I don’t think it could be navigated over a slo])e of over 4 or 5 feet to the mile. A boat 50 or 60 feet long, 12 feet wide and carrying 10 tons could be navigated on 6 or 7Jnches of water Abst., jn 1178). I should say navigalile in shoal water would not be over 44 to 5-inile current (Abst., p. 1182). ♦ Thomas F. Boyle. (Abst., p. 1179.) The current in the Mississippi at St. Louis and below there is 7 miles an hour. You can navigate it. A boat can navigate in a greater current depending on the ])ower of the boat (Abst., p. 1181-2). Take a boat like I have sen in the (Ohio; and my boat can go against a 10-mile current easy enough (Abst., 1182). Isaac X. Masox. ' Began steamboating on the Monongahela in 1846. Navi- gated the Monongahela, the Ohio, the Mississippi (Al)st., p. 1217); the Missouri (Abst., ]>. 1217); the Cumberland, the Tennessee, the AVabash, the Allegheny (Abst., ]). 1220). 1 have gone over the Hock Island ra])ids. Our boat ran continually up and down that. The slo])e there is about 18 feet in 18 miles. At the Des Moines ra|)ids there is a fall of over 12 feet in 12 miles. The current of the AIississi])])i at Hock Islan - varies very much in the 18 miles. Part of it is 10 or 11 mih's an hour and some of it is i)rohably only 2 or 8 miles. It is in pools. The ra|)ids is in ])ools (Abst., ]). 1220). The greatest slope I have gone over is the falls of the Ohio at Louisville, that is about 80 feet in 2 miles. The l)oats make it only in high water and the current then would average 6 to 8 miles an hour (Abst., p. 1220). 1 should approxdmate the current in the lies Plaines River, in some parts of the river the cur- rent is from 7 to 10 miles an hour. There is places in the Des Plaines River where the current I should think is more rapid than it is on the Mississippi River only for a short dis- tance. 1 only judge from experience in looking at it this morning (Abst., p. 1220). My interest is to have the upper Mississipy)i improved. The rapids in low water is more dan- gerous to navigate and the Government has im])roved them in such a way they have lessened the dauger over 100 per cent. (Abst., p. 1220.) FOX JOVFR. Fkom U. S. Engineers ' Iieport for 1876, Part 2. Extracts From Chapter , fjp. 201-297 : 3516 Page 201. very interestiag natural feature is x>i‘^^sented jjy the courses of the Wisconsin and Fox Rivers. They flow towards each other to within 11/2 miles of meeting, and then, turning in opposite directions, although separated only by a low plain, iu^ross which their floods intermingle, the wmters 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, tli-e Gulf of Saint Lawrence. Each of these termini was a region beyond the bounds of the knowledge of the aboriginals on the banks of the two rivers.” (Abst., p. 1624. ) Page 202. History of Discovery, Etc., by John Gilmary Shea. {Summarized in the U. S. Engineers’ Report.) ‘‘Discovery and Explorations of the Mississippi Valley,” Redfield, N. Y., 1853. This contains a print of the original map made by Father Marquette, (then recently found. among the records preserved at Saint Mary’s College, Montreal), a reduced copy of wdiich accompanies this chapter. (Plate 1.) # *' • * * * * Adventures of the Sieur Nicolet, A. D. 1639. — “As early as 1639 the adventurous and noble-hearted Sieur Nicolet, the interpreter of the colony, had struck west of the Hurons, and, reaching the last limits of the Algonquins, found himself among the Ouinepegon, (MTnnebagoes.) * * * AYith these Nicolet entered into friendly relations, and, exploring Green Bay, ascended Fox River to its portage, and embarked on a river flowing west.” Page 203. Marquette says: “It was on the 17th of May, 1673, that we started from the mission of Saint Ignatius, at Michilimakinac, where I then was. Our joy at being chosen for this expedition roused our courage and sweetened the labor of rowing from morning till night.” r)/}( Pai>e 1^04. On “tlio lOtli oT June,” Mar(jU(‘ll(‘, says: "^Two Miamis, wlioin they” (the Indians) “had ns as gaiides, embarked Avitli ns, in tlie sight of a gr(‘at (o-owd, who eoiild not wonder enongli to see seven Frenclunen alone, In two canoes, dare to undertake so strange and iiazardous an expedition. ”AVe knew that there was, tliree leagues from Maskoutens, a river emptying into the Mississip])i ; we knew, too, that the l)oint of the compass we were to hold to reach it was the west southwest; but the way is so cut up by marshes and little lakes that it is easy to go astray, especially as the river leading to it is so covered with wild rice that you can hardly discover the channel. Hence we had good need of our two guides, who led us safely to a portage of twenty-seven hundred paces, and helped us to transport our canoes to enter this river, after which they returned, leaving us alone in an unknown country, in the hands of Providence.” ***** 3537 ^‘The river on which we embarked is called Meskousing, ” (Wisconsin) ^4t is very broad, with a sandy bottom, form- ing many shallows, which render navigation very difficult. It is full of vine-clad islets., (Abst., p. 1631.) ^^Our route was southwest, and after 'sailing * * * 40 leagues on this same route, we reached the mouth of our river, and * * safely entered the Mississippi on the 17th of June, with a joy that I cannot express.” * * * * * ^^They, turned l)ack and ascended the Mississip])i to the mouth of the Illinois Piver, up which stream they pro- ceeded as far as the portage near the present site of Chi- cago, where they crossed over to the shore of Lake Michigan, and coursed along it to the mission at Michilimackinac. ” 3516 Page 205-6. Peport oe IMajor Long, United States Army, 1817 and 1823. The Wisconsin Piver was visited by Maj. S. 11. Long, United States To]iographical Engineer, in 1817, and again in 1823, and he thus describes it: ^Mhie Wisconsin Piver, from its magnitude and importance, deserves a high rank among the ti-ibutaries of the Mississippi. AVhen swollen by a freshet, it affords an (206) easy naviga- tion for boats of considerable burden through a distance of more than 180 miles. Its current is rapid, and like the Mis- sissippi, it eml)osoms innumerable islands. In a low stage of water its navigation is obstructed by numerous shoals and sand-hanks. At tlio distaiH'n from its niontli above nien- liomal (too ^I’eat an estimate by tiO miles) there is a portage ol on(‘ mik^ and a halt, across a flat meadow, whieli is occa- sional ly snhjec't to inundation, to a l)rancli of Kox River of (irecm Hay, finis (ijf ordnu) (mother imvifjdbU^ (:()iiimiinic(iti()n H'hich boats /n/?;c loam kuoivn to pass. Tiie valley of tlie Wis- consin is somewhat nai'rowei* than those of most other rivei's ol this region, hut in some resj)ects is very similar to tliem. 1 li(‘ high country here assumes a more hilly and broken aspect, and the soil becomes more sandy and nieagei*.” (See Long’s Expedition to the source of tlie Saint Peter’s River, vol. 2, (‘ha])ter V.)” (A])st., p]). Ihl^o-h.) «= * * * ^ Ik'ige Lk)(). “In 1819 the Fiftli Regiment of United States Infantry made the voyage from Fort Howard, near Green Bay, to Prairie dn Chien, via tlie Fox and Wisconsin Rivers, and Capt. Henry Whiting, of that regiment, ])repared a ma]) of the route on a scale of an inch to 4 miles, with numerous marginal notes. From these the following descri])tion is com]hled: “Fort Howard is on the left hank 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, occupying both hanks 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 3518 tow-line and setting-poles necessary, and the boats are for the most ])art moved up in that way. In this space were })assed, first, the Little Kakahn Rapids, one-quarter of a mile in length, easily surmounted with setting poles and oars; second, the Great Kakalin Rapids, 1 mile in length, very broken and vio- lent. where the boats are unloaded, and the baggage trans- ported 1,000 yards by land; third. La Petite Chute, a ledge stretching across the river, making a descent of about 12 inches; fourth. La Grosse Roche, which makes a perpendicular fall of about 2 feet. Both of these two last-mentioned are sur- mounted with loaded boats. “At La Grande Chute there is a perpendicular fall of about I 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 W^innebago there are two or three in- considerable 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. * * * (Id., p. 206.) “The portage between the Fox and W^isconsin Rivers is 3519 about 2,500 yards; the road runs over a marshy prairie. r ):>>9 9'’lier(‘ is a Frenclniiaii I'esidiii^- on lli(‘ rising- ^i-ound ladwocai llio riycM's. He keeps the j)r()per traMS})()i‘tati()n for boats and baggage.” (Abst., p. Kil^b.) Said maps aeeoiiipanyiiig said report were rec-eived in evidene(*. (AUst., p. 1942.) Wisconsin Kiver. 3537 l^age 200-7. “The (Wisconsin) river is full of islands, formed 'by the sandbars, which are constantly increasing in number. The gen- eral 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 (207) more than 8 or 10 inches of water; the sands, however, are quick, and oppose Imt little resistance. (Ibid., pp. 200-7.)” Page 208-9. Bill for the Improvement of These Eivers and for a Canal to Unite them, &c., — “On Feb. 11, 1839, the U. S. Sen- ate Committee * * * reported a hill the first section of which provided Uor the im])rovement of the navigation of the AVisconsin and Neenah (Up]ier Fox) Kivers, and for their con- nection by a canal.’ The re])ort says: 3538 “The AVisconsin may he rendered naviyahle hy'the removal of the timber from its banks where it overhangs the channe!, and occasionally (Contracting its waters l)y closing the heads of the sluices or shallow channels around the islands. ^ * * A grant of land was recommended to siqiply funds for this inqirovenient.” Page 212. Operations in 1848. — Report of Board of I^itblic AVorks FOR 1848.— “The first board of ])ublic works * * * of Wis- consin. * * * Their operations (‘onsisted in making sur- '*veys and jilans of im])rovenient on the Fox River, and of the canal at “Portage,” and the expenditures were ^1^1 ,(>31.81 . In the plan of improvement they adopted, they decreased the depth proposed by Captain Cram, from 5 feet to 4 feet at low water, and enlarged the dimensions of the locks from 110 feet by 30 feet to 125 feet hy 30 feet. “Captain Cram in his measurements of the fall on the rapids of the Lower Fox necessary to be overcome by dams and locks, iras eonsiderahly under the mark, and he does not enumerate among the list of rapids the Cedar Rapid just above Little 3520 Chute, or else includes them both in one. For convenience of reference in the report of operations following, T will give now 540 ii (‘()]Tect list of the several rapids, with their distance apart, and the fall at each as it was ascertained at the time of the examination made by iVLajor Snter, in 38GG. * * * ‘^Jjist of rapids on Lower Lox lliver, with amount of fall and distances apart between head of each. Name. Fall. Distance apart. feet miles Depere 8 0 ifittle Kaukana, (or Kakalin) Jtapide Croche 8 6 8 G Grand Ixaukana 50 44 Little Chute 38 oi Cedar Eapid 10 oi Grand Chute 38 4 AVinnebago Eapid 10 Green Bay to Lake Mhnnebago 170 28 (Ibid., p. 212.)” Page 213. Character of the Wisconsin and Difficulty of Improv iNG ITS Channel, &c. — ^‘An examination of the Wisconsin Eiver below Portage was made in 1849 by the chief engineer, Mr. Alton. (His full report is given in the assembly journal for 1850, p. 571.) The following from this report is interest- ing, and shows views held in regard to the Wisconsin Eiver which ruled at this period in the progress of the improve- ments. At the time of the examination, the river being at an ‘extremely low stage, a channel having not less than 24 feet could be traced the entire distance from ‘Portage’ to the month. ’ He further says : “The general character of the stream is such that it would be extremely difficult, if not impossible, to make any improve- ment in the channel by the ordinary method. The current is uniformly strong, running at the rate of 3 or 4 miles an hour frequently divided into several channels or sloughs inter- spersed with numerous sand-bars, and, io one eniirely unac- quainted with it, it would seem to present insuperahle ob- stacles to navigation^ “Mr. Alton thought the overhanging trees the greatest ob- stacle in the way of light draught boats, and recommended that they should be cut away and a few snags removed. He also thought the steam dredge boat should be set to work to cut an entire new channel from about half a mile below “the lower ferry” (probably Bridgeport) to the Mississippi, fol- lowing a line of sloughs or pond-holes, as exhibited on a ma]) accompanying the report, and that one of the present channels . 1-11 of the ^^ls(‘()llsin should ho ('losod up. Ilo (;stiuuit(Ml tlu* (Ui- tiro oust of tills at $(),()(K).” “dlio total oxpoiidiluros iii 1841) wore as follows: * * * Total, i]^4r),L>44.():h” “Ou the WIsoousIti Kiver soiuo portion of the overharii^in^ trees that interfered with the navigable ohannel was out down and relno^^ed last winter. A erane-soow for the removal of snags and to afford facilities for the cutting and removal of such trees as may still interfere with the navigation was con- structed in the autumn. ^‘Tlie following-named expenditures were made in 18.10: ^ Total, $59,048.71.” Ihige 214-16. Operations of 1851. — Report of Board of Public IVorks FOR 1851. — The fourth annual report of the hoard of public works of the work done in 1851, dated January 2, 1852, gives the following information: (Here follows a descrijition of elaborate works and jilans for further works to cost $52,^:64.36.) Plan of Improving the Wisconsin by Acting Commissioner Croswell. — ‘‘I trust I may be allowed respectfully to allude to the present navigable condition of the Wisconsin River be- low Portage. On that point, much neglected as it has been, blit little has hitherto been said, and much less accomplished, by way of improvement. The opinion has been indulged, and, in my humble judgment, too readily so, that very little, if any- thing, ean be done to aid the navigation of that stream be- tween Fort Winnebago and the Mississippi. According to a former rei)ort, the ])rincipal obstacles to its improvement were found at the ditferent jioints on the river where the stream is widest. At such ])laces the depth of mater is neces- sarily less than in the narrower ])ortions, (216) where the current is more ra])id. Prom such observations as my posi- tion in the board for the ])ast two years has enabled me to make, and from the ex])erience of those most familiar with the obstrudions of the stream, the o])inion has lieen forced upon me that if the whole volume of water at the head of these fiats was turned to one of the shores, all the main difficulties in the way of the successful navigation of the Wisconsin would at once be overcome.” Page 217. Condition of the \¥isconsin River Improvement, &c. — copy here the report of Acting Commissioner William Richard- son, dated January 1, 1853, ‘as it gives an authentic and com- plete account of all that had been done up to this time on this ])art of the improvement: ‘H commenced at the Portage Ckinal and have ]iroceeded / lidve seven (Id ins ereefed, (ind fn'o non' in course of erec- tion. The ((f/f/rcfjdfe length in linear feet of the nine dams is 4,205, and construeted at a cost of about $11,000. In putting n (lam acu'oss a l)ran<*li of the river where a eonneetion could he made with an island, I liave generally located the dam some (lislaiK'e from the head of the island, for the following rea- sons: tirst, the dam thus located is not subject to a raking ef- fect of the current, as would be the case if the location was at the head of the island; second, a large recess is formed for the accumulation of sand above the dam, whicli will add great strength to it; lastly, the fall l)elow the dam to the foot of the island ])eing hut little, the water below the dam, dur- ing a rise in tlie river, will keep very nearly upon a level with that above; consequently, when the water Hows over the dam there will be no danger of an nndermining process. I have had the dams given good width of base, and raised tliem but little above low-water mark, believing it unnecessary to obstruct the free flow of the water when high. There has been expended under previous administrations of the board of public works, in surveys, &c., upon this river, * * ^ making the aggregate amount of expenditure or liability incurred for the improve- ment of this stream up to the time of finishing the two dams aliove mentioned, $16,372.73. ‘^Several of the dams are under water, and, from a careful observation, I am satisfied that the current will produce no injurious effect upon them. If these dams produce the desired effect, (which I have no doubt of,) I think it is safe to as- sume that unobstructed navigation from the mouth of the river to Portage City, for steamers drawing 2 feet tvate'r, can be effected for a sum not exceeding $25,000, which, added to the present liabilities, (218) will make the sum-total for this part of the improvement $41,372.73, which is certainly a less sum than the law sets apart for the same. ‘‘I have employed a small force in clearing overhanging tim- l)er from the channel. 54 : “ I^^Xl’KNDITlJKKS IVIaDK IN 1852. Depere l\api(le C^roelie (Iraiid Kaukaiia [ Divided eciually in the eonsoli- Little Chute ^ dated table.— (I. K. W Cedar liapids Grand Chute Upper Uox^ dredging Portage Canal Wisconsin Kiver, survey, $491.16; improvement, $ 11,000 Contingencies, including patent for lock-gates, &c.. $ 15.00 4,648.94 47,262.42 9,559.17 22,993.2:1 2,433.15 23,227.29 11,491.16 15,513.19 137,143.55 (Ibid., 219.)” Pages 223-4-5. Progress of the Fox and Wisconsin River Improvement Subsequent to 1855- ’56. (224) '‘The company have two powerful dredge boats, which will be engaged in deepening the upper river at all points which may be necessary during the next year. Two wing- dams have been built in the vicinity of Princeton on the bars, which contract the water and form a good channel over the bars. Several more wing-dams will be built the coming year between Princeton and Berlin, and these, with the dredging which will be done, will form a good channel for lioats draw- ing 34 feet of water at all ])laces on the [T])per Fox during ordinary low water on said river. "A dam and lock have been ])artially built at Montello. A new lock has been built at Fort Winnebago, on the site of the one built liy the State, and sunk 5 feet lower than the old lock, to give sufficient depth for navigation. It is now antici])ated that a lock and dam of low lift may have to be built about four miles l)eIow Fort Winnebago in consecinence of the trouble ex- perienced in keeping that ])art of the river open for naviga- tion.” Pages 230-1. Condition of the I ower Fox River Improvement in 1866. — “The Depere dam is located at the head of natural navigation of the Fox River, 5 miles above the town of Green Bay, and 7 miles above the month of the river. It is 1,400 feet (231) long and 6 feet high, and in good order. The canal-section is 750 feet long, and forms a basin. The lock is composite, with AV()()(1(M1 hotloiii, is UO feet long-, 35 fc*(it wide, 17 feet liigli, 8 Jeet lift, witli 4 feet 3 inelies on the lower miter-sill. Four feet three inehes is tlie greatest deptli attained on the lower miter-sill, but when the wind blows out of Green Bay, tliere is sometimes not more than 2 feet. large i)iece of shoal water inteiwenes between the lock and the channel of the rivei'. The bottom is solid rock. . “The upper level has b feet or more depth of water to within half a mile of Inttle Kaukana lock, where it diminishes to 5 and 4.” Kstimate. “To make 4 feet draught $45,000 To make 6 feet draught up to the next lock, with locks 320 by 35 feet, will require 83,300 “The Little Kaukana dam is 0 miles al)ove Depere. It is 550 feet long and 6 feet high. It is (piite level, but leaks consider- ably.” “The canal leading around the dam is feet long, with the lock at the lower end. The lock is composite, 160 feet long, 35 feet wide, 19 feet high, bottom of rock, head-walls of ma- sonry, is in good condition, needing no repairs. It has 8 feet lift, with depth on lower miter-sill of 5 feet 8 inches. “The level above has about 4 feet depth, hut the channel is quite crooked, and to be (available for vessels of 4 feet draught the dam must be repaired and raised 1 foot to make 6 feet draught the dam must be raised 3 feet and straightened; the canal-banks and the lock must also be raised, and the latter lengthened 60 feet for boats 220 feet long. “The Ba])ide Croche dam is 6 miles above Little Kaukana. It is 440 feet long, 6 feet high, and in good condition. A canal 1,800 feet long runs from the dam across a point of land. At the lower end is a fine stone lock, the only one in the improvement, all the others being composite. It cost $60,000. The lock is 160 by 35 feet, 19 feet high, with 8 feet lift, and depth of 6 feet 6 inches on the lower miter-sill. “The level above has 5 feet de])th to within half a mile of the upper end, where loose stones on the bottom cause the depth to vary hetiveen 3 and 5 feet. These stones must be removed. “To get 6 feet draught, the dam, canal-banks, and lock-wall should be raised 1 foot and the upper level cleared of loose stones. For vessels 220 feet long the lock must be lengthened 60 feet. “The Grand Kaukana dam is 41 miles above the Eapide Croche. It is 583 feet long and 6 feet high, ft is in a very dilapidated condition and should be rebuilt. The canal around the rapids is 7,400 feet long, overcoming, by means of five locks, a fall of 50 feet. The average width of the canal on to]) 545 is L‘)0 IVet, with two basins for boats to pass. These loeks are all composite, lOO feet by 35 feet, witli bottoms of rock. Pages 1^34-h.’^ 3)53!) “The following table is made ii}) from the figures of Major Snter’s re])ort, as modified by me in arrangement in the fore- going abstract : ’'Taut.e m Kegard to the I^ower Fox River in the Autumn of 1867. Inter- Distance Number mediate from mouth of Elevation Place. Distance. of river. locks. overcome. miles. miles feet De])ere dam 7 7 1 8 Little Kaukana, dam 6 13 1 8 Rapide Croclie, dam 6 19 1 8 Grand Kaukana, dam 44 234 5 50 Little Chute, dam 2| 26" 4 38 Cedars, dam Of 26f 1 10 Appleton, lower dam 3 29f 1 84 Appleton, upper clam Of 304 3 294 Menaslia, dam Lake Winnebago 5 35i 1 10“ 2 374 Total 374 18 170’’ (Continued next page.) 3540 ^ ^ Table in ] iegabd 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 Bav. 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 1301 11,000.00 Appleton, upper dam 160 18,870.00 63,870.00 Men ash a, dam 170 13,276.00 54,200.00 Lake Winnebago 170 Total $118,400.00 $493,370.00” 546 ‘‘About 7 liiilos below Tortuge u stream called Big Slough comes into the Fox. Jturiug liigh water this eoimeets with the VViseoiisiii and becomes a very eonsideral)le stream, bring- ing a large volume of water into the Fox. In fact, the greater })art of the low country between the two rivers is overflowed by the Wisconsin at this time. “Tlie canal at present is almost filled up with sand, but it is being dredged out. “The only plan of improvement of the Upper Fox Elver 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- 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 cur- rent. Further dredging will give the requisite depth for navi- 355 gation, and the channel thus made will remain permanent. “The volume of the Upper Fox at low water islibt stated 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 slack water 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.’’ Fox Eiver. AYe have quoted thus fully from the report upon the Fox Eiver because that stream by its historical conditions so nearly parallels the Ues Plaines. There are no difficulties in the Des Plaines which are not surpassed by those in the Fox Eiver. It was contended contra that Fox Eiver was a river four feet deep and therefore no parallel to the Des Plaines. The report (pp. 206-7) states of the Wisconsin Eiver that: “the general depth of the water is, at the ordinary height of the water, 4 to 5 feet; that the sand-bars often extend en- tirely across the river, and have not more than 8 or 10 inches of water. The sands, however, are quick, and oppose but little resistance.” Mr. Alton in 1849 reports from examination at an extremely low stage that: “A channel having not less than 2^ feet could be traced the entire distance on the Wisconsin from the portage to the mouth. ’ ’ ''riiis was not llic Fox River wliere the miniiimin of 8 and 10 inelies was encountered. AVe have seen by the profile of 1883, the standard low water profile of the lies Plaines, there were two places where there was not more than 2 feet of water in the entire reach under question. The reports show that the navigation of the Fox and AVisconsin had been improved by the expenditure in 1849 of $45,000, and in 1850 of $59,000, and in 1851 of $16,000 and in 1852 of $137,000. All this had been expended on the river prior to October 1, 1867. That was the date of the voyage complained of in the Alontello case, 11 AA^allace, 411. The Montello was a boat of 20 tons burden and upwards navigating the Fox River between Oshkosh and Portage City. It was libeled by the District Attorney of the United States for navigating navigable waters of the United States without having complied with the Federal Statutes as to steam boiler appliances and inspection and as to licensing of the vessel. The District Court dismissed the libel for want of jurisdic- tion. The Supreme Court reversed the decision, sustained the juris- diction for the libel and ordered a trial on the merits. The Montello, 11 AValh, 411. The District Court then tried the case on the merits and dis- missed the libel on the ground that the stream was not a navigable water. The immense falls 170 feet in 28 miles were relied on as evi- dence that the stream in its natural state was not navigable. Once more, these falls were as follows : ‘^For convenience of reference in the report of operations following, 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 Alajor Suter, in 1866. It is as well to note here that the map jmblished witli our report gives two locations of Rapide Croche; the upper one is the location of the dam, tlie other is a mistake. List of rapids on Lower Fox River, with amount of fall and distances apart between head of each: Name Distance Fall apart feet miles Depere 8 0 kittle Kaukana, (or Kakalin) Ra])ide Choche 8 6 8 6 Grand Kaukana 50 4.1 kittle Chute 38 2 1 Cedar Rajiid .10 of (irand Chute 38 4 Winnebago Rapid 10 41 Green Bay to Lake Winnebago (Abst., ) 170 28 “ Plere are falls of 50 feet in 4f miles; of 38 feet in 24 miles; of 10 feet in f of a mile; and other falls. The court held that the river was naviglde in its natural stale in spite of all these difhcnl- ties, many of which were impassable by water where it became necessary to leave the stream and port the vessel and its cargo around the obstruction by land. The court said: Fox River. From the decision in the Montello case (20 Wall., 430) : ^‘In its natural state, there were, however, in parts of tho' Fox River rapids and falls. At Grand Chute there was a rock making a fall two feet perpendicular; and below certain rapids known as the De Pere, the navigation was especially difficult. There were many other similar though less difficult places. All these embarrassed the navigation of early days, but they did not destroy nor even much arrest it. The stream was always used for purposes of trade; including especially tlie great fur trade, a trade carried on before our Revolution, and when French and British were pursuing their adven- turous commerce far into the savage regions of the Northwest. Smith, the historian of Wisconsin, states that even so far back as 1718, one of Ghe great avenues from the St. Law- rence to the Mississippi was by way of Fox and Wisconsin Rivers.’ In 1673 Marquette and Joliet, French explorers of the source of the Mississippi, followed the line of the two streams mentioned. The stream was then navigated by long, narrow boats, called Durham boats — vessels from seventy to one hundred feet long and twelve broad, drawing, when loaded, from two to two and a half feet of water — which men 541 ) would i)iish with i)()les or ])roi)cd by ours, or havo dragged by horses and mules; sometimes, in very shallow water, wa(J- ing alongside and pushing the boats onward themselves. At places where progress on tlie stream was impracticable the vessel would be unloaded and a ‘i)ortage’ made, till the nav- igator had got beyond the difficult place, and then a reship- nient would be made of the merchandise into some other boat beyond, or into the same boat, whicii unloaded, and draw- ing less" water than before, could be got across the place that in\i loaded state had stopped it. Arriving at the very source of the Fox Kiver, a ‘])ortage’ of less than two miles would l)e made, and the merchandise was on the Wisconsin, and thence it floated to the Mississippi. In May, 1838, a regular- line of Durham boats was advertised to run from Green Bay, near Lake Michigan, to the portage at the head of the Fox Eiver. '‘Tlie State of ILisconsin accepted the grant, and, pursuant to the authority and power vested in the State, a company was incorporated by an act approved July 6th, 1853^ for the improvement of the Fox and Wisconsin Rivers. That act vested in the corporation all the rights and privileges granted to the State by the act of Congress. And the improvement company in carrying out the objects of its creation, built dams, locks, and canals in Fox Eiver, from Eortage City to below De Pere Eapids. Tlie works of this company were on a grand scale, and by them’ Fox Eiver was changed from its nat- ural condition to an improved thoroughfare, for the use of which all boats were required to pay toll. * * ^Mn consequence of tlie acts of Congress, and of the State, and of the increase of trade from the Northwest, over the IVisconsin Eiver, across the portage, and upon the Fox Eiver and the lakes, the Pox Eiver was cleared of the ob- structions caused by the rapids, or falls, and the difficult or impracticable passes were removed by locks, canals, dams, and other artificial navigation, so that there was now, and had been for several years, uninterrupted water communication for steam vessels of considerable capacity from the Missis- sipi;! to Lake Michigan, and thence to the St. Lawrence, through the Wisconsin and Fox Rivers; and steamboats had passed, and were constantly passing, over these rivers with ])assengers and freight destined to ]mints and places out- side of the State of Wisconsin.” * * * # * ‘^The court below — resting its decision on the ground thaf before the navigation of the river was artificiaUg improved there had been numerous obstructions to a contTnuous navi- gation, especially below the De Pere Eapids — decided that the river was not a part of the public navigal)le waters of the United States, within the doctrine laid down in The Daniel 50 Ball, and The Moniello, and dismissed the libel. The United States appealed, and now assigned as error — ” * * iff ik ih j\Ir. fJnstiee JJavjs delivering the opinion, said: * ^‘The Fox Jviver has its source near Portage City, Wiscon- sin, and flows, in a northeasterly direction, through Lake AVinnebago 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 at Portage City with the -Wisconsin Piver, which empties into the Mississippi. Prom its source to Oshkosh the river is frecpiently spoken of as the 'Upper Fox.' From Lake AVinnebago 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 nav- igation, so that there is now, and has been for several years, uninterrupted water communication, for steam vessels of considerable capacity from the AUssissippi to Lake Alichi- gan, and thence to the St. -Lawrence, through the Wisconsin and Fox Kivers ; 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 Wis- consin. "It is said, however, that although the Fox Eiver 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 Eiver, through its entire length, could ont be nav- igated by steamboats or sail vessels, but it is equally true that it formed, in connection with the AVisconsin, one of the ear- liest and most important channels of communication between the Upper Aiississippi and the lakes. It was this route which Alarquette and Joliet took in 1673 on their voyage to discover the Alississippi ; and the immense fur trade of the Northwest was carried over it for more than a century. * * * more modern times, and since the settlement of the country, and before the improvements resulting in an unbroken navigation were undertaken, a large interstate commerce has been suc- cessfull^v 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 Fox Eiver, with the aid of a few portages, and would readilv carrv a verv considerable tonnage." The Moniello (Heed. Abst., p. 933-4), 20 AVall., 430. Till'] OHIO RIVER AND TILE RAPIDS OF THE OHIO. The Falls of tlie Oliio are thus described by Thomas Hutchins, Surveyor General of tlie United States, in a letter written in 1778 from a ijersonal examination in 1766, and published in 1797 in Jmlay’s Topographical Description of the Western Territory of Xorth America, pp. 489-490 (Abst., pp. 938-9). The passage by Surveyor General Hutchins is as follows: ^‘The navigation of the Ohio in a dry season is rather troublesome from Fort Pitt to the Mingo town (about 75 miles), but from 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 in 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 lioats or barges, without a good pilot; it would be advisable, 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 tliem. ‘Hn a dry season, the descent of the ra])ids in the distance of a mile, is about 12 or 15 feet; and the ])assage down would not be difficult, except perhaps for the following reasons: Two miles above them the water 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 filled 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 Rapids 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, and u{)on each side of it are large broken rocks, a few inches iiri(l(‘i- water.* Tlie ra])i(]s are nearly in latitude 38^ 8'; and the only Indian villag’e (in 1776) on the banks of the Ohio Iviver between them and fort Pitt, was on the northwest side, 75 miles l)elow Pittsburgh, called the Mingo town; it contained 00 families.’^ (The ma]) made ])y Jlutchins, referred to in the quoted passage, is shown on the opposite page, and appears in Imlay’s work at page 33. It is the same map which is referred to by Government Engineer Gen. Godfrey Weitzel in tlie extract from the U. S. Engineer's Ee- port for 1882, Vol. If, pp. 1881-3, wliich is in evidence )Abst., j). 1021 ).) Surveyor General Hutchins in Imlay’s America, pp. 489-490; (Abst., pp. 938-9). The falls of the Ohio^ Prom the Eeport of the Chief of Eiigineers, IT. S. A., 1882, Vol. IT, pp. 1881-3, by Godfrey Weitzel, Major of Engineers: Desckiptiox. ‘^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 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 surface in this and in the pool below being about 26 feet in low and about 18 inches in the highest stages. ^^*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 pitch, but only runs rapid over the ledge of a flat rock; several boats,’ he says, W^ssed it in the dryest season of the year, unloading one-third of their freight. They passed on the north side, where the carrying- place is three-quarters of a mile long. On the southeast side, it is about half the distance, and is reckoned the safest pass- age for those who are unacquainted with it; but it is the most tedious, as during part of the summer and fall the batteau- 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.’ ” ^‘See the annexed plan. It is a correct description of these rapids, made by the editor on the spot, in the year 1770.” ff i '.ufc/iuHwclL^ j Ab/iuj ut\f pjAVjO'u’ji ‘‘111 their natural eoiiditioii iheso falls or rajiids \v(3re iin- passable during- the largest portion of the year, and at all other times, excepting when the river was very high, navi- gation over them was difticnlt and dangerous. When th(‘ river was high, the navigation was carried on in it without any diflicnlty. “There were three channels over these obstructions, known as the Indiana, 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 fall, that is, 13 feet, occurred in the first 1,253 yards, or about seven-tenths of a mile, and about two- thirds of its fall, that is, 174 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 184 feet at the foot of the channel, and the difference of level between the water surfaces in the two pools was about 134 feet. At this stage, the steamer Uncle Sam barely made the ascent on a trial. The steamer was owned by Mr. Paul Anderson. Her measured tonnage was 440; she drew 94 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 2f 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 El feet. The rise in the pool below then amounted to about 29 feet, and tlie difference of level between the water surfaces 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 Rock Island. Its condition was similar to the Middle chute and it is navigable a little later than the Middle chute. Almost the entire falls is in the last 185 yards. The shortest line across this natural dam is via the Middle and Kentucky chutes, and is about 3,300 yards or 1-11/12 miles long. “The observations which were made and recorded estab- lished 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 circumstance (as in- dicated 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 tlie rivor falls; that is, the lower pool falls more in a given time than the npper one. ^‘ir. — H istory. ‘M' have recently come into the possession of a tracing of an engraving made for ^CampbelPs edition of Finlay’s His- tory of Kentucky, 1793.’ (This is the cut given above, as a ('om])arison of the descrijition wdiich the cut shows.) ‘^This en- graving bears 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 distance inside of the Kentucky shore line. “It seems, then, even at that early date the question of constructing a canal around these obstructions was agitated. I have not, however, been able to discover any records of such agitation earlier than 1802. Beginning 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 subse- quent acts, and finally fixed at $1,000,000. By the acts of Congress approved May 13, 1826, and March 2, 1829, the Government 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 Sec- retary of the Treasury should vote for president and di- rectors of the company according to the number of shares owned liy the Government, 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 holieve, became a stockholder in a private corporation (^liar- tered by a State, and that, too, in one whose object was to overcome obstructions to navigation in a national higliway. '‘The company liad great diniculties to encounter in rais- ing money, and otherwise, but the work was prosecuted witli energy, and the canal was opened and the first boat passed through it on December 22, 1830, although many improve- ments on it were subsecpiently made. As originally con- structed, 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, a width of 50 feet, and a lift of about 8 feet 5} inches. The total cost of the work was $1,019,277.09. This includes the purchase of land. When the canal was completed its dimensions were thought to be sufficient for all time, hut in a little over twenty years (in 1852) only fifty-seven one-hundredths of the tonnage engaged in the Western rivers could pass through the locks.’’ (Report of the Chief of Engineers, U. S. Army, 1882, Part II, pp. 1881, 1882, 1883.) (Abst., pp. 1619-20-1-2.) With respect to the proposed improvement of the canal (1859- 1860), the report continues: '^In the meantime the government had ordered three sur- veys of the Falls of the Ohio. These were made in 1843, 1845, and 1853, by Captain Cram, Corps of the Topographical En- gineers; 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 (certain recommended plans for improvements) 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 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 pass- ing places, in constructing a guard-gate at the head, in con- structing 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 rocks inside of it to protect boats passing in and out of the canal from accident or delay, by being carried with the strong current that sets out over the falls against the ledge of rocks, and in providing a floating boom at the head of the canal to exclude ice and drift; the new locks to be placed 1,500 feet below tlie old locks and he connected witJi the old (ainal hy a branch 2,(kK) i'eet long, the locks to he two comhined, each liaving a lift of 13 feet, and tlie rocks at the foot of the canal to he 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 re- duce the width of water-way to 90 feet.” (Id., p. 1886.) “At the next session of Congress a ‘joint resolution pro- viding for the necessary surveys for a ship canal around the hhills of the Ohio Kiver, for military, naval, and commercial pur 2 )oses,’ was passed. It was approved March 29, 1867. It authorized and directed the Secretary of War to cnuse sur- veys, with plans and estimates of cost, to be made by an offi- cer of Engineers, for a ship-canal around the Falls of the Ohio Eiver, on the Indiana side thereof, of suitable location and dimensions, for military, naval, and commercial pur- poses, and also to cause said officer to estimate the expense of comjDleting the Louisville and Portland Canal, on the Ken- tucky side of said falls, according to the plan on which the said canal company was then proceeding 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) in- terest, payable semi-annually. “In my report of the survey I recommended, for the rea- sons given, not only the immediate enlargement of the Louis- ville and Portland Canal, but also the immediate construc- tion of a new canal on a proj)er route on the Indiana side, with a width of 120 feet and new locks 100 by 400 feet. I be- lieved then, and do nowy that the radical improvement of these obstructions demanded both, and that the commerce of the Ohio Eiver was entitled to the most generous treatment at this locality. “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 be- ing increased 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 afterwards changed to the head of Sand Island to give more water in the Kentucky channel and thus obtain the necessary dei^th there without expensive under-water rock excavation.” (Id., 1887.) still ]'(‘(1ii(‘(m 1 the; width of llu; (“<\nn\ to jdjf)ut 85 1Vh‘ 1. lor tlio sake oJ* eeonoiiiy. li is now iieai-ly Hill te(;t wifle. 1 built a iiigh-water clianuel in the river througii tlie outer liali* of the draw in the railroad bridge, for tlie aeconnnoda- tion of boats when the river was so high that they could not pass under the bridge through the wide span without lower- ing their cliinmeys, and I made the apron or crib dam at the head of the canal 1,800 instead of 600 feet long, and raised it very considerably.” {Id.^ p. 188.) (Abst., pp. 1622-3-4.) THE OHIO ^TESTIMONY OF WITNESSES AS TO. Captain AVilliam H. Bing (Abst., p. 663) : Home, Cincinnati; age, 60; steamboat captain and pilot since 1873, when I was licensed. I have navigated the Ohio, the Great Kanawha, the Big Sandy, and the Kentucky (Abst., p. 663). I have seen the Ohio vary from 71 feet deep at Cin- cinnati, I have seen it run as low as 12 inches, from 12 to 14 inches between Pomeroy, Ohio, and Ironton ; there are several shallow places where that goes down to about 12 inches; the Ohio Kiver has those high floods and low water periods every year (Abst., p. 663). Most every summer the river goes as low as three feet. At the low water depth of 12 inches the water was not 12 inches deep over the entire width of the channel, but only in the chutes, the deepest part of the river. Th,e Court : Let me understand ; a boat going down through that river must run over more than that one foot of water, must it not! A. No, sir. Q. It runs over the one foot of water! A. The small boats there. Tlie small boats in the river, when it gets that low. (^). They cannot use the big boats! A. No, sir. Mr. Starr: — Q. When tlie Ohio river gets down to that low stage of water, what is done in the way of navigation! You say the large boats are no longer able to go, what do they do! A. There is a little boat that goes up Sandy Eiver; we generally get them up the Ohio river. Q. You get these boats! A. Yes, sir; when we cannot use the larger boats, we gen- , erally use the boats used in the small streams. They navigate and carry freight on those small stages of water that occurs whenever the river gets that low. It is not may be not more than once in eight or ten years when it gets that low; but I have steamboated on littie boats wlien the water was only twelve inches in the river. AYe carry light freight and passengers. You couldnT carry over eight or ten tons on tliat low water. The little boats would probably draw live or six inches; they were not built very wide. These boats that would navigate on the twelve inches of v/ater and carry freight are about 100 feet long, 90 to 100 feet long and about 10 to 18 feet wide, with a little flat bottom an(l square bow. The Court: Q. Steamboats? A. Yes, sir; that is for low water. The Ohio river at that point has sustained some improve- ment. They have put in dikes and dams, helped the channel considerable. I ran over it there before the improvements were made. Since then they do not have it that low. The 12-inch water was before the improvements had been made. If those improvements had not been made, that low water would have occurred more frequently every year. (Abst., p. 664). Witness Lyman E. Cooley, testified (Abst., p. 799) : I have been up the whole length of the Ohio Eiver, and up that river in the fall of 1883 for the purposes of letting contracts for $500,000 worth of watercraft, which I had de- signed written specifications for, and stopped at all the points along the Ohio Eiver where there were boat yards. The Ohio Elver at that time was not at an extereme low stage, but 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 there was less than 30 inches of water on the bars. The Ohio Eiver 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 state the 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. Those are located just above Louisville, just opposite and below Jeffersonville, Indiana, and New Albany, Indiana, on the opposite side. Below Pittsburg the river has reached as low a stage as 1,500 feet of water 23er second, and at times only a few inches of water, eight to ten inches of water on the ripples; that is, in depth; and the Pittsburg coal fleet has been locked uj) for as much as five months waiting for a boating rise, as they call it, in order to pass down the Ohio Eiver, and over a million tons of coal has laid in the Pittsburg harbor waiting an opportunity to 23ass out when the water should be in the stream sufficient to float the coal fleet. (Abst., p. 799.) In the census of 1890, when I had occasion to make some comparisons of that kind in regard to the traffic on western r)(\] rivors, (li(‘ (‘oiiimerc'o of tlio Ohio llivor and its lj‘i})utai‘i(iS ainoiinl(‘(l to (ivo })or oont. in ton inilos of that eai'riod })y all Iho railroads in tho UnitcMl States (Ahst., p. 791)-H()()). The smaller eraft tliat 1 eneonntered on the Ohio River were nnieh like tliese smaller eraft of the Missouri jiiver, 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 boats in many eases go out of eommission, 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 Mis- souri and into the Arkansas. AVhen the low water arrives the little boats eome out of the small streams and carry on the business on the big streams (Abst., p. 800). 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. Report of Captain Marshall, Ex. Doc., 264 (51st Cong., 1st Session), under date of March 10, 1890: ‘C\ll these l)oats are built for s|)ecial routes; navigating the Mississippi and Ohio Rivers below St. Louis and Cin- cinnati at good navigable stages of water. At low stages all of the Ohio River boats and a large part of the others are withdrawn and replaced with lighter-draft l)oats. Those that remain go dragging along over sand-bars, at least above (kiiro, with half or no 'oads.” Ohio Tributaries. The Green River is navigated for 200 miles and has 6 locks and dams with a total lift of 83 feet. It is 120 feet wide and 4 feet dee]) in low water. (Bewley, ^Vbst., ]). 1017.) It was not navi- gable before the locks and dams were ])ut in, and then only for 2 or 3 months in the year. The Nolin is a branch of the (Ireen : The Green River dam raises the water in it so it is 6 feet dee]). We navigate it 14 miles up. (/d., Abst., ]). 1018.) The Barren is 100 feet wide and has a dam 15 feet high that gives 41 feet. We have to s])ar over sand bars. {Id., Abst., p. 1018.) 5(12 'rii(‘ Kculuckf! I lia\x‘ navigated 210 miles, it lias locks and dams. 1die water is liacked up from one dam all the way to the next one. It was navigalile in a way before the improve- ment was put in. — 1 don’t know. — I know that they broke out in .187(1, and after that they were navigable with a small boat per- haps () months in the year. Then the water got down so the small l)oat had to quit. There was not over 18 inches. That boat would not carry over lO tons. She towed her freight on a barge — 56 tons. A good ])art of the year the water overflows the dams. With a boat drawing 4 feet and 5 feet of water on the dams, we go over the dams going down stream. It is no risk to go over on a dro]) of a foot in 400. I would not say I have not gone over on a dro]) of 2 feet in 400. (Pryor, Abst., p. 1025.) The Kanawha. Prior to the improvement by the United States the low water depth of the Kanawha went below 15 inches every year. We used small light-draft boats on the Kanawha. I have seen it as low as 10 to 12 inches. We could navigate and carry light freight on 12 inches. (Bing, Abst., p. 664.) At Charleston, W. Virginia, it got as low as 10 inches in the river. AVe made two trips a week on the Kanawha, for about 3 months a year. It would vary from 10 inches to 3 feet. AVe brought down barges loaded with coal and shoved the empties back up. The}" drew empty 6 to 10 inches. In high water we would load them down to 6 feet, 150 tons: — On three feet the same boat would carry 100 tons. It had a great many chutes there, strong cur- rents with walls built up and the channel close to the walls, with a current of 8 to 10 miles that we navigated. We had to warp up and cordelle over these chutes with a boat half loaded. (Bing, Abst., ) Surveyor General Hutchins said of the Kanawha in 1778: ‘^Big Kanhaway falls into the Ohio upon its southeastern side, and is so considerable a l)ranch of this river, that it may l)e 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 uj) Kanhaway the land is hilly, and the water a little rapid for 50 or 60 miles rurtlicM’ lo llio falls, yet l)atteaux oj* l)arges iriay he easily rowed tliillier. These falls wer(‘ foraierly thought iinpass- ahle; l)ut late diseoveries have ])roved, that a wagon-road ]nay he made through the momitaiii which occasions the falls, ami they hy a portage of a few miles only, a communication may he had between the waters of great Kanhaway and Ohio, and those of flames ]\iver in Virginia.” I inlay’s America, p. 494. The Cumberland. Harbor shoals in the Cumberland have a fall of over 8 feet in a mile. In low water they have to warp over it, but the Govern- ment has put in a lock and dam. (McCullough, defendant’s wit- ness, xVhst., p. 1177.) ” We have no locks and dams in those rivers, not in the Cum- herland' and Tennessee.” (Mason, another of defendant’s wit- nesses, Ahst., ]). 1220.) ”They built wing rams, but not regular dams across the river.” Id., defendant’s witness Mason, was egregicusly mistaken in this as the next authority shows. From the Report of Chief of Engineers, 1891, Part V, Appen- dix WAV, page 3215: ”The (hnnherland River from Nashville to the Ohio is 298 miles long, and has a total fall of 122.3 feet, an average fall of 5 inches ])er 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: “ H^lfl'orts 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 A^al liable, do not satisfy the interests of navigation; a more radical improvement, in keeping with that in progress on the river above Nashville, being demanded.’ ” (Abst., p. 1214.) Reports of elaborate improvements of the Cumberland and its tributaries and of private dams in the Cumberland will be found in the report of Colonel Barlow, U. S. Engineer’s Reports, 1887, Volume nr (the same volume which contains the re])orts of Major J Iaii(l))iiry and ol* the Comstock Board on the Des Plaines and Illinois KMvers), ])j). 1708-1779, and also of the Ohio, Allegheny, Kanawha, Big Sandy, Wabash and Kentucky liivers in the same volume, ])}). 1781-189-1-, disclosing a multitude of conditions sur- ])assing anything on the Des Plaines, — among others, a current of 1M.0 miles an hour in tlie Kentucky at the Beattyville Danl (p. 1873), and the report has a standard of comparison of slopes of 1 foot in 100 (52.8 to the mile), in the Susquehanna (p. 1883), and the statement that the upper Kentucky ^Os only navigable for coal l)oats and rafts about 6 months of the year.” (p. 1884.) Tennessee Rivee. ]\rr. AIason, the witness for the defense, said of the Tennessee: ‘‘There are no locks and dams on the Tennessee River or the Cumberland River. They built wing dams, but not regular dams across the river. The Tennessee River and the Cum- ])erland River are both badly hampered by bridges. They built wing dams to steer the water into a certain channel and narrow the stream and make it deeper.” (Abst., p. 1220.) Mr. Cooley said : “There are many of the 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 mouths or three months have a good stage of water. The Government has spent con- siderable money in improving these little streams, so as to ])roduce fifteen to eighteen inches of water continuously over the ripples, in the interest of tow-boating and flat boating by the people, the riparian owners. 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 the Hiawasse, the Little Tennessee, the Holstern, the Clinch and French Broad, and all streams of that class in East Tennes- see. Thev are used for carrving on a profitable commerce.” (Abst., p.‘800.) John McCaffeey: I have run a boat from Paducah to Florence, Alabama, on the Tennesssee; have made trips on other boats from Flor- ence up to Chattanooga, Tennessee. The Muscle Shoals com- mence somewhere close to Florence — a little above it, — have been up in around the Muscle Shoals in a, })oal. \ liave been u[) Ibe (biuiberlaiid River three or tour or five times on a boat 100 to 150 miles that the boat is run uf) there. (Al)st., ]). 1157.) The boat was 155 Feet lon^’. (Abst., ]). 1157.) ''the low- est water we ever run on on the Tennessee was 41 Feet. (Abst., p. 1100.) I never knew oF them navigating on a stream that bad a slope as high as 0 or 7 feet to the mile on any kind of a stream. (A1)st., ]). 1100.) Take the Muscle Shoals there on the Tennessee and I think there is nine miles there that lias got 80 feet fall. That would be in round numbers 9 feet to the mile and they have a canal around that. They don’t navi- gate the river there at all. (Abst., p. 1160.) Joseph E. McCullough. (Abst., p. 1176.) I have been up the Tennesese pretty near to the head of it, but not as a navigator. The Government is improving the bad places in that river, in fact wherever I know of a bad place hy shoals or rapids in any^of the rivers that I have operated on or passed over the Government is improving them. Tennessee River — Muscle Shoals. U. S. Engineer's Report for 1872. (Pages 495, 497, 512-514.) ‘‘Resurvey of the Tennessee River from Brown’s Ferry, Alabama, to Florence, Alabama, (Act of Congress approved February, 1871.) Tlfat portion of the Tennessee River 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 River Shoals, beginning two and one-half miles below Brown’s Ferry, and extending to the mouth of the Elk River, eight miles and one-half, with a fall of 21 feet. Jjig 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 con- structed in 1832- ’57. Little Muscle Shoals, beginning one mile and one-quarter below the foot of Big Muscle Shoals, and extending to Flor- ence, Alabama, five miles aud 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 feet and a depth varying from 8 feet to an unknown amount over 12 I’eet, and with one roeky l)ar about one mile and three- (|narters below the nioiitli of Elk Kiver. At tlie foot of Big- Alnscle Shoals, and l)etween tliat and the li(‘ad of Little Muscle Shoals, lies the deep water of Bain- bridge, or (kimpbeH’s Ferry ])ool or eddy, one mile and one- (jiiarter in length, with a fall of two feet, and a depth vary- ing 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 Ferrv pool (deep) 6.3 5.4 Big Muscle Shoals 14.4 82.1 Fampbell’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 passsing these obstructions and uniting the two dissevered branches of the Tennessee, which for two hundred and sixty miles below and two hundred miles above is navi- gable for the largest class of western river steamers, while smaller steamers are able lo pass two hundred mdes 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- 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 lo 5 feet; and about twice as much on Little Muscle Shoals; at Florence, 20 feet; and at Waterlook, twenty- eight miles l)elow Florence, 30 feet. This rise enables large vessels to pass up to Knoxville, two hundred miles above Chattanooga, and renders the Little Tennessee, the Holston, and the French Broad navigable for smaller steamers for some distance farther. * * * 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 hfty- five miles, Coast Survey ineasurement. 5G7 I'lio greater poiiioii ()[‘ this division fiirriislies depth enongli for the passage ot* any boat that floats on tlie western waters, hilt scattered along tlie line are numerous reefs and bars on which, during the season of lowest water, less than 3 feet water is to he had, while tlie channel-ways of many others, though sufficiently deep at low water, are so crooked and nar- row that it would be impossible for tows to pass them, and, therefore, need to he improved before they can he 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 be- low Florence, Alabama, which, next to the Muscle Shoals, con- stitute the most serious object to be met with on the whole line of the river. In the saine 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 commu- nication by boat, between Florence and the lower river, is cut off, steamers being unable to ascend beyond Eastport and AVaterloo, about thirty miles below Florence. Attempts have been made, within the past four years, under congressional appropriations, to improve the river at these points so that 3 feet water might be carried over them at the lowest stage. To secure 5 feet depth of water over this olistacle during the remainder of the 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 follow- ing ))oints, viz: Bear Creek Shoals, Indian Creek, Big Bend Shoals, Diamond Island, AYolf Island, Chalk Bluff, Beech Creek Shoals, Buffalo Shoals, Armstrong’s Tow-head Bridge, at Johnsonville, Duck Elver Shoals and Suck, Turkey Island Shoals, AVhite Oak Island, ITarrican Island, Leatherwood Shoals, Sandy Island, Panther Creek Island, McCullough’s Bar, Blood Rivei* Island, Pentecost Tow-head, Widow Rey- nold’s Bar, Grubb’s Tow-head, Little Chain, and Grand Chain. At most of these points 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 given without an accurate survey, I have roughtly fixed the probable aver- a^(‘ cost ol* ijiipi-oving- these j>oiiits at $3,000 eaeli, except Big l>en(l SJioals, wJiicli, })eiiig over three miles in length, will cost a large amount. This and Duck JBver Shoals are the two most troublesome points l^elow 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 sel- dom falls below 30 inches. The entire cost of securing 3 feet de])th 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 em- ])loyed on the Tennessee, but they would become serious ob- stacles 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 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. ^luscie Shoals Bivisiov . — Extending from Florence, Ala- bama, up the Tennessee, passing Little Muscle Shoals, Big Muscle Shoals, and Elk Elver Shoals, to Brown’s Ferry, 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 de- signed to pass over the remaining portions of the route, but also for the largest steamers ever likely to be employed in the Tennessee Elver trade. * The dimensions proposed for this canal were as follows, viz:- — 100 feet wide at wmter-surface and 6 feet deep; lock- chambers, 60 feet wide by 300 feet between miter-sills ; and its estimated cost was $3,676,000. Alabama Division . — Extending from Brown’s Ferry, at the head of Muscle Shoals, up the Tennessee to the mouth of Short Creek, two miles and a half above Guntersville, Ala- bama, distance seventy-five miles by steamboat measure- ment. This portion of the river is broad, straight, and almost free from obstructions, with abundant water except at Gun- ter’s Bar, Gunter’s Eeef, Flint Eiver, Tow-head, Whites- burgh-Shoals and Eeefs, and Limestone Shoals, where, during the lowest stage of the river, the depth of water varies from 10 to 20 inches.” (Abst., pp. 1626-7-8-9-30.) John M. S\vi':kni:v^ Ho (it Iriiil-^e.r. 1 mu inUu-osted iii the Outing Boat (yoinjiany of (Jiica^»(), Avho build motor l)oats; in the .Howard Shi]) J>uildiug (.\)m- paiiy at Jeffersonville, Judiaua, and in some allied proper- erties with that coucerh of repair plants on the Ohio Jliver. I liave been building river boats particularly since 187b or 1878 in my own — The steamboats have been used generally on the western rivers of the United States, some in Soutli America, some in Mexican Rivers, but generally on the west- ern waters, the waters that flow into the Gulf of Mexico, as they are classified. I have built several boats that have gone into the St. Johns River in Florida, and some on the Chat- tahooche River. (Abst., p. 320.) I never have built any boats for the Chattahooche River that were smaller than 150 feet by about 26 or 28 feet wide. Those boats would draw without any load in them about 20 to 22 inches; not evenly all over, because a boat of that type is usually — if she is drawing 22 inches at her stern she would draw probably 18 inches for- ward. A boat of that kind carrying cotton down the Chat- tahooche River wmuld be loaded deep in the vessel so that the bow'wms very much deeper, would be loaded to about five feet. A boat of that character would carrv 150 tons. (Abst., p. 322.) Defendant's Witnesses Concerning the Ohio, its Tribu- taries AND Falt.s. Flmore AV. Bewley (iVbst., ]). 1015) : Steamlioat man, fi-oni Bowling Green, Kentucky; 58 years old; been steamboating -h) years on the Ohio, Green, Barren, Rough, Nolin and Cumbei'land Rivers. 1 navigated the Ohio with stern-wheel steamboats ])rincipally for about eight years, the Ohio alone about four years, and the Green four years with it, the Green alone 36 years; tri|)s about 200 miles. We navigated the Barren between Fvansville and Bowling Green; steamboated up the Rough River 30 miles for about eight months, (Abst., p. 1015) and on the Nolin River about six months for about fourteen miles, and on the Cumberland for about six months for 200 miles up. T was interested in six boats on those rivers. (Abst., p. 1015.) Q. Captain, what is the record of the Ohio River as to its navigable stage of water? A. As a navigable stage in extremely low water, w^e navi- gated there on as little as 24 inches. Not without a great deal of trouble, however. Q. How frequently does that occur? ^V. AVell, it has not occurred in the last four years. Up to four years ag“o, it was most every year, that is, in the fall of the year in extremely low water. (^). JIow long would that continue! A. Well, from two or three months. (^). That was in the fall! A. in the fall. (^). And at what points did you find that depth! A. W^ell, we would find that at difl'erent__sand bars, not the same de])th at all the bars. Only at sand bars would we find the shoal water. (Abst., ]). 1015-1016.) The Green liiver is navigated for 230 miles. Our regular trip was 200 miles long, 170 of it on the Green, 9 miles on the Ohio. (Abst., p. 1017.) The Green is 120 feet wide at the head of navigation and 4 feet deep in low water. The river is locked and dammed. The Green Eiver itself from where we enter it at Mammoth Cave landing is 122 miles, and there are six locks and dams in that district. The first is 60 miles up, the next two 45 each, the next 20, the next 13, the next 17. (Abst., p. 1017.) The first dam is 14 feet high, the second about the same, the third 17 feet, the fourth 14, the fifth 13, the sixth 11 feet liigh; total, 83 feet of raise in the water. 1 never navigated the river before the locks and dams were put in. (Abst., p. 1017.) 1 do not know how much added depth is ob tained by the locks and dams. The navigable reach of the Barren is 30 miles. 1 do not know how deep the water is above the slack water from the dams in the Barren or the Green. The current is greatly reduced by the dams. (Abst., p. 1018.) There is one dam in the Barren 15 iniles from its mouth. The Barren is about 100 feet wide. In the slack water of the dam it is 44 to 5 feet deep. (Abst., p. 1018.) The dam has a height of 15 feet. Our boat in the Barren is 120 feet long, 25 to 30 feet wide, carries 200 tons. The Nolin is a branch of the Green, below Mammoth Cave. We navigated it 14 miles up. The dam below it in the Green .Kiver raises the water in the Nolin. It is from 75 to 90 feet "^ide. (Abst., p. 1018.) It holds a depth of 6 feet above the dam. The miter sills of the locks are designed to carry 44 to 5 feet. The Kough Eiver has a stretch of navigation 30 miles long; it is about 90 feet wide. We have a lock and dam in that river eight miles up. It was not navigable except in high water before the dams were put in. The Green was not navigable except in high water before the dams were put in. (Abst., p. 1019.) The high water period on these rivers lasts from two to three months in the year, and then they are navigable. I never cordelled a boat through anywhere myself. I have 571 spanvd over a sand bar. We run down to llie sarid bar, set the spar over on tlie side of tlie })oat, put our line on the eapstan with a pair of blocks, and the sjiars cant her down. (Abst., p. 1019.) 1 navigated the Cumberland from its moutli 200 miles up to Nashville with' a boat 160 feet long, 30 to 32 feet beam, and she would carry 350 tons possibly. That was before the improvement was nuide of the liarbor shoals. (Abst., j). 1019.) AVe made one trip on that water in 1904. At Nashville we met boats that navigated from above; they were about tlie same size and tonnage. (Abst., p. 1020.) AVe didn’t carry freight over the shoals; we used lighters over the shoals. A lighter is a barge that the steamboat has in tow, and when we got to the shallow places where there is not enough water for the boat to go over with the freight we move it from the steamboat onto the barge, as much as is necessary to let the boat over and take the freight over on the barges and the steamboat over light and then reload it. (Abst., p. 1020.) My principal navigation was on the Green River in slack water. I have navigated the Ohio between Evansville, In- diana, and Cairo, Illinois. I navigated the Ohio down to two feet of water at times in low water. I was there about four years ago in extreme low water. That has not occurred dur- ing the last four years, but prior to that it occurred nearly every year. On the 2-foot stage they use the small boats, low water boats from 150 to 160 feet long, breadth 30 feet. On 2 feet of water they would not carry over 75 tons. (Abst., p. 1020.) There has been considerable work done by the gen- eral Government in the way of taking out these bars and building dams to get slack navigation on tlie Ohio. (Abst., p. 1020.) Alost of my navigation has been on slack water and that is an easy way of navigating with the least possible difficulty. (Abst., p. 1022.) Capt. Nathan th Pryor (Abst., p. 1022) : Home, Carrollton, Kentucky; age forty-two; steamboat pilot thirteen years; master eleven years; in steamboat busi- ness 28 years. Navigated the Kentucky and Ohio; used all kinds of boats, propellers, stern-wheel, side-wheel, and gaso- line lioats, from 30 feet to 300. (Abst., pp. 1022-1023.) The gasoline lioats I have used were 70 feet long, 18 feet wide, and were freight carriers. I liave navigated them between Aladison, Indiana, and Monterey, Kentucky, 12 miles on the Ohio River and 40 on the Kentucky River. (Abst., p. 1023.) The Goverm ment has improved the Kentucky River. I have navigated it 271 miles — that is a mistake, it was 210 miles. (Abst., p. 102A) It has 11 locks and dams. The water is backed up from one dam all the way to the next one. It was navigable in a way before the improvement was made. As far back as 1 can j-eineinher when 1 ili-st started at tlie age of about 14 y(‘ars, the Jocks and dams were broken out. They were orig- inally built by the state, and the Government took charge of the river in 1880, repaired these old dams, and built some new locks and dams, and when 1 first started to work on the river at 14 years of age, 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 ({uit. Whether it was navigable befoi-e the state put these dams in or not, I could not say, be- ('ause that was J)efore my day. (Abst., }). 1025.) They broke them in 1870, and after that time they were navigable with a small boat perhaps six months in the year. The water got down to a stage where that little boat had to quit ; that there was not over — on the shoal jdaces there was not over eighteen inches of water. That boat had one barge to carry freight on. The boat was 75 feet long and 18 feet wide. Her ma- chinery loaded her so she would not carry over 30 or 40 tons. She carried her freight by towing a barge. Tobacco was the principal freight. They would come out of there with that barge (Abst., p. 1025) Vvdth about 80 or 90 hogsheads of tobacco averaging 1,000 pounds to the hogshead or up to about 50 tons besides the weight of the casks which averaged 125 pounds apiece and would make five or six tons more. I have navigated the Ohio with all classes of boats from Cincinnati to Evansville. The small freight boats would carry, I should judge, 60 to 70 tons; they would run 110 feet long, 20 feet wide, and when fully loaded draw 34 feet;, half loaded they would need 2 feet of water; they do not operate on less than 2 feet. A good portion of the year the dams in the Ken- tucky Eiver are entirely covered and you run right over the top of them. They are from 12 to 20 feet high. But it is too swift to push the boat over, you have got to go through the lock. Occasionally we do run over the top of the dam; we come down stream over the dams. If there is 5 feet of water over the dam and the boat draws four feet we come down over them very often, but we cannot go up stream be- cause the current is too swift. (Abst., p. 1026.) One can easily go over a dam when he has a foot fall down stream. It is no risk to go over on a drop of a foot. It is a fall of a foot per- haps in — well, the gauges will show it is above the dam or below the dam in that distance about 100 to 400 feet on the average. I would not say that I have or have not gone over it on a fall of two feet in 400. (Abst., p. 1027.) I never cordelled a boat. I have sparred a boat" over shal- low water. When you want to lift, you set two spars, one on either side, straight in the water, and have a block and tackle from the top of the spar that runs down through a block on the deck of the boat, and take this line around the capstan. ;ni(l you lifl llio lioud of your bout, up off llio boiton, nnd Iboii to luovo it they will tako a yawl or lif(!-boal aud Tun aslioro and uiako u lino fast aud take it around tli(‘ (aipstaii and trip those spars. That makes the hojit jmu]) aluaid. All lai*^»e boats have those on tlie Oliio aud Keutu(*ky Rivers. I luwer kueAV the gasoline boats to need them. (Ahst., p. 1029.) I have wai'])ed a l)arge ou the Ohio. You put a line out to the shoi'e to a tree oi* anything- tliat will liold, and l)ring your line haek to your boat aud run it tljrough a ])lock or pulley and onto a line that inns fore and aft on your boat from a given ])oint .‘diead of your ])oat to the point forward of tlie stern, and at- tacli a line to that and take to a windlass and pull u]) by it. Sometimes they do away with the side line and ])nsh over with jioles. (Ahst., p. 1029.) The tow-boats never have to warp. When the river gets down to that stage the tow-boats quit. (Ahst., ]). 1029.) They seldom have to quit on the Kentucky, hut the time on the Ohio is regular. They usually wait about Pittsburg or the points close below there. They arrange their work so that they can get their boats all hack to that jioint be- fore the low water comes. Occasionally they will get caught below and lay up there for several weeks until the water comes again. Sometimes it is months. They nse a few of the gasoline boats for tow-boats, towing barges around Aladison, Indiana. They carry wheat and cedar and locust posts and use a gasoline boat to tow the barge. (Al)st., p. 1029.) As we write, the Chicago Dailg Neirs for Se])tember 21, 1908, pul)lishes the following dis])atch showing the low water of the Ohio:* Again the (diicago Daily News for Odober 1, 1908, contains the following Joseph E. TIcCTh.louoii (Ahst., ]). 1170) : Iiesidence, St. Louis; steamboat i)ilot and master 40 years. 1 commenced to learn the river in 1802, serving an a])pren- *(By The Associated Press.) “Gallipolis, O.. Sept. 21. — To-day marks the fortieth day without rain in this section. iMnch suffering' and loss has been caused tliereby. Farmers are driving stock five and six miles in some sections for water. Many schools in West Virginia districts have closed and oil operations have had to cease in some localities owing to the water famine. The Ohio river is the lowest on record above here, and in many places' teams arc fording, there being only eight inches of ivater in the channel. The ferry boat Champion has stranded on the bar at Cheshire.” t(Ry The Associated Press.) “Cincinnati, O., Oct. 1. — For the first time in twelve years not one of the 232 government lights on the Ohio river between Pittsburg and Cincinnati will he lighted to-night. The low stage of the river that caused a complete cessation of navigation between Pittsburg and Cincinnati led to the order. At present there are only three light draught boats’ running 1)etween Cincinnati and Louis- ville.” ti('(‘sliii) IVoni that time until 18()5, got my I'lceiise from Ciu- ('imiati to xMompliis on the xM i.ssissip})i J^iver, and afterwards learned the river from St. Louis to New Orleans and com- menced ])iloting there in 18()7. I learned the Cumberland Kivei* just after the war, 18():^ or 18()d; 1 am a ])ilot from Huntington, West Virginia to New Orleans, and from St. Louis to New Orleans, and from Nashville on the Cumber- land to its mouth. The most rapid water I ever navigated was the Falls of the Oliio and Harbor Shoals on the Cumber- land. (Abst., y). 1176.) The slo])e of the Ohio at the Ohio l\ay)ids is 28 feet from the bead to the foot of the fall in 2 miles, 14 feet per mile. (Abst., p. 1177.) The Harbor Shoals in the Cumberland have a fall of over 8 feet in a mile and a little over. In low water they used to warp over it but the Government placed a lock and dam. There are locks and dams on the Falls of the Ohio, y)ut there by the Government. Wherever there are shoals or rayiids in the rivers I have been on, the Govern- ment is imy:)roving them. (Abst., p. 1177.) With all the water that a boat needs, I don’t think it could be navigated over a sloyie of over 4 or 5 feet to the mile. (Abst., yi. 1177.) I ran a gasoline boat that carried Mr. McCormick of the Tribune to Memphis — himself and his wife and a party of friends — a little gasoline boat, a year ago this spring. I have seen a great many of those boats in com- mercial matters that were only able to carry about 10 tons; the river is full of them at St. Louis, bnt I neverHiad any con- nection with them. They are pleasure boats. A boat 50 or 00 feet long, 12 feet wide and carrying 10 tons, could be navigated on 6 or 7 inches of water. (Abst., yo. 1178.) Mlf record as a navigator and pilot, if I do say it myself, T can y3rove it, there are few equals ami none my superiors. (Abst., y). 1179.) (A wntness for the defendant.) I should say navigable in shoal water would not be over 44 to 5 mile current (Abst., p. 1182). Being shown Executive Document 264, list of boats on yoage 119 (Abst., y). 1179), the witness says: I recognize several boats named there. The dey^th stated there (e. g. 3 ft. 8 inches) for the O’Neill is her dey^tli emyjty. (Abst., y). 1179.) I will take the boat that I have y^iloted for a good many years myself, the Alex Swift. She is a tow boat. The depth given there is 5 feet 7. She never drew that in her life. She would not draw 3 feet. She did not carry freight; she was a tow-boat. (Abst., p. 1179.) The depths given for these boats are their depths em])ty. IVhen they speak of the dey^th of the hold of the boat they do not sy^eak of what she drrfws forward or aft, hut they sy^eak of the shallowest yhace in her. If her liiill is just six r(‘(‘l ('l(‘nr tluui tlial iiiciins tlie sli;i!l()\v(‘sl plfu*(; in luM-. ( Abst., j). 1 171).) Q. Does it not mean, when rererrir.i*' to the depth, the depth to whieh yonr boat may be sunk in the water if it is loaded, witliont flooding’ the boat? A. Yon ean-Joad it to that deptli at one i)lace (Abst., p. 1171)). Ill referring to the deptli it means the extent to which yon can put tlie slial lowest part of yonr boat down into the water, loaded, all she will carry in that particular place. Q. 1 am talking about this table and these lioats; it does mean, when the boat is loaded it will take in that part its depth mentioned here; isn’t that true? A. I guess that would be true in regard to that book, with regard to that whole table of boats. That is what I mean; yes, sir. (Abst., p. 1179.) Isaac N. Mason (Abst., p. 1217) : 78 years old; residence, St. Louis; steamboating since 1846. I began as second clerk on the steamer Consul (Abst., p. 1217) ; was freight agent on the Northern Line for seven years; then I got into politics as marshal, sheritf and city auditor. C ross-Exa in i n a ti o n . I saw the Des Plaines Liver once hve weeks ago and again to-day, this morning. It is now 12 minutes after 11. I ar- rived in Joliet this morning from St. Louis and took a two- horse rig and drove down to the mouth of the stream (16 miles), then drove over to Minooka; we had a drive of 25 to 30 miles by team and we took the train for Chicago at a place about 50 miles out. (Abst., p. 1218.) 1 got into Chicago before ten o’clock. (The witness took a carriage ride of 30 miles and a railroad ride of 50 miles between haff i)ast six (])age 2983, where de- fendant’s counsel corrects him to say half ]^ast five A. M.) and 10 A. ]\f., besides visiting the river for the ])urpose of tes- tifying about it as an expert.) When 1 was first and second clerk T had nothing to do with navigating the boat (Abst., ]). 1219) ; 1 used to sell tickets and collect the money (uL). My work from Pittsburg to 8t. Louis was as ca])tain and clerk and handling of freight. I used to ])ilot for exercise (Abst., ]). 1219). I never had a ])ilot’s license {id.). As general freight agent of the Northern Line I had an office on the wharf boat where the l)oats landed. I liarl notliing to do with navigating the boats. That lasted until 1874. Then 1 was city and county marshal and slierjff (Abst., ]). 1219); then 1 was city auditor. That takes us up to 1883 (Abst., p. 1219). Then I v/as President of the Anchor Line for ten years, but I was not engaged in any active piloting of boats; it was the Imsiness end I had charge of. Then I was (‘kn'ted president of mining e()mj)anies. (Ahst., p. 1219.) It is lair to say that 1 have had ])raeti(!ally no exj)ei‘ienee in navigating a boat. I have liad ex])erienee as a niastei-. (Al)st., j). 1219.) I stood wat('h on one trip in 18()0 (joining up tlie Mississippi to (Ineinnati, as pilot. I have no doubt, fui'ther than that 1 stood a wateli as an engiiieer on the ])oat, and got to be a sort of an engineer {id.). 1 lie bhills ot the Ohio are aliout 20 feet in low water in less than two miles. (xVbst., ]). 1219.) The greatest slope I have ])assed over in a boat is the Falls of the Ohio Kiver at Louis- ville, whieli are about 20 feet in less tlian two miles. The boats ])assed up over them only in liigli water. (Abst., p. 1220.) The euri'ent in high water would average 0 to 8 miles an hour. At higli water the falls was covered so you couldn’t observe the falls at all (id.). I know of rivers that are navigated where they don’t have locks and dams somewhere along the river, yes, sir; the Cum- berland, the Tennessee and the AVabash. We have no locks and dams in those rivers, not in tlie Cumberland and Tennes- see. Also the Allegheny, there are no locks and dams in the Allegheny (Abst., p. 1220); my memory ain’t clear about the AA'abash. T say there are no locks and dams on either the Cumberland or the Tennessee. (Abst., p. 1220.) They have Imilt wing-dams, but not regular dams across the river, and the Tennessee and tlie Cumberland Eiver are both liadly hampered with bridges. A wing dam is to narrow the stream and im])rove the depth of the channel. (Abst., p. 1220.) At the Falls of Oliio in high water the falls is obliterated so you can’t see any fall in the river. (Abst., p. 1221.) AIinor Trtbi'taetes of the Misstssippt. AYm. R. Tibbals (Abst., p. 624) : Home, Dubuque, since 1857; age 76; navigator of Missis- sippi and tributaries since 1854. Licensed as pilot in 1855. I was U. S. Supervising Inspector of steam vessels for the 5th Inspection District for four years, 1895-1899. It covered the Mississippi and its tributaries from Keokuk, Iowa, to St. Paul, Minnesota, and the part from Lake Superior that bordered onto MTsconsin (Abst., p. 624). It included the Iowa, the Wis- consin, Chippewa and St. Croix. In 1855 the water in the Mississippi got very low, down to about 26 or 27 inches in the 20 miles between Lake St. Croix and St. Paul. AVe then had steamboats on the Mississippi, some of them drawing 12 inches unloaded and that would carry 80 tons, and draw loaded from 2 to 24 feet. They would be 120 feet long and 20 feet beam. The Enterprise drew 10 inches or less unloaded and 28 to 20 inches when loaded and cariled I 577 75 tons. (Abst., }). (>55.) Sev(3rnl boats used to tuii u[) the Iowa Iliver from New Boston and bring out freight. They drew fi-om inches to 18 or 20. There were 2 boats towing barges, 2 barges to each boat. Their loads consisted of sacks of corn — 1,000 sacks on each barge and 1,000 on the boat. The boat drew 31 inches of water and the barges 2 feet. I have steamboated on the Mississippi on 34 inches of water. (Abst., p. 036.) The Missouei Eivek. Lymah E. Cooley. Engineer. In 1878 I entered the service of the United States upon the inpDrovement of western rivers, under the engineer corps of the U. S. Army, and continued in that service until the fall of 1884, and during that time was resident engineer at Ne- braska City, Nebraska, on the improvement of the Missouri Kiver, at St. Charles, Missouri, and also upon the improve- ment of the Missouri Eiver; and for two years was general assistant in charge of all the works upon the Missouri Eiver from Yankton to the mouth, some thirteen in number. My experience in' that period covers also surveys of the Mississippi Eiver between Cairo and Memphis, and surveys upon the Missouri Eiver and the reduction of physical data upon the Missouri, Mississippi and other western rivers. In fact, I had the supervision of much of that work. Our work consisted in the improvement of the river at the various points along the Missouri Eiver, and we performed the work by means of our own — we furnished bur own trans- portation. We did not have the use of steamboats. (Abst., p. 794.) Nebraska City is about fifty miles south of Omaha and about ten miles north of the State line between Iowa and Missouri, in the State of Nebraska. The work was primarily for the maintenance and improvement of the navigation of the Missouri Eiver, and related to the maintenance of banks and the regulation of the stream. We also made extensive surveys and physical observations for determining the change in the river bed, the volume of the stream, and kept records of the stages of water. In the course of that work I had the duty of testing and making use of the navigation of the Missouri Eiver in the reach in the vicinity of Nebraska City. For the first year of our work at that point we performed our transportation without the aid of steamboats and handled stone over a considerable length of river. \\\i Iwid (hit boats wliicJi we eonstriieted for the purpose, iliat wei'e al)out 1() feet wide and about two and a half to three feed deep, and (iO or 70 feet long-, carrying 40 to 60 tons, and we maneuvered them or propelled them ])y means of sails, sweeps (a long oar o[)erated by a num})er of men), and by coi-delling along the river bank. The process of cordelling that we used is that by which a number of men will ])ull the boat up, walking along the river bank, by means of a line attached to the bow of the boat. ( Abst., p. 7iM.) The second year we had the use of a small steamboat which drew 20 inches to two feet and a half of water, and about 13 or 14 feet wide, and 56 feet long, and with that we were able to tow two of these barges up stream loaded, and did during that season tow most of our brush from a point several miles down the river up to the site of our work. We had currents generally in the Missouri Eiver of five to seven miles per hour, and operated this boat in the teeth of such currents throughout the high water season of 1879, and we had opposite our work a current which averaged through- out the flood, eight miles per hour. I performed and saw navigation performed against that current during that period. There were a number of boats went up the river that season, and I remember measuring the current at Wyoming Bluff, and ascertaining the actual meas- ured velocity of twelve miles per hour, the mean velocity for the whole cross-section. We measured that cross-section in boats, and boats passed up the river during that flood. ^‘The Nebraska City reach, as we used it, was a reach of river extending up stream about 16 to 18 miles, to what we call the Platsmouth reach, and consisted of a succession of bends, with good depth of water, and intermediate crossings between the bends u])on which there were shallow depths of water, and one particular reach known as Copeland’s Bend, in high water was spread out to one and a half miles, and divided into a number of channels, in which the water was very shallow and variable in depth during the low water sea- son. (Abst., pp. 795-6.) The usual depth in lovr water was two and a half to three feet on the crossings, but at times we had depths of 15 to 20 inches upon the bars of Copeland bend. The beuds of the Missouri Biver are usually about three or four miles long wuth an intermediate crossing of a mile or more to the next bend. The Missouri Biver is quite un- stable, and these bends in high water are cutting the banks more or less continuously, and dumping their loads on the crossings, which makes a very variable channel, one chang- 579 ill (lo})lli and lixaiiion, so that llui [lilols in riavi^ 2 ;atin^ the riven* haw to searedi out a new eliannel every trip. Tlie iMissouri KMver is a very unstable river, in fact tlie whole river is unstable, (diaracteristically so among American rivers, consisting of light alluvium and sands lirought down from the upper waterslieds and easily eroded. In low water it was from 500 feet to a mile wide in some of the very thin places on Copeland’s bend. Tn higli water it occupied the full width between the banks, usually a quar- ter of a mile to, in extreme cases, a mile and a half, as I have stated, and overflowed the bottom lands to a great depth. (Abst., p. 795.) Generally in the narrow places the river was deep, and the current continuous from shore to shore exce]h on the convex side, where there was some shallower or stationary water. Probably three quarters of the width would be occu- pied by a rapid current. And where it spread out to a mile and a half wide the current would be very slack, at certain stages of water, but the bars filled up from the cuttings in the bend, the erosion, these crossings or places were dumps, as it were, and at times the current would become very swift. In low water these narrow channels were sometimes very narrow, only 100 feet to 100 yards in width. The bars are located always with definite reference to the bends. They lie between, but in their characteristics are un- stable, shifting both in elevation and in location. In low water the navigation of such places becomes quite difficult. (Abst., p. 796.) 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. In some of these bed crossings the channel would pass from one side of tlie 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 tlireading 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 s])ars for the purpose of holding it in position until it could work through. I was at Nebraska City doing this work for two yeai's. There were a number of boats ])assed up the Mis- souri River every season in the up ilvei* and Port Benton trade from St. Louis. Usually made two tri])S from the opening of the season u]) to August, when the water began to get low, and some of those boats were very large boats, capalfle of carrying a tliousand tons of freiglit. (Abst., pp. 796-7.) They made two round trips to Fort Benton, a distance of about 2, -too miles from St. Louis. They would carry a thou- sand tons of freight on four feet of water. Tliere were four ('haracteristic boats that were in the Missouri trade at the time I was on the river; the Montana, Dakota, tlie Wyoming and the Idaho, wliicli 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 hve and a half feet, and they would run on 12 to 14 inch light and load down to four feet, and thus loaded would carry about a thousand tons of freight. There were numbers of smaller boats which passed up and down the river while I was at Nebraska City; a characteristic size l)eing from 28 to 32 feet wide, 150 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 capal)le 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 larger boats usually went out of commission in August. They had 200 to 300 tons carrying capacity on two and a half feet of water. AVe had a survey party which was making a complete sur- vey of the Missouri River, whose trips extended up to the three forks, above Port 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 conditions in the extreme upper Missouri. (Abst., p. 797.) In the upper Missouri, above Carrol, or at the mouth of the Milk River, some 250 miles from Fort Benton, the stream is a stream with a fixed stream bed, a fixed regimen, com- ]iaratively 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 steamboats 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 boat, fixed on the bow of the boat. This would be going up stream; down stream they would run with the current and their own ordinary power. I was located at St. Charles, which is another part of the ^tissouri River for two years. T 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 tow- boat, and had currents in high water of five miles per hour, io six niik's por hour, and at Kort I?illow eddy, wliieh \v(i used to I'uu, we souietiiues sti'uck curi’erds of* twelve miles per hour. I do not think \ have ever seen au ei^iit mile eurrent in tlie .Mississippi Iviver i)roper below St. l^ouis, but in the Missouri River it was, except in connection with the Fort Jdllow loca- tion. I have also examined some of the tril)utaries of the ^Missouri River, the minor tributaries, among which was the Oasconade River, which had. 12 to 18 inches of water, and upon which we spent money in improvements. 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. (Abst., p. 798.) It could actually run on 12 inches, and was actually em- ployed on 12 inches in moving out rafts and ties on fiat boats, and on rafts bound together in the river. The Gasconade River comes into the Missouri River at Herman, a few miles below Jefferson City, and is a tributary from the south. It varies greatly in width, being 150 feet wide as I .iudge it at the mouth. I did not go up the river itself. (Abst., ]>. 799.) 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 tliere was of a similar character to that performed at Nebraska City, the work of holding the river hank and training the river channel, and in the intervals making measurements of the flow and of the movement of the bottom of the stream, and of keeping the records. (Abst., p. 800.) J. AY. WOERMANN : In June, 1890, I re-entered the service of the United States in connection with the survey of the Missouri River, 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 River, above Fort Benton. On the Upper River I had charge of a level party, from the head waters at Gallatin, where the Madison and the Jefferson and the Gallatin unite to form the Missouri down to Fort Benton, a distance of about 250 miles. 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 l)oats altogether and use wagons from that point down to Fort l>entoii. That was about 20 miles. We had to use a rope to let us down over most of the rapids. (Abst., pp. 1428-9.) Thomas T. Johnston, For defense: In Se])tember, 1879, 1 was assigned to a survey of the Gas- eonade River in Missouri, which work engaged my attention until 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 Gasconade River, and was assigned from time to time to miscellaneous duties in connection with the study of the physical characteristics of the western rivers. In the summer of 1880 I was assigned to the charge of making a survey of the Missouri River in the vicinity of Yankton, Dakota, and of Running Water, Dakota, or Nio- brara, I think it is called. In the fall of 1880 I was assigned to the river improve- ment work on' the Gasconade River in Missouri, of which I had charge of making the survey the previous year, and that engaged my attention until December of 1880. On returning from the Gasconade River to the St. Louis office of the engineer corps, I was assigned through the first nine months of 1881 to work in connection with the study of physical characteristics of the western rivers, incidentally in that spring making an inspection of the Missouri River 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 im- provement wmrks on the Gasconade River, which engaged my attention until the last of the year. (Ab^t., p. 1368.) 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 connec- tion with improvements on the Missouri River at St. Joseph, Missouri. (Abst., p. 1369.) J. AY. Rambo (Abst., p. 1160) : I have been at the Rock Island Rapids 45 years. Age 64. Got first papers in 1864. Before that I was working as a com- mon raftsman on the river. I was a common laboring man — pulling what we used to call — pulling it over on a floating raft. (Abst., p. 1160.) I do not think it possible to navigate a river with a 16 feet fall to the mile with anythfng we have got in our steamboat line in this country. I mean the Mississi])]n River and its tributnries. 1 have run boats that r)8:j have been vauaUui Iheve on ihc Fox lliver in Wisconsin bat theif could not (jo np over oar rapids. I huvci rurj boats oil the JMississi])])] that eoine from the Fox Iliver down th(o-e. Tliey always had to have a pilot to take them over there. They eon Id not go alone. (Al)st., j). 11()3.) Thomas F. Boyle (Abst., p. 1179) : Home St. Louis. 1 think 1 am about 60, I ain’t positive. Business, steamboat pilot. Got pilot license in 1871 ; have had master’s license for 25 years I believe — covering the Mississippi from Grafton to New Orleans; the Ohio to Pa- ducah ; the Oachita and its tributaries and the Arkansas River to Little Rock. I piloted the Arkansas for 10 years during the cotton season. Then we took the boat off; busi- ness slacked up. They built a railroad up tliere and they took the boat out. Going up from New Orleans 200 miles you come to the Red River — you go up 65 or 70 miles and come to the Black River; and 25 or 30 miles up that you come to the mouth of the Ouschita. That empties into the Black. I piloted the biggest boat that ever left St. Louis — the Grand Republic; and the very smallest boat — and the middle class. (*Abst., p. 1179.) The Arkansas is the toughest river on earth and the worst of them all. The lightest draft I ])iloted doesn’t draw over 18 inches. 1 know the dohn H. IlaiRin. She is the lightest boat built and doesn’t draw over 12 inches. I have not done anv war})ing Imt have seen it done. (Abst., p. 1180.) The Des Plaines could be used for pur})oses of useful com- merce if you had money enough, but I tliink it would break the State of Illinois. In its ])i‘esent condition 1 do not think it is navigal)le. (Trans., -1082.) 1 meant to say that there is nothing impossible. Aroney can do almost anything in the sha])e of labor in a river, but it would take time to do it. I never was out on falls or any of those ])laces and 1 went on the Ohio only' to Paducah. I (‘an’t tell what the slope per mile is in the AIississi])])i or any stream. I don’t think 1 have navigated any stream where the fall ])er mile is more tlian one foot. I liave liad no ex})erience on a river witli a fall of 6 feet to tlie mile or 10 feet to the mile. (Trans., ])p. 4082-7.) I think the Arkansas is ])retty narrow. Tlien it is full of snags. It is the worst river on earth. In some ])laces it is so narrow when in lov/ water, you get agi'ound you liave got to get a yawl down, put a line in a yawl and go aliead and tow it. (Trans., p. 4088 ) Some ])laces it is a cjuarter of a mile wide and some an eiglitli. In low water the channel wliere you navigate would ho about 40 toot. TJiere is times when the JIarbin eaimot run there. We seen times when she couldn’t go thei-e tor want ot water. (Abst., ]). 1181.) Down below St. Louis the euiTont ran at tlie rate of 7 miles an hour. (Abst., p. 1181.) I think a boat can navigate a greater current de- pending on the ])ower of the boat {icL). My boat can go against a lO-mile current easy enough. (Abst., j). 1182.) Nature of the Navigation. ''The conditions under which steamboats operate on the Missouri Eiver in the transportation of freight and pas- sengers are so totally different from those on eastern rivers that their design in all senses has to conform to the necessi- ties of the case. Persons who have never traveled on the western rivers laugh at the idea of a great improvement in navigation being attained by making a free channel of 3 feet or 30 inches depth. The prominent feature of the river with which this report is concerned is its shallowness, and hence it is the style of hull which is of main importance. The boat must be of very light draught and hence their great length and width in pro- ])ortion to their depth. The style of the hull varies in shape from the flat bottom scow model to one possessing some ele- gance of proportion. But in general the sides between the ends of the forward and stern shears and the bottom of the hull are true planes, at right -angles to each other. A cross section of the hull near amidships will generally be a rect- angle. It is necessary to make the bottom a horizontal plane from the fact that in shallow water the boat is constantly touching bottom, and often lies aground for hours at a time, in which case a large part of the boat’s weight is supported by the river bed. Hulls designed to carry are built with reference chieflv to buovancv or total displacement.” (Abst., p. 1192.) United States Engineer’s Eeport, 1878, Part I, page 696, (Abst., p. 1192-3). "A very full and complete description of the Missouri Eiver is given in Howell’s Eeport, and it is therefore unnec- essary to enter into any minute details. T will simply state that the river between Benton and Carroll may be consid- ered as having a fixed regimen, and the work necessary for its improvement is simply in its character and will be per- manent in its effects. There is plenty of water, the low water discharge as Dauphin’s Eapids computed from current obser- vations made last summer, being 11,062 cubic feet per second. The surface rate of current for low water is 3.2 miles per 58 .") hour, and I'oi* a nuMlium hii>'li sla^(i it is 4.‘> inil(*s [)(;r hour. IMio avoi'ago fall Tor u distaiute oi* .‘>,200 1‘eet is at the rato of 8.9 J'eof, and for 1,000 feet of that distance the fall is at tiie rate of if. 42 feet per mile. ‘‘Before making any suggestion as to the work whicli should be done in this portion of the river, I shall refer to the lower reach of the stream or that between Carroll and the mouth of the Yellowstone. “The obstructions to the navigation of this latter portion consists of snags and shifting sand bars. The snags, how- ever, are not of frequent occurrence, and as the boats never run at night save when there is a bright moon, and as they run entirely by the appearance of the water, I do not consider the snags of sufficient importance to call for .au expenditure of time and money for their removal. I understand too that the ice each year removes a great portion of them and that their places are supplied by new ones during each flood. I have learned of no boat which has ever been injured by snags in the Missouri above the mouth of the Yellowstone. “Sketches 9 and 10, the formeiqof Bird^s (Atlas, p. 1193) Island, about fifteen miles below Carroll, and the latter of Spread Eagle Bar, will convey a slight idea of the nature of the obstructions due to shifting sand bars. While these bars cause delays still they are not impassable and the boats can ‘get over’ by ‘spurring’ or ‘laying lines.’ ” Then there follows a list of 24 rapids and obstructions with suggestions for their improvements, the description of which in- volves a great deal of repetition, and T will offer the whole busi- ness in down to the mark, to No. 24 on page 698. (Abst., pp. 1193- 119-1.) “Shonkin Bar (Sketch No. 1) — Two bars are found at this place, the mpper one diy and the lower one submerged at all times. Erom the upper bar a gravel reef makes out obliquely across the stream to the ])oi]it. At low water stage there are only twenty inches of depth on the reef. In the sketch the full line indicates the high water channel and the broken one the low water channel. To impi'ove this place it is proposed to build out from the upper bar on the reef a wing dam so as to confine the water to a narrower channel and thus obtain an increased depth on the reef. The term reef is here used arbitrarily (and will be so used throughout) to indicate a sub- merged gravel bar as distinguished from (Abst., p ) the larger and more sandy bars which during low water assume almost the ])roportion 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 (n-()()k(3d (‘liannel. The two lieavy dots indi- (‘ate a snag- and ro('ks wliieli slionld l)e removed. Tlie left ('lmt(‘ shoidd ])e closed, ‘'Ackley Bars — The rivei* is here divided into two chutes by hai's, and thei'e 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. Bluff Rapids (Sketch No. 8) — The river is here di- vided into two cliutes by Gould Island, and there are a few rocks near the bead of the channel or right chute. The left cliute 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 re- moval of some of the rocks. “(). 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; 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’ being to the right. Boulders lie across the channel at the head of the islands, running obliauely 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 suffi- cient depth of water, but the channel is filled with boulders. A free channel should be made by the removal of some of the boulders. “12. Holmes’s Rapids (Sketch No. 6) — These rapids com- mencing above Birch Creek, are over a mile in length. The 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 the boulders. A clear channel should be made by removing some of thein. (Abst., p. 1194.) “18. Lone Rock Rapids — Here the river is divided into two chutes by a very long, narrow l)ar which runs up close to the 587 1 ‘iglit bank, leaving- a narrow but de(‘[) eliannei, vvbieb, how- ever, has isitnated in it a large i-oek some .12 feet in diameter, and wJiic*b (‘annot be passed in low water. Tlie i-emoval of this roek would make a ehaniiel a good and safe one. “14. Ilig llonlder — This boulder ])i-ojeets about two feet above low water, and lias damaged several lioats. It should be removed. “15. Gallatin Kapids — 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 steamboats 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 fetv 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. ‘M8. Magpie Rapids — The removal of rocks is all that is required here. ^‘19. Bird’s Rapids — These ra])ids 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 low water and should be widened by the removal of some of the rocks. “20. Sturgeon Islaud — There is ])lenty of water in the channel, but at the head of the island there is a boat ^suck’ into the left chute and the boats are someiimes drawn over onto the bar. This can l)e prevented by closing the left chute with a dam. “21. Snake Point — The lateral ('hute here should be closed by a dam. “22. Cow Island — The dam closing the middle chute and marked on the map ^Proi)osed dam,’ should be built and the upper one should be finished. There should also be a short spur at the foot of the islands. (Ahst., p. 1195.) “23. Grand Islands (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 de])th at low water stage. All the lateral chutes should be (hosed by dams, and it will probably he 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 he closed by dams.” (Ahst., pp. 1195-6.) r)cS8 On page 1)99 is tlie report of Air. K^teveiis, the assistant en- gineer : ‘‘Dauphin’s liapids 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 i)laces 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 which the others gather and (Abst., p ) take their l)laces in the most compact form. Again it is of coarse gravel, studded Avith boulders buried deep, often reaching 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 chan- nel 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 AAuthout 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 af Dauphin’s (fhis being the worst place on the river), nearly all of next year’s freight could liaAm been carried through to Benton by river. As it now is, it will be necessary to wait for low water for the com- pletion of the work, and freight 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 chute. About two-thirds of the water passes down the main channel to the left. From the conformation of the river and its banks the main channel should be along the right bank. This channel is Yery narrow, and in places rocky and swift. The main chan- nel to the left is obsfructed by two coarse grawel 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 current is 2.7 miles per hour. The improAmments proposed were to remoA^e the rocks in the main channel and to close the two island chutes hx low water dams. Dams to be of boulders.” (Abst., p. 1196.) 580 The Allegheny Kiver. Captain Mason for the defense : (j). l)o yon know any river that is navigated, Captain, where they have not locks and dams somewhere along the river? A. Yes, sir; the Cumberland and Tennessee Kivers, and the Wabash. Q. You say they have no locks and dams in those rivers? A. No, sir; not in the Cumberland and Tennessee, also the Allegheny Kiver. Q. The Allegheny? A. Yes, sir; no locks and dams on the Allegheny. Q. I am not sure that I rightly understood you, did you say there were or were not locks and dams in the Allegheny ? A. There is none on the Allegheny Eiver. Q. None on the Allegheny? A. No, sir. ****** Q. And what was the other river, — the Allegheny Eiver, — you are sure that therfe is no locks or dams on the Allegheny? A. There is none. Q. How long since you have been up that river? A. I never was up it, — only to cross it at Pittsburg. Q. Then your knowledge of that river is simply what you have heard in a general way, I suppose. A. Associating at Pittsburg with men who steamboated up there. That was 40 years ago. (Trans., 4229-31.) ^^Dam at Herr Island, Allegheny Eiver, Near Pittsburg, Pennsylvania, U. S. Eng’r Eep., 1895, pp. 2410-12; Abst., p. 1630. . ‘^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 com- pliance 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 necessitated a corresponding change in the estimated cost of the work. The estimated cost df the work under the ^'During the past fiscal year, the plans for this work were approved duly 10, 180-1-, and the puinpiii^ out of the cofter-dam ('ouuu(‘ue(Ml duly 7, 1804. The result is shown in the follow- ing (‘xtra('t from the projeet sul)mitted under modified y)lan of .\ugust 27, 1804. ****** ‘‘There are some important advantages resulting from thi.s type of foundation. The uneertainties of sheet piling are re])la(‘ed ])y the known (pialities of masonry, resting upon a foundation ked that is open to inspection. Tn the first design, the expensive concrete floor has keen minimized in thickness so as to produce a rupturing strain under possible conditions of navigation, and to ])revent the pumping out of tlie lock chamker while the Herr Island Ham is up. With the present design there is no rupturing strain on the floor, and the lock chamker can ke pumped out at any stage of water that the lock walls will keep out.’’ How mistaken Captain Mason was is shown ky the above Govern- ment Engineer’s report of 1895, pp. 2410-11-12 (Akst., p. 1630), and the profile and map of the Allegheny accompanying it (Akst., 1951). Said Profile is shown on opposite page. The testimony contra was simplv reckless swearing. The man leaves the train at Joliet in the morning, rides by carriage 16 miles to the dam site, then six miles to Minooka; then ky train 51 miles to Chicago, which he reaches at 10 o’clock A. M., and before noon he has proved that the Hes Plaines is not navigable; and that the Tennessee, Cumberland and Allegheny nre navigable streams without locks and dams. The facts are just the reverse. The Hes Plaines is navigable, although its navigation will ke improved ky locks and dams; and not a river was to be found in the country ky their best expert where navigation is carried on, which had not received the benefit of improvement ky locks, dams, or similar works. The Mississippi, the Missouri, the Ohio, the Tennessee, the Cum- berland, the Allegheny, the IVakash, the Columbia, the Snake, the Fox, the Illinois — all have locks and dams. lYithout them none of these streams could ke navigated continuously without the great- est difficulty and without encountering numerous obstructions; many of them impassable places where land carriages — portages, — become necessary. ' , ' '' I B- ■‘-.'MWvifi ,'' I,. "»,('■/*'' './•A vfv.jS*y^„ 'Vi'-i '■ * f ■/ V - .< A . *' ^111’: San(jam()n,- LiNCOI.N and NAVKiATION. 51): ■ > TIk' Saiii>-am()ii is tliiis described in Pe(*k’s (j|azetle(‘i- of Illinois n lcS:U: '' Saiujiunon Rivet', a prominent l)raneli of the Illinois. It I'ises in (diani})aign Ck)nnty, in the most elevated region of that portion of the State, and near the liead waters of the two Vermilions and tlie Kaskaskia liivers. It waters Sanga- mon and i\Iaeon Comities, and parts of Tazewell, Me Lean. Montgomery, Shelby, and Champaign Counties. Its general eonrse is northwesterly. Besides a number of smaller streams, notieed in their al])ha])etical order as Clary’s, Eoek, IBehland, Prairie, Spring, Lick, Sugar, Horse, and Brush Creeks, on the south side, and Crane, Cantrill’s Fancy, Wolf Creeks and other streams on the north side its three principal heads are Salt Creek, North fork, and South fork. “Salt Creek rises in McLean County, twenty Two north, ranges four and five east, and runs a westerly course through the northwest corner of Macon into Sangamon County, where, after receiving Kickapoo and Sugar Creeks, and several smaller ones, it enters the Sangamon Kiver in the northwest })art of townshi]! nineteen north, range six west. Its tvx> princii)al heads are called the North fork of Salt Creek, and Lake fork of Salt Creek. “North fork, which may l)e regarded as the main stream, rises in (diam])aign C’ounty, near the heads of the Vermilion Itiver of the Illinois, the Vermilion oT the M^abash, and the Kaskaskia in twenty-four north, seven east, in a small lake. It rims southwesterly through Macon, then south, then west into Sangamon (’ounty, where it receives South fork and Salt Creek. “The South fork of Sangamon rises by several braiuhies, in the northwestern ])art of Shelby, and the northeastei’ii })art of Montgomery C/Ounties, runs a southeaster]! course, nnd forms a junction with the Nortli fork in sixteen north, four west, seven miles east from Springfield. “Sangamon Biver and its branches flow thinugh one of the richest and most delightful portions of the Great AVest. (V)m])laints are made of the extent of the ])rairies, l)ut this offers no serious inconvenience for the present. These l)rairies for many years will afford range foi* thousands of cattle- The general as])ect of the country on the Sangamon is level, yet it is sufficiently undulating to permit tlie watei* to escape to the creeks. It will soon constitute one of the richest agricultural districts in the United States, the soil being of such a nature that immense cro])s can l)e raised with little agricultural labor. “The Sangamon is navigal)Ie for steamboats of the smaller ('hiss to tli(‘ jiuictioii ()j‘ tli(‘ North niid South forks, and, with a litll(‘ labor in (-leai'ing out tlie diift wood, (aich iJi'incipal fork may ho navigated with Hat boats for a long distarn^o. In tho spring of iSdl! a stoainhoat of tho lai'gor class arrived within tiv(‘ miles of Springti(hd, and dis('liarged its eargo. At a small ex])ense in cleai'ing out the logs, and ('utting the stooping trees, this river would he navigal)le for steaml)oats half the year. From a ])end neai* the month of (dary’s Creek, titty miles above the moutli of tlie Sangamon, the waters find a ('liannel through the low grounds and sloughs to the vicinity of fjoardstown, so tliat keel boats ('an })ass in this dii-ection into the Sangamon. It is thought that with small ex])ense a communication might he opened in this direction. Some in- cipient measures wei'e adopted by the legislature for improv- ing tlie navigation of tliis nol)le river, but nothing effectual has l)een done. “When tlie resources of the State liecome more ample there is no doubt but this important outlet for its agricultural wealth will receive a share of attention.” (fleck’s Gazetteer of Illinois, pp. 326-328.) On page 258 the same work states of the Illinois that “It curves to the south and then to the southwest receiving a number of tributaries, the largest of which are the Spoon and Sangamon Rivers.” The Sangamon was declared a navigable stream by A.ct approved December 26, 1822. (L. 1822-3, p. 81.) The Sangamon County Commissioners were authorized to ex- ])end certain funds in improving the navigation of the river by removing obstructions therefrom, by Act -approved March I, 1833. (L. 1833, p. 126.) In 1835 this court, in ClarJc v. Lahe, 1 Scam., 329, enforced this act. The opinion is as follows: “Lockwood, Justice, delivered the o])mioii of the Court: “This was an action of trespass on the case, brought by Clark against Lake, in the Sangamon Circuit Court. The ])laintiff declared against the defendant for erecting a dam across the Sangamon River , — which stream had been declared a public highway by a statute of this State, — whereby the ])laintiff had been obstructed in the navigation tliereof, while })roceeding down the river with a boat load of corn, and there- l)y lost his said boat and contents. The defendant ])leaded not guilty. On the trial of the cause, the ])liiintiff gave evi- dence conducing to ]n'ove that he descended said river with a YX) boai load of ('orn, with a siinic'Kail tide of \vai(a- to d(‘S(‘(‘iid the I'ivor if it had not boon obstriH'tod by artiticial objcM'ls, and intondinj>’ to go to Nat('lioz or N(‘w Orh^ans. ddial wlnni the boat arrived witLdn tliree-foiirtlis of a mile of defendant’s inill-dam, he stopped his boat. That in eonsecpHnua* of tin* said dam’s impeding the navigation of tlie said rivei-, tlie boat could not ])roeeed on the tri]), and, in eonse(inenee of being so stopi)ed, the corn was lost. That the corn was worth cents ])er bushel where it was stop])ed on tlie river, and worth seventy-five cents at the lower markets. After the fore- going evidence was given, the defendant asked a witness, ‘Wliether there was not another mill-dam across said river, lielow the defendant’s mill-dam, erected in violation of said law, which was higher than defendant’s mill-dam; and whether said lower dam would not have prevented plaintiff from pro- ceeding to the low^er markets of Natchez or New Orleans, as it was late in the season, and no other tide might take place in the river during that season, even if the plaintiff could have gone over defendant’s mill-dam,’ — to which the plaintiff’s counsel objected; but the Court overruled the objection, and permitted the question to l)e asked, and the defendant to prove that fact to the jury by said witness. To which opinion and judgment of the Court, the plaintiff by his counsel excepted. ‘‘The only ((uestion presented in this case, 1^;^ whether the Circuit Court erred in permitting this testimony to be given to the jury. “It appears from the record that he verdict was for the defendant, which ])robably shows the effect that this testi- mony was designed to have. This Court cannot conceive what other use could have l)een made of this testimony unless it was to urge to the jury, that if the ])laintiff could have passed the defendant’s dam, he would not have been benetited by it, as he inevitably would have been stoi)])ed l)y the dam lower down the river. This mode of reasoning, if adopted, was not more unsound in morals than in law. The law is well settled that every ])erson who erects an obstruction across a public highway, is liable for all the injuries that residt from it. It is consequently no excuse that another obstruction would have produced the same effect, for the obvious reason, that the party injured by the first ol)struction, has no cause of action* against the person who erected the second. In the })resent case, the second mill-dam had not delayed the ])laintitf ; and of course he could not have sued the person who erected it. If the plaintiff sought to recover damages for a greater amount than the value of the corn and boat, where the injury o(‘curred, by showing how much profits he had lost by the obstruction occasioned by defendant’s mill-dam, it doubtless would have been ])roper for the defendant to show, in mitigation of dam- ages, that siu'li j)rofits could never liave ])eeii realized, in con- se(iuence of the 'ini])ossi})ility of tlie boat’s making tlie lower markets, (X'casioned by obstructions in the river below de- fendant’s mill-dam. It is manifest, however, that the evidence \yas not offered in mitigation of damages, because no such limitation was proposed l)y the defendant, nor required by the Circuit C\)urt. The true rule relative to receiving or rejecting testimony, is, — Does the pro])osed testimony tend to prove the issue joined between the parties? If the testimony offered does not tend to ]n*ove tlie issue, or is calculated to' lead the jury astray, it ought to be rejected. This Court believing that such may have been tlie effect of the question asked by the defendant, are of opinion that the Circuit Court erred in not rejecting it. ‘^The judgment is therefore reversed with costs, and the cause remanded, with directions to the Circuit Court of San- gamon County to award a venire cle novo. ^ ‘ J udfjni eni rev ersed. ’ ’ Lincoln and Xavigation. Abraham Lincoln navigated the Sangamon, as is well known. In Whitney’s Life of Lincoln the following descrpition of his first trip is given : ^‘Flowing in a sinuous course, generally southwestwardly, through Champaign, Piatt, Macon, and between Christian and Sangamon Counties, for a hundred miles, then turning abruptly to the northwest for about fifty miles, then inir- suing a course due west until it finally reaches, and mingles its turbid current with that of the Illinois, is a river now known improperly as the ‘Sangamon.’ Its correct name, given by the Indians, is ‘Sangamo’ — pronounced ‘Sanga- wair ’ — and it was so called in Lincoln’s early manhood. The Hanks neighborhood is on the right bank of this river, at a point near to where its course is changed from a southwest- erly to a northwesterly one. It was in the river bottom of this stream, in this neighborhood, that Lincoln passed the first year of his manhood. “In February, 1831, one Denton Offutt, a bibulous, ‘devil- may-care’ sort of person, a combination of speculator and mountebank, drifted into this neighborhood, and casually met John Hanks, wdio had somehow achieved a local fame as a fiatboatman. Offutt proposed to Hanks to transport a flat- boat load of country produce to New Orleans. Hanks was not unwilling to go, but deferred a definite answer till he could consult Lincoln and John D. Johnston, and ascertain if they could be induced to accompany him. and thus it was that ho (‘ni(u*(Ml pi’oinptly into a businoss oii^'ai>ouioiit with OtTutt by tho tonus of wliioli OtTutt was to ))rovido a boat and (*ari>() at tho ('outiuonoo of Suii^ar (h’ook and tho south fork with tho uiaiii Saugaiuo, a fow inilos oast of tlio thou obseuro and ill-built vitlago of S})riugfiold. This boat Liuoolu, Jolin llanks, aud Joliu I). Johnston woro to navigato to Now Orloans. ^‘In thirty days henoe the flatl)oat was completed, and i-ode })roudly on the bosom of the river, moored to the mud l)anks of the Sangamon — the pioneer of all water craft in that region. ^ At a distance of thirty-seven miles as the river runs, on the 19th day of April, a mill-dam was encountered, on which the rude craft, after passing one-third of its length, stuck fast. ‘‘In the exigency thus presented, Lincoln was the directing and master mind. The forward end of the boat was tilted up, and the rear end submerged ; a smaller boat was procured, and part of the load transferred. Lincoln then bored a hole in that part of the bottom of the boat which projected over the dam, and then rolled some heavy pork barrels forward, which gave a pitch to the boat and let the water run out, after which the hole was stopped up, and, by a skillful use of poles, the vessel was got over, reloaded, and sent forward on its course. “AVhen the craft reached Beardstown, its odd appearance and wild-looking crew excited the derision of the inhabitants, who committed the undignified and inexcusable act of openly ridiculing them as they passed. The venture reached New • Orleans at last, probably as rude a craft with as awkward a crew as ever floated out of the wild forest.” (Life and Works of Al)raham Lincoln by Henry C. Whit- ney, pp. 68-9-70-1-2-3.) In Miss Tarbell’s Life the next incident is given thus: “A few days later (1831) he accepted an offer to pilot down the Sangamon and Illinois Livers, as far as Beardstown, a flat-boat bearing the family and goods of a ])ioneer bound for Texas.” (1. Tarbell, p. 61.) That happened in 1831, and the dams were then there, and were still there in 1835 when the court decided the case of Clark v. Lake, 1 Scam. The case above cited is important as showing that tho presence of such dams erected at that early day, does not deprive the stream of navigability. The reference to Lincoln leads to other important historical rm i'{‘ler(‘ii('c*s. '^rii(‘ first ])iil)Iic* address of* Ahraliain Lincoln was d(‘livered March 9, \HIV2, to the people of Sangamon ('ounty, as a candidate tor the Legislatni'e. Among other tilings he said: “March 9, 18d2 . — Address to the People oe Sangamon County. “Fellow citizens: Having liecome a candidate for tlie hon- oralile office of one of your Representatives in the next Gen- eral Assembly of this State, in accordance with an established custom and the principles of true Republicanism it becomes my duty to make known to you, the people whom I ])ropose to rejiresent, my sentiments with regard to local affairs. “Time and ex])erience have verified to a demonstration the public utility of internal improvements. That the ])oorest and most thinly populated countries would be greatly benefited by the opening of good roads, and in the clearing of navigable streams within their limits, is what no person will deny. * A meeting has been held of the citizens of Jacksonville and the adjacent country, for the ])urpose of deliberating and in- (luiring into the ex])ediency of constructing a railroad from some eligilfie point on the Illinois River, through the town of Jacksonville, in Morgan County, to the town of Springfield, in Sangamon County. This is, indeed, a very desirable object. Xo other improvement that reason will justify us in hoping for can e(]ual in utility the railroad. * * xhe prohable cost of this contemplated railroad is estimated at $290,000; the bare statement of which, in my opinion, is sufficient to justify the belief that the improvement of the Sangamon River is an object much better suited to our infant resources. “Respecting this view I think I may say, without the fear of being contradicted, that its navigation may he rendered conipletely practicable as high as the mouth of the South Fork, or probably higher, to vessels of from twenty-five to thirty tons burden, for at least one-half of all common years, and to vessels of much greater burden a part of the time. From my peculiar circumstances it is probable that for the last twelve months I have given as particular attention to the stage of the water in this river as any other person in the country. In the month of March, 1831, in company with others, I commenceM the building of a flat boat on the San- gamon, and finished and took her out in the course of the spring. Since that time I have been concerned in the mill at New Salem. These circumstances are sufficient evidence that I have not been very inattentive to the stages of the water. The time at which we crossed the mill-dam being in the last days of April, the water was lower than it had been since the breaking of winter in February, or than it was for several ^veeks al'U'r. The .|)i’ineii)al (liC(i(*ulli(‘s we (Mi('()uiil(;r(Ml in deseeiuliii^’ the river were from th(‘ driftcMl lirnl)(ir, whi(!li ohstriietioiis all know are not diriicnilt to reinovecJ. Knowing- almost preeisely the height of water at that time, 1 l)(hi(W(} J am safe in saying tliat it has as often been higher as low(m since. “From this view of tlie subject it appears that my calcula- tions with regard to the navigation of the Sangamon cannot but be founded in reason; but, wliatever may be its natural advantages, certain it is that it never can l)e practically use- ful to any great extent ivitliout being greatly improved by art. The drifted timber, as I have l)efore mentioned, is the most formidable barrier to this object. Of all parts of this river, none will require so much labor in proportion to make it navigable as the last thirty or thirty-hve miles; and going with the meanderings of the channel, when we are this dis- tance above its mouth we are only between twelve and eigh- teen miles above Beardstown in something near a straight direction; and this route is u])on such low ground as to re- tain water in many places during the season, and in all parts such as to draw two-thirds or three-fourths of the river water at all high stages. ‘‘This route is on prairie- land the whole distance, so that it a])])ears to me, by removing the turf a sufficient width, and damming u]) the old channel, the whole river in a short time would wash its way through, thereby curtailing the dis- tance and increasing the velocity of the current very consid- erably, while there would be no timber on the banks to ob- struct its navigation in future; and being nearly straight, the timber which might float in at the head would be apt to go clear through. There are also many |)laces above this where the river, in its zigzag course, forms such com])Iete ])eninsulas as to be easier to cut at the necks than to remove the obstructions from the bends, which, if done, would also lessen the distance. “What the cost of this work would l)e, T am unable to say. It is probable, however, tliat it would not be greater than is common to streams of the same length. Finally, T believe the improvement of the Sangamon Biver to be vastly im- portant and higlily desirable to the people of the countrv; and, if elected, any measure in the legislature having this for its object, which may appear judicious, will meet my a])- probation and receive my support.” (“Abraham Lincoln Fomplete Works,” Vok T, ])}). 1, 2 , 3 .) (j()() The (‘vcMil.s wJiieli iinniediately followed are thus narrated: “V'ery soon after Lineoln had distributed liis iiand-bilJs, enlhusiasin on the subject of the opening of the Sangamon 1 ‘ose to a fever. The ‘Talisman’ actually came up the river; scores of men went to Beardstown to meet her, among them Lincoln, of course, and to him was given the honor of piloting her — an honor which made him remembered by many a man who saw him that day for the first time. * * * long hurrah from Beardstown to Springfield, and foremost in the jubilation was Lincoln, tlie pilot. The ‘Talisman’ went to the point on the river nearest to Springfield, and there tied up for a week. When she went back Lincoln again had the conspicuous position of pilot. The notoriety this gave him was probably quite as valuable politically, as the forty dollars he received for his service was financially.” (I. Tarbell’s Life of Lincoln, p. 72.) Mr Lincoln’s interest in navigation was of the most practical sort and it remained with him to the end of his life. July 5, 1847, the first National Eiver and Harbor Convention that ever convened in this country was held in Chicago. Dele- gates from nineteen States were present, — among them David Dudley Field and Horace Greeley of New York. “In July, 1846, a bill for the improvement of harbors and' the navigation of rivers passed both houses of congress. President James Polk vetoed the bill August 3. Among the items in this bill were $15,000 for Buffalo harbor, $40,000 for Erie harbor, $20,000 for Cleveland harbor, $80,000 for Racine, Little Fort, Southport, Milwaukee and Chicago dredge boat. President Polk said: ‘It would seem the dictate of wisdom under such circumstances to husband our means and not waste them on comparatively unimportant objects.’ * * “At this time the following vessels navigated the lakes above the falls of Niagara: Steamboats 52, tonnage 29,500; propellers 8, tonnage 2,500; brigs 50, tonnage 11,000; schoon- ers 270, tonnage 42,000. Total boats, 380; total tonnage, 76,000. The cost of the construction of these vessels was $4,600,000. “Polk’s veto aroused the people of the north and north- west, and Monday, July 5, 1847, pursuant to a widely ad- vertised call, a convention was held in Chicago at which dele- gates from nineteen states were present. Horace Greeley was present, representing the New York Tribune. In an ar- ticle published in that paper Saturday, July 17, 1847, he said: ‘A judicious estimate makes the number present today 20,000 nuMi, of whom 10, ()()() iwv li(‘i'(‘ as mcanhcfs oT tla* (‘orivcai- iioii.’ ” (ijiiK'olii on Waterways, by W. A. Meeso, j)}). 24, 25.) All*. Jjiiieolii was a delegate to tliis convention. ‘‘In the forenoon David Dudley Field of Xew York had spoken against the right of the federal government to im- prove rivers and harbors, and Lincoln was called to answer him. ^ “The New York Semi-Weekly- Tribune have a fall account of the convention and from its report of July 17, 1847, we may learn how Lincoln at this time impressed the great editor. In his afternoon report of July 6, Mr. Greeley said: “ ‘In the afternoon Hon. Abraham Lincoln, a tall speci- men of an Illinoisan, just elected to Congress from the only whig district in the state, was called out and spoke briefly and happily in reply to Mr. Field.’ * * * “In May, 1846, Lincoln had been nominated by the whigs for congress. * * * Lincoln was elected by over 1,500 majority. * * * “Lincoln voted for the following resolution December 20, 1847: “Eesolved, That if in the judgment of congress it be neces- sary to improve the navigation of a river to expedite and render secure the movements of our army and save from delay and loss, our arms and munitions of war, congress has the power to improve such river.” (Id., pp. 26-7-8.) June 20, 1848, Mr. Lincoln spoke in Congress in committee of the whole and announced his subject thus: “I therefore state, in advance, that my object in taking the floor is to make a speech on the General Subject of Internal Improvements.” (Id., p. 29.) Of the general good from the improvement of rivers in locali- ties he said : “* * * The driving a pirate from the track of com- merce on the broad ocean and the removing a snag from its more narrow path in the Mississippi River, cannot, I think, be distinguished in principle. Each is done to save life and property, and for nothng else. The navy, then, is the most general in its benefits of all this class of objects; and yet even the navy is of some peculiar advantage to Charleston, Baltimore, Philadelphia, New York and Boston, beyond what it is to the interior towns of Illinois. “The next most general object I can think of, would be iini)i-()veineiits on the M ississi|)))i Uiver and its tributaries, ''riiey toueh tliirteen of our stales — Pennsylvania, Virginia, Kentneky, Tennessee, Mississippi, Louisiana, Arkansas, Mis- soui'i, Illinois, Indiana, Ohio, Wis('onsin and Iowa. Now, I suppos(‘ it will n.ot be denied, that these thirteen states are a little more interested in inii)i‘ovenients on that great river than are tlie remaining seventeen. Tliese instances of tlie navy and tlie Mississippi 'River sliow clearly that there is sonietliing of local advantage in tlie most general objects.” (Id., p. Tk) Of the canal he said: ‘bBut the convei'se is also true, nothing is so local as not to be of some geneial benefit. Take for instance, the Illi- nois and Micliigan Oanal. Considered apart from its effects it is ])erfectly local. livery inch of it is within the State of Illinois. That canal Avas first 0 ])ened for business last April. In a very few days we were all gratified to learn, among other things, that sugar had been carried from New Orleans, through the canal, to Buffalo in New York. This sugar took this route doubtless because it Avas cheaper than the old route. Supposing the benefit in the reduction of the cost of carriage to be shared betAveen seller and buyer, the result is that the New Orleans merchant sold his sugar a little dearer, and the ])eop!e of Buffalo sAveetened their coffee a little cheaper tlian before; a l)enefit resulting from the canal, not to Illinois Avhere tlie canal is, but to Louisiana and New York, wliere it is not. * * “iMr. Chairman, the ])resident seems to think that enough may be done in the way of im])roA"ements by means of tonnage duties, under state authority, with the consent of the general gOA^ernment. * * * How could we make any entirely new improA^ement by means of tonnage duties! Hoav make a road, a canal or clear a greatly obstructed river? The idea that we could iuA'olA^es the same absurdity of the Irish bull about the ncAv boots: H shall niver git ’em on,’ says Patrick, Hill I wear ’em a day or two, and stretch ’em a little.’ We shall never make a canal by .tonnage duties until it shall al- ready have been made awhile so the tonnage can get into it.” (Id., pp. 34, 38 and 39.) In 1848 Mr. Lincoln returned from Washington and the east by way of Niagara Falls. What follows is thus narrated in Tarbell’s Life of Lincoln, Vol. I, pp. 226-228: ‘Hn his trip westward to Springfield from Niagara there occurred an incident which started Lincoln’s mind on a new line of thought, one which all that fall divided it with pol- itics. It happened that the boat by which he made ])art of the trip stranded in shallow wat(‘r. d(‘vi('(is (auploy(‘(! io float her, interested Ijin(H)ln niiK'h. I hi no doul)t r(i(iall(i(J the days when on the Ohio, the Mississippi, and tlui San,i^a- nion he liad seen liis own or liis neighhor’s boats stuck on a sand-bar for hours, even days. Was there no way tliat these vexatious delays could be presented in shallow streams! lie set himself resolutely at the task of inventing a practical device for getting boats over slioals. When he ’ reached Springfield he began to build a model representing his idea. ^ ^ ^ ‘‘WHien Lincoln returned to Washington he took the model with him, and through Mr. Z. C. Rol)bins, a lawyer of AVash- ington, secured a patent. ‘He walked into my office one morn- ing with a model of a western steamboat under his arm,’ says Mr. Robbins. ‘After a friendly greeting he placed his model on my office-table and proceeding to explain the prin- ciples embodied therein that he believed to be his own in- vention, and which, if new, he desired to secure by letters- patent. During my former residence in St. Louis, I had made myself thoroughly familiar with everything appertaining to the construction and equipment of the flat-bottomed steam- boats that were adapted to the shallow rivers of our western and southern States, and therefore, I was abffi speedily to come to the conclusion that Mr. Lincoln’s proposed improve- ment of that class of vessels was new and patentable, and I so informed him.’ Thereupon he instructed me to ])re])are the necessary drawings and payiers and ])rosecute an a])])lication for a patent for his invention at the TTnited States patent office. T com})lied with his instructions and in due course of proceedings procured for him a patent that fully covered all the distinguishing features of his im})roved steamboat. The identical model that Mr. Lincoln brought to my office can now be seen in the United States Patent office.” A ])hotogra])h cut of the invention itself a])])eai-s facing page (U, Volume TT of the same work, with the following descri])tion at- tached : “Model of Abraham Iuncoln’s Device for Liftino Vessels Over Shoals. “The inscri])tion above this model in the Model Hall of the Patent Office, reads: ‘()4(i9, Abraham Lincoln, Siiringfleld, Illinois. Improvement in method of lifting vessels over shoals. Patented May 22, 1849.’ The apjiaratus consists of a bellows ])laced in each side of the hull of the craft, just below the water line, and worked by an odd but simple system of ropes and pulleys. When the keel of the vessel grates against the sand or obstruction, the bellows is filled with air; and thus, buoyed rM ii)), tli(‘ v(‘ssel is (‘X])(M‘tc(l to float ov(‘i* ilie slioal. TIk* model is about eighteen or twenty iiielies loii^', and looks as if it liad been wliittled witli a knife out of a shingle and a cigar box.” (LI Lincoln’s Complete Works, p. 64.) Clovernor V^an Sant of Minnesota, who appeared as a witness for the State, testified to a somewhat similar construction which was actually used in the 60 ’s on the Chippewa River. He said: ^^The ^ Silas Wright^ was built to operate on the Chippewa River, but they found that she was too heavy draft, so they built Uvo hulls, put one on each side of her and rigidly fas- tened 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 K) inches of water, although she was originally built for a draft of She would likely draw 18 or 20 inches of water.” (Abst., p. 860.) (The similarity of this device to Lincoln’s Patent was thereupon mentioned as follows by counsel for complainant) : ‘^That is somewhat like the model in the Patent Office made by Abraham Lincoln for lightering boats over shallows. That is one of the great historical curiosities. He invented a sys- tem of flat-wing raft wings that would go on each side of the steamer, and devised the idea of operating bellows that were to carry them over.” (Trans., p. 2560.). Later, in 1857, Abraham Lincoln argued in the United States Circuit Court for the Northern District of Illinois the great Rock Island Bridge case. An account of it is given in Tarbell’s Lin- coln, Vol. I, pp. 275-6, as follows: ‘‘One of the most interesting cases involving mechanical problems which Lincoln ever argued was that of the Rock Island Bridge. It was not, however, the calculations he used which made it striking. The case was a dramatic episode in the war long waged by the Mississippi against the plains be- yond. For decades the river had been the willing burden- bearer of the lYest. Now, however, the railroad had come. The Rock Island road had even dared to bridge the stream to carry away the traffic which the river claimed. “In May, 1856, a steamboat struck one of the piers of the bridge, and was wrecked and burned. One pier of the bridge was also destroyed. The boat owners sued the railroad com- pany. The suit was the beginning of the long and violent struggle for commercial supremacy between St. Louis and Chicago. In Chicago it was commonly believed that the St. Louis Chamber of Commerce had bribed the captain of the fiori hont lo run upon the i)ior; nnd it was said tlial lal(u-, wlion the l)ridi>e itself was burned, tlie steamers gatliei-ed n(;ar and whist l(‘d for joy. ddie (‘aso was felt to involve the future eoui-se of western (‘omuieree; and wlien it was eall(‘d in Sep- t(Mul)ei', 1857, at Chicago, peo])le ei'owded there from all over the West. Norman B. Judd, afterwards so prominent in the j)oliti(‘s of the State, was. the attorney of the road, and he en- gaged Lineoln, among others, as counsel. Lincoln made an address to the jury which those wlio remember it declared to be one of his strongest legal arguments. ‘The two points relied upon by the opponents of the bridge,’ says Judge Blodgett of Chicago ‘were: “ ‘First. That the river was the great waterway for the commerce of the valley, and could not legally be obstructed by the bridge. “ ‘Second. That this particular bridge was so located with reference to the channel of the river at that point as to make it a peril to all water craft navigating the river and an unnec- essary obstruction to navigation. “ ‘The first proposition had not at that time been directly passed u]mn by the Supreme Court of the United States, al- though the Wheeling Bridge case involved the ouestion; but the court had evaded a decision u]'>on it, by holding that the Wheeling Bridge was so low as to be an unnecessary obstruc- tion to the use of the river by steamboats. The discussion of the first proposition on the part of the bridge company de- volved mainly upon Mr. Abraham Lincoln. “ ‘I listened with much interest to his argument on this point, and while I was not impressed by it as a S])ecially elo- (juent effort (as the word eloquent is generally understood), T have always considered it as one of the ablest efforts T ever heard from Mr. Lincoln at the bar. This illustrations were apt and forcible, his statements clear and logical, and his rea- sons in favor of the policy (and necessarily the right) to bridge the river, and thereby encourage settlement and building u]) of the vast area of fertile country to the west of it, were broad and statemanlike. “ ‘The ])ith of this argument was in his statement that one man had as r/ood, a right to cross a river as another had to sail 11 ]) dr down it; that these were equal and mutual rights which must be exercised so as not to interfere with each other, like the right to cross a street or highway and the right to pass along it. From this undeniable right to cross the river he then proceeded to discuss the means for crossing. Must it always be by canoe or ferryboat? Must the ])rodiicts of all the boundless fertile country lying west of the river for all time be compelled to stop on its western bank, be unloaded from the cars and loaded upon a boat, and after the transit across tli(‘ i-ivci*, })(‘ r(‘l()a(lcHl into cars on the otlier side, to (‘ontinne their joniiK'y (‘ast? In this connection lie drew a vivid ])i('tnre of the future of the ii^reat West lying beyond the i-iver, and argued tliat the necessities of coinnierce demanded tliat tlie bridges aci-oss the river be a conceded rigid, which the steamboat interests ought not to he ailowed to successfully resist, and thereby stay the jirogress of develoinnent and civ- ilization in the region to the west. ‘AVhile I cannot recall a word or sentence of the argument, 1 well 1 ‘ememher its effect on all who listened to it, and the dec'ision of the court fully sustained the right to bridge so long as it did not unnecessarily obstruct navigation.’ ” (I. Tarbell’s Lincoln, pp. 275-6.) (The same bridge was the subject of the unsuccessful suit to abate brought in the Iowa District in 1858 and in which the abatement order by the United States District Court of Iowa was reversed and the bill dismissed by the United States Su])reme Court. 2 Black, 485. The case is valuable as marking the evolution of the Lincoln doctrine that a man has as good right to go across a river as an- other has to go up or down the river, that the two rights are mutual, that the existence of a bridge which does not prevent or unreasonably obstruct navigation is not incon- sistent with the naviguble character of the stream. Mr. Lincoln exerted a powerful influence upon the develop- ment of the transportation system of the continent. He is the author of the American doctrine of bridges.) It is indeed true as was pointed out by the dissenting opinion of Mr. Justice Nelson in that case, that the English law of bridges was the other way (quoting Lord Denman in Williams v. Wilcox, 8 Ad. & Eh, 314). The English doctrine there quoted and which has a varied but by no means preponderating following in many American jurisdictions is that: ‘‘The paramount right (of navigation) if it existed at all, must have been a right in everv part of the space between the banks.” This doctrine, of course, placed the bridge and the right of navigation in irreconcilable conflict and made their co-existence on the same stream an impossibility. Something of this sort lurked in the theory of the defense, which proved that there were ten bridges in the sixteen miles reach of the- Des Plaines Kiver and argued hence that the river was not navigable. That argument is built on the English doctrine which is not law in the United States and is not law in Illinois and was si^ecifically condemned by the SiiprcMiu' (\)iiri ()1‘ Illinois in Illinois Ilivor Pochol Pompdf/y v. Peoria Pridf/c /Issocialiou, .‘>8 III., 4()7. TIk' opinion of tlio ninjority in the Ward (aise (l^ Hlaek, 490) ({ispos(‘(l of this as Toljows: “It is also insisted with great earnestness that the piihlie is entitled to the free navigation of tlie whole river from bank to hank, and as the western half of the river is imdeniahly within the jnrisdietion of Iowa, it follows that the. bridge is a (hear nuisance within that district to the extent of Indf its length. According to this assumption no lawful bridge could he built across the Mississippi anywhere; nor could the great facilities to commerce, accomplished by the invention of rail- roads, be made available where great rivers had to be crossed.” The Illinois court laid down the rule in terms even more specific, thus : “In the case of the C olumhian Ins. Co. v. The Peoria Bridge Co.y 6 McLean, 72, the able and learned judge who delivered the opinion in that case entertained similar views to those we hold, when he said the right of free navigation of this river is not inconsistent with the right of the State to provide means of crossing the river by bridges or otherwise, when the wants of the public require them, provided such bridges do not, es- sentially, injure the navigation of the river. It must be con- sidered as settled, that the right to a free navigation of our western rivers, and the right of the State to adopt those means of crossing them which the skill and ingenuity of man have devised, as both are ecpially important, are co-existent, and neither can be permitted to destroy or essentially impair the other. The authority to construct a bridge across a navigable water wholly in this State should be exercised in such a niau- ner, as, while it gives full effect to the power itself, it should interfere as little as ])ossihle with the right of free naviga- tion; and this is the true test whether a ])arti('ular structure is such an obstruction as is contrary to law. “We go somewhat farther, and say, since it is in the very nature of these structures to obstruct, in some degree, free navigation, by contracting the channel or otherwise, and while it is admitted the State had the ])ower to authorize their erec- tion, a bridge constructed on the most a])proved plan, at the proper place and with sufficient channel between the piei-s, over any of our navigable waters, cannot, under any circum- stances, l)e held to be a material obstriudion of the naviga- tion, if it be shown that in oi-dinary times with ordinary wind and water, the draw can be safely ])assed, and it be further shown that no better structure could be erected for the j)ur- ])ose designed with the amount of outlay usually demanded (>08 foi’ siu'li inH](‘i‘tal llio ^i>()V(M'inn(Mil ('()nini(n)(‘(‘(l 11i(‘ work of improving llu‘ iiavii»;iti()n of river l)y removing- ro(5ks, etc*., and up to the present time $250, ()()() has been appropriated for this work. “With tlie advent of railroads into the country the import- ance of tlie river as a commercial highway decreased, until now navigation is confined to the Snake River between Lewis- ton and ILparia, a distance of 77 miles, there being no naviga- tion 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, however, and this makes tri- weekly trips between Lewiston and Riparia. These boats lay up in the winter when there is danger 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 by the railroad companies, and in the minds of most of the people interested the solution of the problem lies in the navi- gation of the Columbia and Snake Rivers. “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 transporta- tion of the future for the carriage of the products of the country, it must lie evident that everything de])ends primarily on overcoming these obstructions at the Dalles and the Cas- cades.” (Abst., pp. 1197-8.) “It is not to be denied that the most important work which can be done upon these rivers is the survey of their upper portions, mentioned by this lioard of engineers, which survey would be a necessary supplement to the survey of the Dalles and Celilo Falls, made in 1888. “The ])roject for the improvement of the river at the Dalles and Celilo Falls should include the project for the complete and pernuinent 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 world of which I have or can obtain knowledge with slopes- anywhere near as great as the slo])es of the Upper (k)lumbia and Snake, which is navigated in a satisfactorily and commercially prac- (il8 ti(*al)le way without the aid of locks and dams. It seems perti- mmt to compare these rivers with some of the other important rivers of tlie country which have been improved, or for the improvement of which prrojects have been prepared. “n[)per 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 lOJ inches per mile. In both rivers (Abst., p ) the fall is not at all uniform. There are long stretches of comparatively ([uiet water, broken by rapids and swifts, where the main amount of fall takes place. “The records of this office are very incomplete concerning the levels along the rivers. Most of the surveys made in former years were simply to determine the obstructions met with, the depths of water, channels, etc., and no determination of difference of level and slopes were made. (x\bst., p. 1198.) “The following is a LIST OF THE PRINCIPAL RAPIDS BETWEEN CELILO AND LEWISTON. with such physical data as to fall and slopes as are obtain- able from the records of this Snake River. Fall Five Mile Rapids 2.3 Fish Hook Rapids 12.5 Long Crossing Rapids Pine Tree Rapids 11.5 Monumental Rapid 1.7 Palouse Rapids 1.3 Texan Rapids 14.4 Little Goose Island Rapids 2.7 Big Goose Island Rapids Rapid below Penewawa Rapid above Penewawa Atwood Island Rapid Almota Rapid Ra]hd above Almota Lower Log Cabin Rapids 3.4 Upper Log Cabin Rapids Rapid above Granite Point 6.1 Steptoe Rapid Ra])id aliove White’s Ferrv 3.2 (Abst., p. 1199.) office.” Slope Slope Dis- ])er 100 per mile tance feet (in feet) 1,100 .20 10.56 6,600 .189 10.00 5,000 .23 12.14 300 .56 29.88 1,700 .076 4.00 6,600 .218 11.56 3,000 .09 4.75 5,000 .068 3.59 2,500 .244 12.88 2,100 .15 7.92 “iMaj. W. A. Jones, in his annual report tor tlui fiscal y(;ar (Muiing’ June JO, LSHO, says: “"Snake River between Lewiston and the month has ordi- nary widths of 1,000 feet, a slope of J.48 feet per mile, and a discharge of 20,000 cubic feet j)er second. All the bars have been removed to the extent of being no longer dangerous to competent navigators who are ac(iuainted 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 14 feet, so that the ruling low water depth on Snake River outside of Long Crossing Bar is now 8 feet. This depth I consider sufficient for present purposes.” ^‘No amount of work on the upper rivers or improvement in their condition will relieve the interior of the thralldom of the railroads until means are found of carrying the prod- ucts 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 the Legislatures of the two States to bring about some co-operative action whereby the two States could join in building ])ortage railroads at The Dalles and Cascades, but constitutional objections rendered this im- possil)le. The Legislature of Oregon then appropriated $60,000 for building a ])ortage railroad at the Cas- ('ades in order to give immediate relief to the country centei* ing at The Dalles City. This is now in ])rocess of ('onstnu*- tion. “Several waterway conventions were held by people inter- ested in opening the river, which finally culminated in one held in Portland Ai)ril 8 and 0, 1801. This (convention resolved on the formation of a ('ompany, with a (‘a])ital of $2,000,000 to build and o])erate portage railways at Tlie Dalfes and Cas cades and ])uild and run steamboats on the rivers. This (‘om- panv has not yet perfected its organization, or raised its capi- tal.^ (Abst., p. 1212.) “Everything indicates a general and widesi)read belief that with the ol)structions at dJie Dalles and Cas(*ades removed there would l)e nothing of a serious natui'e standing in the way of cheap watei* trans})ortation for the ])i‘odu('ts of the great interior regions. “So important and so vital to the whole s{cheme of utilizing these rivers is the removal of the o])structions at The Dalles and Cascades, and so utterly useless is any improvement of an extensive character to the u])])er rivers until they are re- moved, tlial .1 am constrained to recommend that no work of any consequence be done upon these upper rivers until the ^reat obstructions named are overcome eitlier by the con- struction of a canal and locks, a boat railway or a portage railway at The ])alles and tile completion of the canal at the Cascades. little work upon that portion of the Snake between Kiparia and Lewiston now navigated will be advisable from time to time to remove rocks hnd 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 liivers, there are several considerations which it seems proper that 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 scrapings, etc., as contemplated under the present project. “The Board of Engineers having under consideration the obstructions 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 indispensable 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.’’ (Abst., p. 1213.) OTHEK AMERICAN RIVERS SLOPES AND FALLS. ‘‘Ohio River . — The Ohio Eiver 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 Columbia and Snake, the project for the improvement of the Ohio to secure a minimum depth of 6 feet contemplates the construc- tion 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 for navigation in 1885. Its cost was $910,000. “Great Kanawha River . — The Great Kanawha Piver, in West Virginia, from Kanawha Falls to the Ohio is 942 milcrv 621 long, and in tliis distance has a fall of 1071)2 feet, an average fall of 1 foot and 1.7 indies })er mile. The project for tlie improvement of this river contemplates tlie building of 12 locks and dams, at an estimated cost of over $4,000,000. '^Cumberland River . — The Cumberland Kiver from Nash- ville to the Ohio is 298 miles long, and has a total fall of 122.0 feet, an average fall of 5 inches per mile. ‘H\)lonel 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 in 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 jRwcr.— 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 104 inches. “The lower 95 miles was improved years ago by the State of Kentucky by the construction of 5 locks, wdth 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. (Abst., p. 1214.) “The above examples serve to show that rivers having far less slope than the Columbia and Snake can not furnish ade- 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 com-, plete and consistent plan for the improvement of the Colum- bia and Snake Rivers, in order that all work may be done in accordance with the plan, and tliat money may not l)e inju- diciously and unwisely expended. “As a means of comparison the slopes of a num])er of other rivers which have been largely navigated are given. " Mississip'pi River . — From Cairo to the Gulf of Mexico the Mississippi River is 1,061.8 miles long; the fall is 280 feet; average fall 8.2 inches per mile. "Missouri River . — From its mouth to Sioux City the Mis- souri River is 808 miles long; the fall is 706 feet; average fall, 10.5 inches per mile. “From Cow Island to Bismarck the average fall is 9.8 inches pel' mile, mid from J^'ort HeTiton to (.^ow Island the average In II is 2.07 fe(‘t per mile. ' ' Sdcrduicuto liivcr . — From lied Bluffs (head of navigable walei') to Snisnn Bay the Sacramento is 275 miles long; the fall is 245 feet; average fall tO.O inches per mile. ''Arkmisds River . — From its mouth to Little Rock the Ar- kansas is 170.4 miles long; tlie fall is 115.7 feet; an average fall of 7.9 iiK'lies ])er mile. “From Little Rock to the moutli of the Canadian River the distance is 249 miles, and the average fall is 10 inches pei* mile. ''Aldbdvid River. — Ph-om Mobile to Wetum])ka the Alabama River is 507 miles long; the fall is 117 feet; an average fall of 5.8 inches per mile. EUROPEAN RIVERS. “The rivers of Russia which have played a great part in the transportation systems of t^ie country are characterized by a gentle average slope and current. “The Volga, from the Upper Dam to Astrakhan, is 2,184 miles long, and its average slope is 4^ inches per mile. ‘‘The Don for 594 miles has an average slope of 4^ inches per mile. “The Oka from its mouth to Kolomna is 557 miles long, with an average slope of 5f inches per mile. “The Moskva, from Moscow to Kolomna, 1104 miles long, has an average slope of 5J inches per mile. “From Moscow to the Caspian Sea the combined water- way of the Moskva, Oka and Volga, 2,122 miles long, has the remarkable 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 5484 miles of its navigable course has an average fall of 8 inches per mile. (Abst., p. 1215.) “The Rhine, from Imke Constance to its mouth is 455 miles long and has an average slope of 2 feet 11 inches per mile. “The Rhone, from Lake Geneva to its mouth is 5274 miles long, and has an average slope of 3 feet 9 1/2 inches per mile. “Tn both of these latter rivers tlie greater portion of the fall is in their upper courses. “Some five to six million dollars have been expended in regularizing the Rhone, with very unsatisfactory results.” ( 12:5 (\)LUMI51A AND SnAKK ItlVEHS ( 1 V ESIJ M ED ) . “Tlu' (‘xistin^' projcu'l Tor improving tin; lj})})or (.'olunihia ,jui(l Snnko, made in 1877, c()ntein[)latos tlio removal oi' rocky rei'l's and rock honiders, and scraping gravel bars, to secui-e a low-water channel depth of df feet in the (■olumbia and iV feet in the Snake as far as Lewiston. It is (luestionable whether the proposed chnnnej can be secured at every point by the means adopted. Past experience indicates that it can- not. “From Celilo to Wallula the river is navigale all the year round, as far as depth of water is concerned, for boats draw- ing of to 4 feet. “From Pi])aria to Lewiston the Snake is navigable all the year, as far as depth of water is concerned, for boats drawing 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 tne Snake and up the Snake to Piparia is the worst ])art of the river. Over this stretch boats drawing 2 feet can only pass, as a general thing, about 4 months in 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 portions of the river. “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 required. “The result of the work which has been done on the river combined with other causes, has l)een during the })ast 10 or 12 years to lower the river at governing points about H feet. There is just about the same depth of water at low water over many rapids, etc., as there was 10 or 12 years ago, l)ut the surface is lowered about If- feet on the gauges used by the steamboat men. This is due to the natural wearing away of the bottom of the river, to the work done by the Government and perhaps to other causes.” (Abst., ]). 1210.) United States Engineer’s Deport, 1905, Vol. VTT, Part 3, App. UU-9, pp. 2455-6: “improvement of the Upper Columbia and Snake Rivers, Oregon, Washington and Idaho.” “During December and until January 14 the dredge was engaged in raking and dredging Log Cabin and Offields l)ars, these being the slioalest points between Lewiston and Ri- ])aria. TJie eontroliiiig depth on tliese bars before raking and dredging 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. On January 14 the dredge waa laid up at the Lewiston moorings because of threatening freeze up on the river, ^d at the close of the fiscal year still is out of commis- sion because of high water. No work has been done on the river above Lewiston during the year. ‘^Eegular boats have operated throughout the year between Riparia and Lewiston and intermittently above Lewiston, as far as Imnaha during moderate river stages. In June of the present year, on the occasion of the opening of the State portage Railway — ’’ (Abst., p. 1203.) '‘Mr. Starr: By the way, Mr. Reeves, perhaps you can tell us about the State Portage Railway. AVas that the railway around the falls! "Mr. Reeves: That is as I understand it. "Air. Starr: (Reading.) In June of the present year, on the occasion of the opening of the State Portage Railway, between the Falles and Celilo, the steamer Mountain Gem made the run over the Snake and Columbia Rivers from Lewiston to Celido and return, 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 Alarch 3, 1905, appropriated $25,000 for this improvement and the project for expenditure of the sums provides for their use in operating the dredge between Lewiston and Imnaha, making repairs to existing dams, in blasting out rocks from the channel, and in making survey between Eureka and Pittsburgh Landing, which had been delayed on account of a lack of funds. "At the close of the fiscal year, the June high water in the Snake River is receding and it is expected to begin opera- tions with the dredge early in July.’’ (Abst., p. 1203.) The Columbia and Snake Rivees — The AVillamette, Yamhill, Stikine and Yukon Rivees. AVilliam P. Geay, a witness for defendant, testified as follows : Direct Examination. Aly name is AYilliam P. Gray ; age 63 next month. I reside at Pasco, AA'ashington. (Abst., p. 1506.) Aly life business has been swift water steamboating. Aly last work was on Snake Iviv(‘r. 1. be^an swii't water boating when 1 was K> yeai-s old on the Fraser Kiver in J>i’itish (Jolnnibia. I was operating- batleanx, with niy t'atber of eourse,' above where steamboat mivig’atioii ends.. In tlie winter of ] 850-1 801 , father and I built a sailboat 01 feet long and 12 feet wide at the bead of the Okanogen River, took her down the Okanogen and (\)luin])ia, River to tiie C^elilo Falls. (Abst., p. 1500.) In the fall of 1801 1 commenced operating on Snake Itiver, assisting my father. I was what they call the battean man. 1 went in a small boat and carried the lines up ahead so as to make them fast to rocks and stumps and then we would (‘any the line down and the large boat would catch hold of them and warp up. In that way I went over the river about three times every trip we made up. In 1802 I was running a sail boat, I was captain of a sail boat on the Columbia River from Celilo Falls to Wallula, Washington. In 1803 I went steamboating with my father, running from Celilo up the Columbia to the Snake; up the Snake Eiver to Lewis- ton; up the Clear Water River to Lapwai. Pasco is at the junction of the Snake with the C_olumbia River. In 1801 1 was steamboating on the Columbia and Willamette, between Portland and Astoria as mate. In 1805 I went as master and ])ilot of steamers for the Oregon Steam Navigation Company between Celilo and points on the Columbia River and trib- utaries as far as Lewiston on the Snake River and Priest Rapids on the (5)lumbia. (Abst., ]). 1500-7.) 1 continued in that business for two or three years. In 1807 I was employed by the United States Engineers as assisTant engineer and captain of a schooner to survey the ra])ids of the Columbia River be- tween Celilo and the moutli of Snake River, doing all the soundings with a small boat myself, sounding all ra])ids ahead. In swift water it is very difficult to get soundings. We have to ])ut a line away out ahead and swing the small boat on it. It is very dangerous where the water is swift and i*apid and in amongst rocks. In 1809 1 was master and ])ilot of passen- ger steamers by the Oregon Steam Navigation Company. In 1870, 1871 and 1872 T was master and y)ilot and part owner of tug boats on the Columbia River bar, and tributary streams around Astoria. In 1873 and 1874 T was in the l)utcher biisi- ness. In 1875 I went on the Willamette River running from Portland through the locks up as far as Harrisburg, which is the extreme limit of navigation (Abst., ]). 1507) and also navigated the Yamhill River as far as McMinville, which is only navigable about two months in the year, a small stream. In 1877 I was employed to take a steamer from Seattle, Wash- ington, to Fort Wrangel, Alaska; then run her on the Stikine River, which runs — which empties into the bay eight miles above Wrangel, extending ])ack into British Columbia. That is considered one of the most difficult and dangerous to navi- gale on llio Xorlliwosteni Coast. I was master and pilot; (lid not have any pilot with me, done my own piloting. The man that went up next year sunk her the first trip, hut that was none of my business. In 1871) 1 went baek to work for — hold on, I am ahead — I went Ijaek to work for the winter on the Willamette and Yamhill, and in 1878 was sent for hack again onto the upper Columhia River to run steamboats up there as master and ])ilot. 1 don’t know of anything to say about the government boats. In 1878 1 was selected to run a [)atrol boat on the river (Abst., 1507) carrying troops. During the Rannock Indian War 1 patrolled the river and ket)t the Indians from crossing, and made it possible for the troo])s to overtake tliein and cai)ture all tlie Indians and ended the war. In 1879 and 1880, tlie same thing. In 1880 took charge of transfer l)oats of the Northern Pacific Rail- road across the Snake River. I was there until 1884. During 1884 1 made for the Oregon Railway & Navigation Corn- ])anv a reconnoissance of the river of the Columbia River above Pasco, in which the rapids had been declared im- passal)le. 1 reported that it was possible to take steam- boats u}) over the rapids in medium and high stage of water. ]\Iy report was given to the U. S. Engineers and is embodied in their report for 1884. I worked for the Northern Pacific Railroad Company almost continuously until 1894. In 1895 I brought the steamer Norma from Huntington, Oregon, down through the Snake River Canyon 250 miles to Lewiston, Idaho, where I had never seen the river before, and arrived safely. In 1896 I was operating at the Cascades of the Columbia in swift water for the contractors, handling their scows and tow-boats. (Abst., p. 1507-8.) The contractors were building locks for the government around the cascades of the Columbia, a canal and locks. In 1897 I was master and pilot on the Columbia River between Astoria and Portland. In 1898 I drew plans and superin- tended the construction of two steamboats with the Klondike Mining Trading Transportation Company of London, Eng- land. I built the boats and put one of them— started up to Fort Wrangel with one of them and had a pilot that ran me out onto a rock, busted it, wrecked it, but was sent on to another boat u]) there and ran her that season for 27 trips on the Stikine River without accident. In 1899 I fitted out a stern boat at Seattle, Washington, took her up across the North Pacific Ocean and Behring Sea to St. i\Iichaels, took a load on at St. Michaels and continued on u]) to Dawson on the Yukon. There I met a captain who wanted to stay in all winter and I wanted to go on out, and I took his steamer and ran her u]^ 480 miles to AYliite Horse, which is the head of navigation on the U]:)])er Yukon; had no pilot on it, never had seen the river before. (Abst.,. p. (\'27 |). ir)()S-!).) ^riio only pl.u'o 1 had a pilot on tli(‘ vvliolo Iri}) fi-oni St. Mi(*lia(‘ls to \V!iit(‘ lIoi-s(‘, a distaiuai of ahont niil(‘S, was hO miles over the ^dikon flat. I retained to th(‘ Yukon during 1900 and 1901, was earried out on a stret(‘her that tall and refused to go in. In 1902 1 was engaged by the Nortliern Paeifie to run a steamboat on l.ake (\)eur d’Alene, and the St. Joe Itiver and ran there until 1904. Then the Northern ITicifie sent me over to Lewiston, Idalm, to run a steamboat in swift water where tlie otlier boys tliought it was a little dangerous. That was above Lewiston, up through what they call the AVild Goose Kapids, and I ran there for about a year, and in 1905 I made a trip down over the Snake River and the Columbia from Lewiston, Idaho, to Celilo to the opening and dedication of the Oregon-portage railroad. In 1906 I was run- ning on Snake River, carrying supnlies and equipments to the contractors for construction of the Spokane, Portland & Seattle Railroad. (Abst., 1509.) Prom 1884 to 1890 I was captain and pilot. Out there we do not carry any pilot. The captain is the first pilot, he is supposed to — from 1884 to 1890 I was in the employ of the Northern Pacific in charge of their transfer across the Columbia River at Pasco during that period, six years. The bridge was com])leted — well, in 1888 a company of peo])le from Ellensbnrg, — a captain from the Mississippi River induced a company to build a steamboat to run from Pasco up the Columbia River through the Priest Rapids, Rock Island Rapids, and other dangerous rapids to the Okanogen country, where there were mining interests. Just before 'the boat wccS (‘om])leted the ('a])tain went u]) and made a reconnoissan(*e of the river, got cold feet and left the country. The com])any built that boat and asked me to take her. I had a lucrative business then in the real estate busi- ness. I neglected that and went up there and took that boat up. In 1887 the (). R. & N. (k). (Abst., ]). 1509.) manager and officers, with General Gibbons, then department commander in AVashington, with 120 soldiers went on a steam- boat and tried fo get her through — take her through the Ro(*k Island Ra])ids. They got right into the Rock Island I\a])ids. They are on the Columbia just below AYenatchee. They faihal to get through. The ca))tain failed them and 1 took it and took her u}) through the rapids 220 miles up the (k)lumbia River onto the Okanogen River and made sevei'al trips. I took the boat up there and made a success, and they are now running boats np there above these ra])ids regulai'ly. It is dangerous to take a boat over there, in fact, there was one wrecked coming down last year, but I never had any ti'ouble. f thiidc that I am conp)etent to nass on o])inion on the navigability (Abst.. p. 1509-10) of swift and shoal waters. I have seen the Res Plaines River from Joliet to its junction with the Kan- kakee. I have been in (liicaigo before, in the fall of 1892, from July to the 27tli of December, 1892. I was in the real estate business. 1 never saw the Des Plaines J\iver at that time. 1 was a commissioner from the State of AVasJiington to the AVorkPs Pair. The first time I saw the Des Plaines that I remember was yesterday. 1 saw it from a ])oint at Joliet and the Kankakee, where they join the Illinois, make the Illinois, in my opinion the Des Plaines River between the two ]n)ints that you have named, (Abst., }). 1510) f Joliet and the mouth is not a navigable river, capable of being navigated for useful purposes of commerce. In the first place, commerce could not ])e handled, freight could not he handled on that river in competition with wagons along- side, as the current in the river, shoals and rocks and bars, would preclude the possibility of carrying freight enough on boats to make it commercially successful. It would not be safe. As I have seen the river, of course, there may be some flow in it, but as I see it now there is not depth of water enough to allow boats to pass over with safety. The form of construc- tion of light draft boats (Abst., pp. I5I0-I) is such that their bottom is very weak on account of having to be buoyant. A small obstruction in the river coming in contact with the bottom would break a hole. That, of course, would be ex- pensive to repair. A slight hole of six inches in diameter in the bottom of a boat would cause her to sink. The expense of — there might he such a thing as a skiff or something of that kind being taken down, but commercially I should say that it is not practicable at all to navigate the river. I determine that fact by my knowledge of water. (Abst., p. 1511.) I would say it would be less expensive to build a steamboat railway around the outside and let the river bed alone. (Abst., p. 1511.) It could not be navigated. Q. You have stated that you took soundings in 1867 and 1868 under the survey made by Colonel K. S. AVilliamson, Department of the United States Engineers. Were yours the soundings that were reported as the soundings of the rapids and river? A. AYere thev mine? Q. Yes? A. No, sir, I was just — they were reported by Lieutenant Heuer. Q. Are those the soundings? I call your attention to the volume, part five of the annual report of the United States Engineers, United States Army for 1891, on page 3214, there- of, schedule of Snake Eiver, showing slopes per mile, and ask you whether the slopes are at low or at high water, or at what stage of the river as given in that report? A. T cannot say positively that I know. Air. Scott; — Pick out any of those and see what is stated tliuro and tlieii [)()ssibly that will rerresli your mind. This is tlio coluuiii ot' sloi)es per mile and lliere are diirerent rapids! A. 1 recognize all those re[)airs, but we pay (Abst., p. 1511- \' 2 ) no attention to hgiires in steamboating. The slope per mile carries no meaning to a river pilot, lie goes and he takes his boat over, judging the depth of water by observation, what he can go over satisfactorily, what he cannot is — Q. Now, that suggests an idea to me. What has the depth of water to do with the navigability of a river at places where the slopes are high! A. The deeper the water the better yon can navigate it, and in most of the places where the slopes are the highest the water is narrow and deep. Q. Is that true on Snake River! A. In places, yes, sir. Q. Will you give the character of the Snake River if you can, as to its width and dei^th, the part of it which is navi- gated! A. On the shoals between Lewiston and Riparia where navigation is being carried on at all times, the river is, I should estimate, say between 700 and 800 feet wide. The shoals are — on the shoals it is wider, but the water is distributed over those shoals in such a way that with a boat drawing 21 feet of water it would require four deep depth to proceed without touching the bottom, as at the break of shoal she will tip up the weight of her — , of course where there is a break the weight of her that goes out of water will bury the center. The stern wheel which is digging out the water from the (Ahst., p. 1512-13 bottom is digging away her support. Those two actions cause tlie center of the boat to drop and go down further and her natural draught when all of her whole bottom is in the water, conseciuently we expect to touch, — with a boat drawing three feet we expect to touch center on three feet six inches or four feet. In gravel you have got a great deal more surface to strike your l)ottom than you have — gravel or sand — than you have where it is rocks. If you have rocks or boulders they are isolated points and the boat will go with more speed. She won’t have so much underpinning, as you might say. She strikes those rocks and they knock holes in the bottom. On gravel tlie blow l)eing distributed all over don’t make so much damage. Q. Is it then true to say that in swift water if you have a gravel or a sand shoal you can go very much safer and more rapidly than you can if there are boulders! (Objection, overruled.) A. Much more so. Mr. Scott; Do you know the depth at low water at Little Pine Tree Rapids, on the Snake River! (Abst., p. 1513.) A. In extremely low water there is about two feet. 030 (^. That is at Little IMiie Tree Slioals, is it not? A. Yes, sir. ir^. What about Jjittle Pine. Tree Kapids? A. Little Id'iie Tree Kapids are from six to eight feet of water in the ehannel. The river begins to rise in tlie spring al)oiit the first of April. Jt does not recede so as to interfere with navigation until about the first of August. Prom the first to tlie middle of August is generally the lowest water we have, and then it is low from the middle of August for about two months, or very close to the first of November. Then we have the fall raise. The high water in the spring is all caused by melting snows in the mountains. The faii raise is caused by rains which fall in the winter time, before they are frozen and turned into snow. These rises in the si)ring, this high water rises to (Abst., p. 1513-14) a height of sixteen to twenty feet. It will commence at the first of April and generally about the last of May or the first of June is the extreme high water. It will gradually recede. It is a gradual rise and a gradual receding. Navigation is sus- })ended at about eleven inches above zero, between ten and eleven inches above. That would be about — just about three feet over the bars. Aside from the l)ars we have all the way from eight to twenty feet of water in the river. There are spaces there where there is for miles we have from eight to twenty feet deep at low water. Q. Do you remember what the velocity of the river is, or have you any accurate information as to that? A. We consider — of course, I have no accurate information, (Abst., p. 1514) but it is generally considered that the velocity of the Snake River in high water is about eight miles an hour. Q. What is the effect of the raising of the water upon the slopes at these various rapids'? A. It equalizes the slopes so that the surface of the river is — that is, the currents are distributed — the current is dis- tributed. Q. Does that mean that it flattens the slope?' A. Yes, sir. (Abst., p. 1514.) Q. Captain Gray, you said you were in the real estate busi- ness in Chicago for a year. Were you selling Chicago real estate? A. No, sir. I was selling Pasco real estate. I am presi- dent of the Pasco Commercial Club. Cross-Examination by Mr. Starr. Q. I think you said. Captain, that you began work on the Fraser River in British Columbia? A. Yes, sir. (^). you were tliirleeii y(‘ars old? A. Yes, sir. (Absl., \). 1514.) Tlud was ill 185cS, the i'all of 1(S58. I was ruiiniiig a hat- teoii, helping my father to run i\ batteau and earrying freight from Murderers’ Bar, wliieli was the uiijier end of the steam- boat navigntion to Fort Hope, and also we continued from Fort Hope to Fort Vale, through the rapids. There are a great number of rajiids in the Fraser River. It is the second river in size on the coast to the Snake River — to the Columliia River. It empties into the Gulf of Georgia, which empties into the Pacific out of tlie Straits of Fuca, just north of the Tilth ])arallel. The total length that it is navigated from its mouth to the Canyon "above Yale is about one hundred and thirty miles, may be more than that; 1 don’t recall the exact distance, it is so many years ago. It is entirely on the Pacific slope. TTiere is a pass at its head. (Abst., pp. 1514-15.) The Canadian Pacific follows it down, follows down its north bank now. They came right into the pass and into the V alley of the Fraser River. The old Hudson Bay route crossed the Cas- cade range, left the F''raser River at Fort Hope, followed the Samilkameen and crossed the Cascades across Manson Moun- tain, Deer Mountain, and over to the head whalers of the Samilkameen, and wdiere the Samilkameen empties into the Okanogen and the Okanogen enpities into the Ckilumbia. That is the route McDonald followed. He came through while I w^as at Fort Ho|)e. 1 met him when 1 was quite a l)oy. McDonald was quite an elderly man at that time. IVe still continued to operate by batteaux above the steamlioat nav- igation of the Fraser. (A!)st., p. 1515.) The length of bat- teau navigation at that time was about twenty-two miles alto- gether. The width of the river at that stretch was from 600 to 1,000 feet, 1 should say. There were several ra})ids in it. The Unum Bdv Rapid was a gravel liar, rather shoal. In low water there was about four feet of water on it. We went on up to Emory’s Bar, which was a very narrow, swift rapid, and also a very — the channel through there was (piite deep, ])ut it wms about 500 feet wide. (Abst., ]). 1515.) Where the water runs down through it was very narrow; it run tlirougli that bar in a curve and followed a cliff around, but on the other side, on the left hand side going u]) was a })ig eddy, the current flowing around there. T don’t sup])ose the current was over 60 or 80 feet wide and the navigation i^assed through that 60 or 80 feet strip there. I su])pose at that one place it went about eiglit or nine miles an hour but it was just short, not more than a counle of hundred feet. The next principal rariid was Hill’s Bar: it was (juite swift and there were large lioulders or reefs that were scattered around through the river; the surface of the river from bank to ))Miik was about (iOO foot, but tlie oliaiiuel^ wo Jiad to go botweou rocks wliere it })rol)ably wasn’t more than fifty or sixty foot wide. I know t was wrecked on a small boat there once. These Pachfic slope streams get their great water supply from tlie lofty mountains (Abst., ]). 1515) and are quite thickly studded with boulders and erratic stories and cobbles that come down the stream. That was true of the Fraser. From Hill’s Bar to the head of navigation was about three miles to Fort Yale. Then just above Fort Yale there is a fall, a canyon. The fall is right in the canyon with a little path on the outside and the boats and batteaux used to make por- tages to go down there. They carry around there. They sometimes would shoot the boat down stream. 1 never went over ; I have heard them say there was' about eight or ten feet fall; I couldn’t say. I continued in this batteau navigation during 1859 and part of 1860. The batteaux are Hudson Bay batteaux, they are called. They are very flat on the bottom and have flaring sides, and they are sharp at both ends, with a flare; both ends are sharp. (Abst., pp. 1515-16.) They come rather high out of the water at each end so as to avoid taking water over the freight, wetting the freight, and it is also so that the man who poles — they pole these boats and use poles, a man in the bow, they have a seat right in the middle and he guides the bow and the man in the stern holds from his end of the boat also and he guides the stern ; then in poling they have a line that they attach to the end of the thwart and they cordelle up that bank of the river where it is swift. I used the cordelle method in going upstream every trip. When there wasn’t any wind, we used to cordelle about three-fourths, well, may be four-fifths of the way. And when there was a good wind behind us, we would put up a sail and carry it up. (Abst., p. 1516.) I think my batteau was about 22 feet long, about 20 or 22 ; I would not be sure. The breadth of it was about 5 feet. I would carry from two to three thousand pounds. • The freight consisted of mer- chandise, supplies that would be used in the mines, beans and coffee and groceries and food of all kinds. We carried nothing on our down trip. Q. And how did the size of your boat compare with the other boats, or batteaux that were in use there! A. There were a great many canoes used there, the North- ern canoe, the Chinook canoe was used, and also the Queen Charlotte Islands canoe was used. Q. Well, were there batteaux of this generahtype of your boat that were smaller than yours, and others that were larger! A. My father built two boats in 1858 which were small. We run them until the winter of 1858 and 1859, then he built a boat that was fifty feet long and seven feet wide. We us(m 1 luM' in sai ai!(N'()r(l(‘irmi;'. (Al)sl., p. lalO.j Sli(MJr(;vv al)oui a Toot ol* watcn- vvIkmi s1i(‘ was light, and loackMl down to about two toet and a halt. She woidd carry about be- tween eight and ten tons. The 22-foot batteau would (iraw about two feet when loaded. The fur trade route ran off to the south of us a little. It left at Fort ilope and crossed the mountains, following a stream callell the Coquilla and went across the Cascade Range. They took the Samilkarneen to go down into the strait. I went across that with my father in 1860. They didn’t have any boats on the Samil- kameen River, that is, a larger boat than her. I helped father build a sailboat in 1860 and 1861, when we left Fort Hope and went across the mountains down the Samilkarneen River, down to the Okanogen, the head of the (Abst., pp. 1516-17) Okanogen. There we built a boat 12 feet wide and 91 feet long that went by sails and a sweep when we took her down the river. My father took her down there. She went down the Okanogen River, we called it 60 miles to the Columbia, then 340 miles down the Columbia to the mouth of the He Schutes River. Q. Take this map of Washington. A. Here you will find the Okanogen up here; there is the Osoyoos Lake, and there is where we built her, right in there. Three miles from the British Columbia line. That is Lake Osoyoos; then here is the Samilkameen; it don’t show that, but we came across here and struck the head waters just below the south fork of the Samilkameen and followed it right down. We followed this line that has ‘^Preston” on it (Abst., p. L517) and came down here and followed over here (indicat- ing), and stayed there all winter. We just traced the line from Preston to the lake, then we followed the Okanogen River, and here is where we came into the Columbia at the point of its junction at a town that is called Brewster now. We followed down the Colum])ia River, down through all these rapids. Here is the Wenatchee River. Q. You point to its connection at a little town called Wenatchee? A. Yes, here is Rock Island; Rock Island is right there (indicating) Rock Island Rapid. Q. Yes, it is labeled so on the map, I see. A. And we came down here, here is Cabinet Rapids, a bad rapid also at a certain stage of the water. We followed down the Columbia River across the Priest Bapids, and from Priest Rapids clear down following around until we struck the Oregon line and down as far as the He Schutes River, and right here is where we landed at that time, at the He Schutes River. Mr. Starr: — Mark it. (i;!4 A. It is between the “R” and “B” in tlie word Oregon, away down to your left. ’ 'rile (^ourt: — Down tlie C.^)lunib7a. (Abst., pp. ,1517-18.) A. No, down here, down at the bottom of tlie Oregon line. Mr. -Starr:— On tiie Wasliington map, you see tlie label in tbe wJiite iiortlon for Oregon of a stream named the l)e Seliutes coming north I A. That is where we landed. Now, in 1862 the Oregon Steam Navigation Chmipany built a railroad from The Dalles, the City of Dalles np here to the City of Celilo, just below De Schutes; it liecame the town of Celilo. (^. You have just drawn a line indicating it on the Oregon sidef A. Yes, sir, tliat is where it is. (^). Coming down from the Okanogen River did you strike any rapids in the Okanogen! A. b’here is wliat they call McLaughrui’s Falls, McLaugh- lin’s canon there. McLaughlin’s canon creek comes out of there. (Abst., i). 1518.) Q. .How much of a fall was there! A. Right close, just above the mouth of that canon creek there is a fall of about 6 feet, a ])erpendicular drop. 5Ye shot the falls. The Okanogen at that point is about 100 feet wide. This was a 91 foot boat and there were three men besides my father. ((). AVell, you got on down l)elow and came to the Colville reserve ! A. Colville reserve, yes, sir. Q. There is a falls in there too! A. There was no such thing there. 0. No the reserve had not been laid oft at that time. (Abst., p. 1518.) Do you remember the falls in .the Colville reserve ! A. There is no such falls there; there is a rapids there. Q. 0 yes, how much of a rapids is there! A. AVell, they have taken steamboats over there in the last four vears; they have taken them up. Q. Yes. A. A steamboat has been taken right from the mouth of the Okanogen up into Osoyoos Lake. Q. YVhat is the name of that boat, if you happen to re- call ! A. I don’t know; I forget it. Q. AVhen you came down, the old Hudson Bay fort, Okan- ogen, was still quite a trading post! A. It was still there but it was abandoned. Q. The Hudson Bay Company had retired after the Ash- burton Treaty! A. Had left, yes, sir. (,j). W'as tluM'e anything any [Xiopk* tliore! A. Ihiern was stoc'kade there yes; the stoc'.kade was there. Well did you encounter the Downhig Rapids!/ A. 1 don’t know anything about tlieni ; I don’t renieinber that. I renieinber where Lake Chelan comes down, d’here is a rapids there. Q. ddiat is the one we now call the Downing Rapids? (Abst., pp. 1518-19.) A. Yes. Q. How much of a rapids is that! A. 1 suppose that is a five or six foot fall; there is a cliff on the right-hand side coming down, an island below, and there is a shoal water runs over on the reef. You have to stick to the deep parts to get through. We shot that fall. That was the first time that I encountered the Rock Island Rapids. I have been through that fall since. Kock Island is a cliff’ that puts out ou the left-hand side, prob* ably thirty feet high, perpendicular, and there is a bay above it, and if is so that you cannot get lines around it to pull through. (Abst., p. 1519.) That Lone Rock is some distance below the rapids; it is about a mile below the rapids. The island divides the channel; it seems al)out ecpially dividing the channels. The rai)ids are named Hock Island from an island right in the middle; it is very abrupt and then there are high reefs of rocks running parallel with the current down below and about half way ud the island there is what they call Hobbsville Point, about thirty feet high; it di- verts the channel, so that you come around tliat point. It comes at more than a right angle the water coming around this way and you have to be very careful on those reefs below; you have to droj) your boat right down close to this rock underneath so that it makes a very short bend and follow down around the island in that way. It is not possible to run, what we call, “run the rapids;” you must drop your boat down through, and in going up — we gauge it for dropping, by working a wheel, reversing your stern; in coming u}) I had to i)ut out four different lines. One line we (Abst., pp. 1519-20) had to i)ull her out, to work along, another breast . line to hold her bow from swinging around when the current caught her, another at the stern to keep from going too fast and another at the stern to kee]) h^v from the rocks. Q. And with all these things reversed, you could drop her down, you said! A. No, I put out those lines going up. Q. Oh, you put the lines out going up! A. And in going down I key)t my l)oat in the clear and reversed her with the wheel, held her with the wheel. The speed of the current at that place is not over six miles an hour. The narrowest place is about — the shortest distance l)(‘l\veen rocks is about 80 feet, hut hy leiigtlieuiiig tlie eur- r(‘ut we make it more, that is, we drop the boat down and let Jier swing as 1 am holding her, and when we get ready to shoot in, we drive her into a place that way. That width is from the furthest projecting point out on one side to the furthest projecting point on the other. Those Rock Island Rainds occupy a reach of from one-half to three-fourths of a mile in tlie river. (Abst., 1520.) You get to the Cabinet Rapids shortly below there. The Cabinet Rapids is an island with gravel on it, a reef on one side and gravel on the other side of the island. In high water we come up around the island and have no trouble; in low water it is like going into a box, that is why they call it the Cabinet. You go right down in and the whole force of the current goes right into that, right into a trough or into a box, so that you have to hold the boat and let the current swing her around. All the current of the river goes down and strikes the cliff and dashes up sometimes six or eight or ten feet and runs along within forty feet of the shore; on the other side will be an eddy and you have to' drop her down and have her go very close to the rocks or hold her up with the wheel and let her nose drop down by until you get her straight to make the turn holding her; it is impossible to run right straight down. The width of it in the part where you can run your boat (Abst., pp. 1520-1) from rock to rock is about 300 feet. That is, between pro- jecting points on each side of the stream. But the current is only about forty feet wide, and you have to stay in that forty feet width because the eddy would catch us and drive us out of our course. This current forty feet wide makes a sharp turn dashing right against the cliff. When it makes the turn I don’t think it is a right angle curve; it isn’t quite, and just below the curve it goes all into whirls; there is no continuous channel below. That is ‘^the eddy.” We called it six miles from the head of Eock Island Eapid down to the foot of the Cabinet Eapids. The Dry Kiln Rapids don’t amount to anything. Q. Well still lower you come to the island rapids (Abst., p. 1521) ; there is another rapids some distance further down called the Island Eapids before you get to the Priest Eapids, but you say those don’t amount to anything? A. I don’t remember them to amount to anything,- because I never paid much attention ; we never had any time for them. Q. Well, we will go down to the Priest Rapids; what sort of a rapid is that? A. That sir, is — the river is filled from one side to the other, I think, from water’s edge to water’s edge is from 800 to 1,000 feet wide and between that there are quite a number of channels in between reefs. Where they go over that’ rooT ihai extcMuIs — a siu'C'essioii of i-oofs (‘xtcaid (‘l(‘ar a('i-o.ss (lu‘ riv('r, it is swift; hetwoon those ])laees it is not very swift, blit the reefs overhi]); we go down through one i*(ief ill OIK' })la(*e, then we have got to ])ull her across and drop her down in anotlier ])laee and go down that way, and just seem to veer- across that way until we get down to tlie foot of the ra])id where there is a great fall; it is almost — not exactly vertical, but it is a ])our and when I was there, there was a rock but the Government bad improved it; there was a rock in the middle wbicb made a very heavy swell, lint tliat can only lie navigated in a medium or high stage of (Abst., p. 1521) water. At the time we came down there tlie rock was still there, hut it has since been removed. \ understand that the Priest Eapid is nine miles long; that is what we considered it. At the lower rapid the current, in my estimation, is about 12 miles an hour. These reefs were the native rock in the bed of the stream, basaltic rock. They didn’t seem to catch boulders as they washed down the stream; the boulders got mashed up to cobblestones before they got there. Our boat left Lake Osoyoos on the tenth of May and I don’t remember the time we arrived at De Schutes; probably — I couldn’t tell you; I think it wasn’t over twenty days. I made the journey upward from the Dalles, u]) to the lake again in 1888. (Abst., p. 1521-2.) [ run the river that season with a steamer. 1 made one trip from Pasco to Okanogen up to Priest Papids and the Pock Island Papids, turned around and made four trips from Okanogen to Port Eaton, which is where the Chicago, Milwaukee & St. Paul Pailroad now crosses the Columbia Piver. Q. "What is the name of the town"? A. Port Eaton; I don’t think you will find it on the ma]). AVe called it that at the time; it is just a tenpiorary name. Q. That is up above the Pock Island Pa])ids? A. No, it is just below Pock Island Pa])ids. I don’t know whether you will find Johnston Canon there or not. •Q. They call it Pyansburg! A. Yes, sir, it is right east of Crab Creek; you will find (Tab Creek on the map there. AVell, it is right on the other side of that; I ran from Okanogen down there, made four trips ; then I started up again and in getting over these Cab- inet Papids my engineer made a mistake and shot me into the current and broke the line and throwed a man down into the water and broke her nose right square off, and I had to haul her out and in hauling out I broke the capstan and turned around and went back and run down over Priest Papids to Pasco, got a new captain and came back again. (Abst., p. 1522.) Pasco is where the Snake ])uts into the Columbia. The steamer that I took through there in 1888 was 124 feet long, 22 feet beam, and had engines — (^). W'lijit was the indieated horse-power of' tlie engines? A. Ten inch eyiinders, three foot stroke, very small power, 120 })oiinds of steam was all I carried, so that you can figure it out, I am not an engineer. A. She drew about two feet of water. She carried, — the biggest load I had on her was about fifty tons. Q. You S])oke of the railroad coming in there; it is a gen- eral fact in the history of the country out there, (hiptain, tliat after they got those railroads all ))uilt tliey didn’t use the i‘ivers as much as they used to l)efore they liad any railroads, is it not? A. Yes, sir, ])ut they are running boats above this Rock Island. Q. Now they are using boats again! A. They are still running them, have been ever since I took that boat u]) there. (Abst., |)p. 1522-3.) My freight was a miscellaneous cargo of supplies, groceries and supplies for use in the mines. I was carrying ore down at that time. Since then tliey have develo]:>ed the wheat industry and are carrying tliousands of tons of wheat every year. The Celilo Falls are 14 miles above the city of The Dalles, in the Columbia River. There are several islands in this stream, both above and below the Celilo Falls and in the river all the way. In high water there are no falls; there is quite a rapid but there are no falls. In low water there is a fall there of 37 feet; it is in the form of a horseshoe, falls around, the reefs come out of water on the right-hand side and the reefs form a horse- shoe and drop right into a channel right close to the Oregon side. That is, the cliff- over which the river runs has washed l)ack in the middle where the deeper water is and the greater amount of friction on the rock. (Abst., p. 1523.) The whole river goes through there. Take the front of the horseshoe, where the deeper passage is, leaving out the two side places and it is probably 300 feet wide. (Abst., p. 1523.) I never* passed a boat around these Celilo Falls. I have known it to be done. That has been done occasionally, depending upon the condition of the water. The Dalles is six miles below the Celilo Falls. These Dalles are the places around which the Portage Railroad, that is adapted for the carrying of freight from the boats below to the boats above, has been built. (Abst., p. 1523.) The ‘‘Dalles” in the Columbia means a wall, walls where the water runs through. At low water in these Dalles steamboats have been taken through it but in high water I understand the Government survey makes it that the whole of the Columbia River runs through a place there 185 feet wide, and when there is a flow of water the current is not very strong through there because they have sounded down 300 feet and didn’t get any bottom, but when the flood comes it chokes at this place, and one year we had a boat, had taken her down tlirougli over the (Vhilo Falls and tlu* vvatehrnan kept an acH'ount of the raise in the wat(‘r and there* was a hundred and forty foot I’aise, which hacked the water up and destroyed the fall at (’'elilo. Von see it is a choke* in the; rivei*. I have made tri})s iij) the Snake River itself from Pas(*e) all the way u]) te) Lewiston. I first maele that trip — we left the moiitli of the Snake River on the 11th of September, 1S()1, and arrived at Lewistem, being 40 days ge)ing up the I'iver. We call it 155 miles. AVe didn’t go epiite four miles a day. (Abst., p. 1528-4.) Q. How much time did it take in tlie down stream trip from Lewiston to Pasco I A. Coming down we were, I tliink, about four days, com- ing al)oiit forty miles a day. AYe didn’t run at night either time. It wasn’t safe to go at night. The Ainsworth Bar ex- tends out from the AAmlla AA'alla county side of the river and extends up above the incline on the Ainsworth side until it gets right opposite the old south Ainsworth incline and then the bar extends right across the river, bnt there is a de- pression in it that we go through; I run that for a good many years. The depth of water there is four feet and a half. (Abst., p. 1524.) I saw it when the ice was frozen to the bot- tom and 1 was stuck drawing three feet of water right in the ice. That was about the lowest that they had there. Q. Do you know Ca})tain Powell ? A. C’aptain Powell of the United States engineers! Yes, sir, I was well acquainted with him. (^). He s|)eaks of it having a minimum depth of three feet. A. AAYll, he got it some time when they didn’t strike the right sounding. 1 can show you a line of soimrlings where they will show ten feet on the (lovernment survey, and 1 will show you a dry reef sticking out of water four feet. Q. It de])ends somewliat on the time of the year when they take it and the condition of the water! A. They take the sounding at high water, and then reduce. They will take a sounding when tbei'e is six feet of (Abst., ]). 1524) a raise. If they get nine feet, they will redu(*e it to three feet; that is the way they get a great nmny of their measurements. They don’t sound in low water. Perrin’s Defeat is light at the head of Strawberry Island, and it is a narrow reef, extends almost across the river, and the channel is a little iq'arer the bead of the island than it is over to the right liand shore, and it is a short break, deep water in the channel, but very narrow. It just comes tbrougli a little chute. The current is not so very swift; it is so deep water that you go into it with speed and carry your weight right through; if you stop and go slow it will buck. The cur- rent will overcome your boat and it will come back. Y^ou luive j>()t to l)()ttle the steam to make it. TJiat is a common (‘xi)i‘ession amoii^>- steamboat men. To bottle the steam is to (‘boke her down a little and get all the steam ii]) you can on the boiler, iiold the throttle. (Abst., y)p. 1524-5.) Q. Now, what amount of o})struction would that ))rocess enable you to overcome. Captain? Assume that vou lia'd a bout goings normally in tlie method you have described, and being overcome by a cun-ent she lays back and bottles tlie steam and shoots tlirougb. Take a boat that with lier ordi- nary power is ecpial to making liead against the seven inile current, would you be able ])y bottling the steam to overcome an eight mile current? A. Well, tliat is owing to tlie ])ower vonr engines liave got. (}. W ell, I say, take an engine wliicb witli lier ordinary load under ordinary conditions could just make bead against a seven mile current, could she by bottling the steam make the passage through a chute of that kind of eight miles an hour? A. No, sir, because if her limit of speed is seven miles an hour, that is all you can drive her, but if you have got slack water below she will come up with tliat speed and then her momentum will carry her through an eight mile current, yes, sir. Q. That is what I meant. (Abst., p. 1525.) A. Yes, her momentum. ‘^Perrin’s Defeat” is called that because he went up there with a steamboat and couldn’t get through. He took the boat and was going to Lewiston in too low water and he struck the mouth of the Snake River and the first rapid he came to he quit. That was in 1864. They never defeated me there. That never was known as ‘^Gray’s Defeat.” Q. There isn’t any other shoal or rapid known that way, is there? A. They have got one place there they call my defeat. W^elk I went up to a rapid above Lewiston once and broke my line, broke my capstan and had to back out. (Abst., ) The Court: — Is that the time you told us about this morn- ing? A. No, this was one trip when I was making a commer- cial trip up, and they called it ^‘Gray’s Defeat.” T broke everything I had. Asotin is just six miles above the mouth of the river. That was in 1904. T know ‘‘Five Mile Eapid.” That is just five miles from the mouth of the Snake River, four miles from Pasco. (Abst., pp. 1525-6.) The name is because of the distance from the mouth of the river, is where it gets its name. It is a short, very rough lookin.o', a very rough place. In low water the woter ])ours through a low lying reef and meets a reef extending fill out from tlio rigiit-liaud side eouiing down, also a dry reef on the lert-liaiid side. Tlien as you gel below there is a reef fair in tlie middle of the channel that sometimes goes dry and it throws the current at a direct almost a direct right angle, and it is a very short fall tliere, I think tliere is about eight feet in the fall in a lengtli of about 300 feet. WJien it becomes dry we do not stop running. We dodge into these holes and take our spars out and shove ourselves around. Spar- ring through, we only use the spars to push us out into the channel. You cannot get speed enough to steer. You go up the river and you come to Fish Hook Rapids. I have often run the Fish Hook Rapids. At the lower end of the Fish Hook Rapids there is a reef in the middle of the river with a shoal bar probably two feet of water in the channel off to the left. (Abst., p. 1526.) In the deepest channel, and you move off to the left and directly over to the right it goes around a point on the reef, and you follow up through the swift water and gradually draw out into the center. And from that for about a mile or a mile and a half it is one con- tinuous succession of reefs and shoals first on one side and then on the other. They are all submerged, just under the surface. But there is a channel there that by careful manip- ulation you handle a boat there. These submerged reefs break up the surface of the water into hillocks on the top of the stream and make waves. We call Fish Hook Rapid a mile and a half long. The fall there is in the lengths — we had one surveyor that made it 17 feet, and another that made ft 14 feet, and another that made it 23 feet, so you can form your own opinion. Q. AYell, by and by you get to Long Crossing Eapids, you remember those of course 1 A. Yes, sir. That is a shoal. That is the shoalest place on Snake Biver. It has an island (Abst., pp. 1526-7) on tlie left-hand side and the bar makes off diagonally across the river until from the foot of the island to where it joins another part on the other side is all of a mile. The water is pour- ing or dropping over this bar and we have to run very care- fully for a little bit of a sag in the bar. There is just one place where we can get through by manipulation. In the little sag it is about three feet deep, probably not in low water, there isn’t over two feet. There is probably six inches more in this sag than in the rest of it. We can run right over it when the water is up two feet. Part of it is made up of gravel just about the size of your two fists. It is ceiled the Cobble Stone Bar. (Abst., p. 1527.) The length or, the swift water In this Long Crossing Kapids is only probably 200 feet long, but the bar that runs across is probably about a mile long. Those Rescue Island Rapids are a number of basalt reefs that stand around promiscuously and it is pretty hard to work llii’ou^li lliejii. ^riiro'e is an island in the stream on the lett-hand side goino' iip, hut there is very little water goes behind it, most of it is on the right-hand side. ^Jdiis island, that is what they call the island which has very little water going behind it, that is a bed I'ock reef, basalt reef that ex- tends out and deflects the water right to the center of tlie island, and tliere is another i-eef that stands right out, right ])er])endiculai' and the ishuid (‘rosses on one side over to the other shore, and the rapids are scattered around con- sidera))ly. It is (luite a (langerous place. That Rescue Island Rapids (Abst., p. 1527) is between a (juarter and a lialf of a mile long. It lias derived the name from an accident. There was a ferry boat broke a wire line out at Palouse. The ferry turned over and the man that was running it got on top of the, out on the bottom of his boat and drifted down onto the island, and he had been there a day or two when a steamer came along and they launched a small boat and went out and got him. It is a very rough place in high water. It is not so far above that before you come to the Pine Tree Ra})ids. Pine Tree Rapids is veiw similar to Pasco, except you follow the islands. There are quite a number of islands and the water goes around the channel out into it, and the Government has blasted a channel through there which some of us follow now. When I went through it there had been no improvements. We went with the boat, the widest place we could find when we went through there with the sail-boat was 11 feet, and our boat was 12 feet wide. We had to get a line out ahead and twist her along and lift her up. (Abst., pp. 1527-8.) We got a line on the other side and twisted her around and in that way we worked her up. The trouble was to get a line out on the reefs that were submerged. The channet was pretty straight along the island, but it has been improved by the Government. In the early days in ’65 when the Colonel Wright used to carry freight from Wallula up to that island, that point there, and then there was a boat up above, and we would bring the freight above and then carry it across, make a portage of it and carry it across the island to the boat above. Q. Tjans-ship it on the new boat! A. Yes, sir, I don’t exactly remember how much depth there was at Pine Tree Rapids but there is quite a fall. From the hole in the wall to the foot oT the island it was about three- quarters of a mile. Q. Now you spoke of Palouse, there were two or three Palouses! A. There is the false Palouse and the Palouse Rapids. Q. Take the false Palouse! A. Narrow straight deep water, not very strong and you CyU) have to dodge a little, dodge tlie (‘iinaait a little to get llirougli. (Abst., ]). 1528.) Q. Tlieii you (‘oine to one called the ski ft bar. Do you re- ineiiiber the Skitf Bar Rapids? A. Skiff Iffiv, yes, all that re(piires is dodging the boul- ders. Q. There is rather a crooked channel there? A. You have to wind around and dodge the boulders, aver- age about five or six feet of water there. Q. Well, you get to the Palouse Rapids, how much of a rapid do you have there? A. Well, in high water the reef extends across the river, and it makes a very rough, boating whirl and it twists the boat there considerably and makes that very difficult for steering. The channel is about 80 feet wide, it was 80 feet wide and I had the Government Engineer take off about 40 feet last fall and widen it so in high water it would not be so rough. The Monumental Rapids, that is below Palouse, and it is a bar that extends right out on one side to the reef on the other, and the bar, the wash of the gravel from above encroaches on the reef and it makes it very difficult and dangerous. By the twisting from the bar you are (Abst., pp. 1528-9) liable to knock — on the reef you are liable to knock a hole in the boat or go on the bar and get ashore and it is probably a thou- sand feet from the shore, out to this narrow channel. You have to steady your boat and it is quite swift in low water. I have run those rapids, I could not tell you, two or three hundred times 1 have been over — thirty times in a season, that is in the extreme low water, but during the season I used to make a trip a week there for years. In the extreme low water you have to ]mt a line out and hitch it, pull your- self through with the line and the ca])stan. The Texas Rapids is a wild looking place but it is like some peo])le, it ain’t as dangerous as it looks. Tt is about a mile long. Tt is about a fifteen foot fall, I would judge that. In the head of the ra])ids the channel through there has reefs that divert (Abst., 1529) the channel and twist it around con- siderably, and then afterwards it goes over what they call Roll Rock. Then there are reefs or a low ridge in tlie cen- ter of the channel, and from the center you go from one side 'to the other and the water is (piite rough, but by cai'eful steering a man gets down without any trouble. Running up stream it is very strong, T have had to do — what do you call it double teaming, double leading over it. T have had to put out a part of the load and take it up, then come back and take the other part of it over. Tt would take going u]) stream to run through those Texas Ray^ids just about half an hour from the foot to the head, about a mile. Q. When you are making time up stream at the rate of Iietwecn three and four miles an liour, you did not make this ndle and a iialf or mile and a quarter, wliicliever it was? A. AVel], we was all day getting through the Texas Eapid, and the Pine Tree we was two days getting through. ii. You mean it has now been improved to such a degree that you are able to make it in from half an hour to an hour! A. Yes, sir. (^). But in its native condition it took you a day to go through it and two davs to go through the Pine Tree! (Abst., l)p. 1529-80.) A. Yes. (^). Do you remember Granite Point! A. Yes, sir. (^). Do you remember the rapids there! A. Yes, sir. (^). How much of a rapid was there at Granite Point! A. It was not dangerous at all, there are several granite boulders that stand out close to the channel and make a break, it is only dangerous in the night time. In low water those boulders there require close steering, that is all. The ivater breaks over the top of thepi. The water breaks over, they are right at the surface, of the water, there is plenty of water in the channel. In making those trips from time to time you strike these places where the water breaks over them and makes waves and hillocks. There are places in low water where the boulders stick out through the water. You can see something like that at every one of these rajjids where the boulders are present in low water. Q. When was the first trip made up the Columbia, up from Celilo to Lewiston that you know of! Abst., p. 1530.) A. We heard when we were living at the foot of Osoyoos Lake that a steamer had gone up the Snake River in 1860! Q. When was this first trip up there! A. 1861. Q. Do you know Captain White! A. Do i know Captain White! Q. Yes! A. Captain Lem White, I know him well. 0. He was the only man — A. He was the man that took the first boat up there. 0. Do you remember his boat, the Tonino! A. Yes, sir. Q. That is the boat, is it! A. Yes, sir. With reference to Lewiston, the Great Sho- shone Falls must be 400 miles south. I have never been there. They are on the Snake River. The main channel of the Snake River comes up from the south to Lewiston and turns oft to the northwest there. Away down somewhere on the line be- ur> tweon l(lalu) and Ulali am the Shoshone Falls. (Ahst., ]>. hm) Q. You speak of a report of yours as being embodied in the United States Fngineer’s Keport for 1884. I show you Uaptain, United States Fngineer’s Ileport under tiie liead- ing of Report of Captain Powell, Appendix (^)4, Improve- nient of the Upper Columbia and Snake Rivers, Oregon and AVashington Territory, Annual Report, Chief of Engineers United States Army, Part III for 1884. Look at that and tell us whether this is the report? This is the report beginning on page, the particular one I have directed your attention to beginning on page 2229 and you have now turned over to page 2243. A. This appears to be dated February 26, 1884, and prob- ably — I made mv examination of reconnoissance in June and July, 1884, it probably was not in there. (Abst., pp. 1530-1.) Q. You spoke of being employed in ’67 by the United States Engineer to survey a rapids in the Snake? A. In the Columbia. y. In the Columbia. AVho was the engineer uncker whom you took employment at that time. Captain? A. Colonel Williamson, Colonel R. S. Williamson was in charge of the Pacific Coast as Chief Engineer and Lieu- tenant Heuer wms in charge of the survey work. Lieutenant W. H. Heuer. Q. Y^ou spoke of a number of trips that you made on the YVilliamette River? A. Y"es, sir. I was runniug on the AVilliamette River in 1875, and last in the spring of ’78. The rapids on the Wil- liamette River; — well, there is the Clackamas Rapids, at Oregon City, where the old P. T. Company had built a dam across a slough in order to throw the water over a gravel bar and allow their boats to go up. This was on the left bank they built the dam. The channel off from the mouth of the Clackamas River filled up and they hi owed out, hi owed a hole in the dam on the left bank. YYe follow through close to the shore to the foot of the island and follow up, run up the Abst., pp. 1531-32) tail race up to the dam and go through the dam that is broken. When the water is at low tide you have to put out a line up to the point of rock ahead and line through. Then after you get in that you are in a pool and you go around up past Oregon City and go into the Oregon City locks. I was never up there before the locks were built there at Oregon City. T was up there in 1864, hold on — T think it was 1865 I was up there on a trip. I don’t know whether there had been any improvements, I was just on an excursion and I didn’t pay any attention to the improvements. There were no locks there. judgment, there is a})out between tliree and four feet of a fall, in the length of the rapids, about half a mile. There is quite a shoal ])laee over the bar until they broke a hole in the ar- tifieial dam. After that there was plenty of water. (Abst., p. 1582.) When you get through there, there isn’t rmieli water there, there is no water for steamboats, there is probably about two feet of water over the natural dam. But this artificial dam that they put in and took out again, left the hole in it, there is about 6 feet of water there. That had been done to throw all the water into this nat- ural channel. They wanted to straighten it but they found they had to go around, it is a crooked channel. I just made one trip up there wuth a boat. I did not know which way they went when the water was high, I paid no at- tention. That was a steamboat in 1865 I believe. I was last on the river during the period from 1875, but the steamboats had gone on through there during that period. (Abst., pp. 1582-3.) The Yamhill River was navigable just about two months in the year. Dayton is the low water head of navigation where tliey run, where the bar is formed by the emptying of the Yamhill, and for about two months in the year we run, or about one month of the year we run to McMinnville. I used to run from Portland every other day to Dayton in extreme low water, for several months. Then we ran as far as La- Fayette. (Abst., 1533.) The mouth of the river, the mouth of the Yamhill River there was about three feet and a half of water, that is at times it falls off and is shallower and then they have got to dredge it, put a steamboat in there and dredge it with the wheel. The current of the Williamette running by the Yamhill wmuld stop the sediment there. Then they would tie a steamboat in there awhile and work her wheel and that wheel digs it out. Just by revolving the power- wheel that would stir it up and the wuater would carry it off. (Abst., p. 1533.) The Stikine River in Alaska, the lower part is sand and drifts there^ a great many, a great deal of trees and logs. In ’77 I left Fort Wrangel on the 28th of April and ran to Glenora the first of May, following the ice up. As the ice melted and got out of the way we kept on going. It is 150 miles up there. The delta of the river is four or five miles, but just the chan- nel that we go through is probably about three feet wide. There are several islands formed all the way, and at one place up at what we call Hudson Bay Island, or Hudson Bav flats, the river is continually changing going up, never i>o up oil ilio same (‘liaiiiiol. It is like a drift and a liol(‘, tin? gravel and sand will lodge and then it will (tliange eliarinel and go around another way and yon have got to [)i(;k yonr ehaniiel. Then yon get ii}) to the ('anon whichi is about HO miles np; the river ('haiiges above, but there is not so mueh sand and it is more })ernianent. (Al)st., 1534.) It lias n i*o('ky bottom wlien yon get nj) and lioniders, yes, plenty of them. Well, the shoalest stretch of water when yon got up to the honider on that run was about between four and five feet. I built two boats for that in the spring of 1898, for a Klon- dike Mining, Trading and Transportation Company. I went up in 1877 first, some twenty years before tiiat. The boat 1 took up there on the first trip in 1877 was about 125 feet Jong and 24 feet beam. She drew about 22 inches Jight. She had a pair of 14 inch cylinders 4 foot stroke. I do not know the ex- act horse-power. The Stikine Biver is continuous rapids. (Abst., p. 1534.) The Grand Rapids are np about 29 miles the other side of Glenora, the river takes a turn. Well, in com- ing down the river strikes a sandstone bluff and comes on down a little further about a quarter of a mile, following around the island bar — there has been a glacier off on the south side and it gradually, the wash from the glacier is gradually filling in. Well, that fills in and when the water, there is a hard boulder bar that it is hard to wash, don’t wash, has formed an ob- struction so that it throws the water right back under this moraine of the glacier and it turns (piick to the left and then goes right in under the gravel and hank filled with sand and gravel and boulders. It makes a shar]) turn into it and when it strikes that then turns it hack to the right. It makes almost a Z with a sliai*]) corner and you would have to dro]) your boat just as ('lose to tli(‘ bar r.s you can and let Iku* hang on this bar until you pull her arouird a('r()ss the bar so you ('an go down and go off, go over on the other bar and ])ack that way. The current tliere is about twelve miles an hour. No boat ever went tlirongii without a line tlunx^. (Abst., p}). 1534-5.) I think the Ih'iest Rapids is a little the strongest, hut it is the dee])est and the water, we get moi'e ])ower than the Stikine, the dee])er the water the inoi'c ])()wer it has got. The Stikine is shallow. Where that comes around the Z on tlu^ Stikine at the npi)er coimer it is ])r()l)ahly eight oi* ten feet deep, then as we get down to the next corner with the water on the right, it goes over towards the island and it is gravel there about ‘I feet decg), and from the point, ()V(‘r right in the corner it is pro])al)ly six feet dee]) and right across tlien as it goes down right along the side of the per- pendicular hank, per])endi(udar to the ('ut there the water is ten or twelve feet dee]). That is the Grand Rapids of th(‘ Stikine. There are quite a number of shoals up above there. You have to wind around through il to i»() up the eliariiiel. Tlien you Jiuike several very short turns. You go over next to the right-hand bank and then follow around until you are finally (Ai)st., p. 1535) at the left- hand bank and work between the islands. After you get through the sand, it gets lower down to the gravel, and you have to follow along very close to the growing trees. The trees almost overhang and you have to look out for them or they will take off your upper works. You have got to handle her very carefully for the snoal water or the boat will run, what we call run, and then just as you get up to the head it is very shoal. If she turns off' she will run ashore, cannot turn around. It aint wide enough to turnaround, she would go ashore. I liave done that two or three times myself, get over there and the water would catch her and throw her onto the bank. Then you have got to spar and work off the little shoals, if you are shoal aft more than it is forward, you have got to line out and pull her off into the current. This Grand Eapids Shoal above there, makes a ridge in (Abst., 1535) the river from below the foot of Grand Rapids to above the island shoals, probably four miles. I don’t think it falls as much as the Priest Rapid, (which he calls 12 miles an hour, p. 3960, supra) but much more than the Palouse (it has a fall of four feet to the mile according to Engineer’s Report of 1884.) In ’77 my boat was carrying supplies to the miners, carrying mules and animals up in there to the Cascera mines. They were mining gold there in ’77 and had been mining for several years. Q. That goes clear up to White Horse? A. No, sir, that is a different river. (Abst., pp. 1535-6.) Q. That is a different river. Have you ever taken a boat , up to White Horse on the Yukon? A. On the Yukon, yes, sir. Q. Well, now then, what is the condition of the Yukon up there at White Horse? A. Well, it is the Yukon it is considered, they call it now the head waters of the Yukon at White Horse, but up there they call it Fifty Mile River. It empties in about 30 miles below White Horse, empties into Lake La Barge and Lake La Barge empties into Thirty Mile River and the Thirty Mile River empties into the Hootalinqiia and the Hootalinqua joins the Pellee at Selkirk and makes the Yukon. Take the Fifty Mile River where it goes into the lake, the width of the Fifty Mile River near its mouth is probably 200 feet or 250. The width of the channel in which the boats run where the water is deep enough for a boat is probably all the way from 150 to the full width of the channel, the full width of the river. At the mouth after you get into the river there is not less than six feet, except in one place, and after you get out into the 1 ) 4 !) lak(‘ ilien it shoals out and is tlunx^ shoal and in low wat(;r in the lake there is about two 1‘eet and a halt* ol* water there. (Ahst., }). 15d().) 44ie lake was really only a broadening of the river. The lake is dO miles long and al)out three or four miles wide. It comes down through and out into the Fifty Mile Eiver below. The boats we built did not go up there, they were built in Victoila — Westminster and finished in Van- couver on the Stikine Eiver. They were going to take freight, they were trying to establish an all Canadian route from Fort Wrangel to Glenora or Telegraph Creek and then up by Teslin Lake and through the Hootalinqua Eiver and in that way get into the Yukon country at Dawson. They were for use in connection with supplying the mines. I came to the AVhite Horse ?tapids in October, 1899. I staid there just long enough to get aboard of train. Q. What has been your experience as a real estate man. Captain! (Abst., p. 1536.) A. Well, I have made a whole lot of money at it and I spent it as fast as I got it. Q. When did you first go into the real estate business! A. When I first bought — the first foot I ever owned in my life was when I went to establish a transfer of the North- ern Pacific across the Columbia Eiver at Pasco. I had to buy a piece of land to live on, and after I got a little piece I wanted more, and I kept on buying more and one time I owned several thousand acres. T still own a few pieces. There was a period when I left the business of steamboat- ing and followed the business of real estate. While I was in the emjdoy of the ! Abst., ])]). 1536-7) Northern Pacific, I was looking out for their steaml)oat interests and I was carrying on a real estate busiuess for myself and acting as local agent for the Northern Pa( ifi^* Land (k)m])any; that was from about 1887 to 1892. T was ca})tain of a steamboat at the same time, and doing real estate business for myself and for the com- ])any and was county commissioner and T don’t know what all. I was actually operating, I was captain of a transfer 'boat which was carrying cars across the river, a ferry boat across the river. It was not necessary foi* me to be on the boat. I was looking after the boat and this (Abst., p. 1537) was outside, incidental, although T was here in ’92, I was in Chicago and I was in Cincinnati a couple of months. I came here in July, ’92, and left here on the 27th of December, ’92, and went home. T was sick in ’93, in the hospital for three months and a half. In ’94 there was an immense flood up in the Columbia Eiver and T took charge of running the steamer for the Northern Pacific Eailroad Company from Ainsworth to Wallula to connect the two roads which were washed out, for about six weeks. And T was around home there a good (leal of the time. Then in ’95, I of (‘ourse like everybody else, 1 went broke in ’95, and in ’95 I had to go to work. 1 com- nieiK^ed going round, L think it was in ’95, it was in ’95 I brought the steamer Norma down through the Snake River (kinon. That is between Huntington and Lewiston. Hunt- • ington is at the end of where the Oregon Short Line and the (). R. (fc N. join. That is uj) above on the (Abst., p. 1537) Snake River to the south. We went up 250 miles. The canon is between Huntington and J^ewiston. The canon proper is about four miles long. Q. You say you made that trip in 1895? A. Yes, sir, I believe tliat was the year. Q. What was the boat? A. Steamer Norma. 1 went over the rapids or Cascades, Copper Creek 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 with the current. The current has gone through there and the drift (Abst., pp. 1537-8) has disintegrated the rock until a part of the current runs under the cliff. As you pitch over this cliff it seems as though the boat were going to mash 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 ccyurse the sup- porting water will hold it up at an angle probably — ten de- grees, 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 did not know where we were going. (Abst., p. 1538.) We found c|uite a number, all the way from 10 to 15 feet falls, all the way down. Tliere 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 lying just as steep as they conk! lay and the water was going down there, and I assumed tliere 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 ]hiot 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 the water there was about 70 or 80 feet wide. I saw just the banks, (Abst., p. 1538) fallen in, the rocks, the granite boulders that were lying there all the way from the size of your head to 0 feet in diameter. That was located below the Copper Ledge Falls and 60 miles above Salmon River. AYe kept on encountering rapids. Finally we gotA^ the mouth of the Imhaha, the Imhaha River where the Fu- reka and Fargo mines are Ux^aied now. 'TlKna; we foiind very diOieult ra})ids. It })onred tlirongli, these granite boulders liad fallen in and there was — a reef eoines this way on this side (indieating) and there is a basalt reef and granite boulders on that (indieating) at right angles to the hank of the river. And tlien at a ])oint shifting out there, tliey had been shoved out there by a waters])out and washed down and forced it right (Abst., p]). 1538-9) 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 gel 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 just backed right off and upset a little way below. (Abst., p. 1539.) The Shee]) Rock projects out into the stream at that point making rather a narrow stone cliff there. The Priest Rapids is stronger than that, it (Sheep Rock Ra])ids) is a little bit stronger than Palouse. It lias got a cliff 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 throw^s out on the right side and there is a liar there ])robably bO or 70 acres. After it ]iasses there its speed is about 7 or 8 miles an hour. (Abst., ]i. 1539.) I think it is fifty miles fi'om the mouth of the Salmon Kiver to Lewiston. For the fifty miles down stream it takes about two hours or two hours and ten minutes to run the distance. To go u]) stream it takes about 8 hours. 1 have gone up the Salmon River to the mouth of the Imhaha. That is as far as they ever have been. In ’04 I was on a boat that was sent u]) there by the (). T. N. (h)m])any and tried to get through this Snake River canon and we got u|) about 25 miles above Salmon river and struck one of the bars that went across the river and knocked 14 feet of her bow off and we turned around and came back. (Abst., ]). 1539.) 1904 I believe it was when I quit the railroad, quit the company and went onto the Snake River, and was running up until December, 1900. 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. (j). When was it you took up the butcher business? A. That was in 73 and ’4. (^. That is what ] 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 vim up Clear Water in 1863. It joins the Snake at Lew- iston, Idaho, conies in from tlie (Abst., p. 1539-40) 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. And having a railroad they don’t use the river? 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 long side of it? A. It is possible to take some boats where it is not — ivould not be practicable. ^ Q. Meaning by that now it would not pay? A. Where it ivon’t pay. Q. Yes, and you mean to be understood in that sense when you speak of streams being practically navigable or prac- tically not navigable? A. Yes. Q. And then its character ivould vary in that respect with the development of the country? (Abst., p. 1540.) 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 Pasco and Celilo. (Abst., pp. 1540-1.) In the whole dis- 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, eight or ten. ' I have run that fall probably two or three thousand times. I know the Umatilla Eapids, upper and lower. They are just about at the town of Umatilla, on the Columbia Eiver, between Pasco and Celilo. (Abst., 1540-1.) In the whole dis- tance of two and a half miles there is a fall there at the upper Umatilla of 17 feet. We measured it at tlie time I was mak- ing the soimdiiigs and surveys. I iiave run both a ways. \ iiave run up iu liigli water and in low water botli ways. 1 took through there a hat bottom light draught stern wheel steamboat. The last boat I was running tliere drew 29 inches light. The boats, the average boat for the Columbia liiver draws about 30 inches light, when loaded with a load she would draw from 41 to 6 feet, and even brought down as much as 7 feet. I assisted in the survey for the purpose of improving the channel there at the Umatilla Rapids. Q. Is that where you said there was a current of twelve miles an hour? A. Yes, sir. (Abst., p. 1541.) 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 a mossy growth that grows in bunches right out into the stream. It grows right out in the islands, innumerable islands of ice. And the chan- nels are, if a man knows his business — they are shifting con- siderably. After you get to the ramparts, then you have about 100 miles of rock, where its channel is defined and re- mains 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 Ramparts, 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 to follow in one channel where it runs off by the island, and you have (Abst., pp. 1541-21 got to run the channel that you can hnd 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, andjhat is not — all filled in between with a heavy growth of cotton wood and even fir and tamarack growing there, and all those innumerable channels go through there, so that is the only place that I hired a pilot when I 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 narrowest 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 channel, it is reasonably perma- nent. The bed of it, the bed of the channel is of hard rocks and you have no trouble at all in (Abst., p. 1542) finding the ('liaimol there;. It is lined with glaciers going down on both sides ol* tlie river and there are moraines running in on botli sides above the river on tlie bank all the way up, and all the way we saw boulders sticking up out of tlie 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 ])laces where, at steamboat bar they liave quite a number of islands there tliat 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 they have crowded iq) there and you can go back and come up there in the sum- mer time where the water has waslied (Abst., p. 1542) out and you can see the ice with the trees growing on top of them. 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 Horse 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 the stream. The stream is lashed into ferment all the way down. There was a boat on Lake Marsh, which crosses over to Caribou, where there have been boats run- ning. Q. The boats were actually run on the rapids coming down? (Abst., pp. 1542-3.) 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 Willie 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 foot boat carried about 400 ton up stream, she had about A 4 foot draught. (Abst., p. 1543.) The 100 foot boat drew about the same amount. The White Horse Rapids proper are about a mile long. I have never been on the Felly. 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 my early batteaux ex- perience. In a batteau, we^took the line in (Abst., p. 1543) a batteau right up to the bank and the men jump out and go along 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 alongside 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 practice in common use on the Snake and Clearwater and everywhere in the swift water streams, and it is still in common ns(‘ on tli(‘ Snak(i. VVticr- ever a steamboat can they put ont a line, and then they handle it with tlie (*apstan. On the rapids above; L(;wiston there never has l)een a boat went np through there; that was inn without a line. (Abst., p. Ibdd.) Theise tieiats run on tlie Snake ein their eiwn ])Ower in still water wlien carrying the oreiinary load of freight and abeiut 12 mile boats. Com- ing down the stream seimetimes on the Snake River we would go more than twice that fast. Weil, I have considered tliat sometimes 1 went 35 miles an hour, but I wouldn’t swear to it. Q. When did you arrive in Chicago on this occasion, Cap- tain? A. Saturday night at 10 :05. Q. And you went down to the Des Plaines River yester- day? A. Yes, sir. (Abst., pp. 1543-4.) Q. On Sunday? A. Yes, sir. Q. Who were, with you? A. There was Mr. Logan, Mr. Munroe and Mr. Norton. We left Chicago, Sunday afternoon and went down with this party between two and three o’clock. We got back here about half past eight, I think it was; somewhere close to that. I didn’t look at my watch. We came back by rail from Joliet and went by rail to Joliet. We used an automobile from there, made the trip from Joliet down to the site of this proposed dam and back again. (Abst., p. 1544.) Q. You came on here for the purpose of giving testimony in this case? A. 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 hy Mr. Scott. Q. And you have traveled all over these rivers with Air. Starr and noted their difficulty, and having that in mind, are you still of the opinion that the Des Plaines River is not safely navigable for boats? A. T am, sir. Q. You were asked whether you referred to navigability as compared to the use of i-ailroads, when you said the Des Plaines River was not in your opinion navigable. Did you mean that its navigation would not be commercially practi- cable in competition with railroads, or that it was not a nav- igable stream? (Objection; not proper on re-direct; overruled.) (Abst., p. 1544.) A. It is most certainly not practicable in competition with railroads, and I don’t think it would-be practicable in compe- tition with wagons. Mr. Scott? Having had your mind refreshed with all the difficulties that you have gone over, is it still your opinion that you could not safely take boats up and down? A. Yes, sir, that is my opinion. At Squally Hook in ex- treme 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 turns off, there is only about four feet of water. (Abst., pp. 1544-5.) The character of the bed there is broken rock and gravel. Well, it is boulders. Q. Now, the upi3er 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 innumeraible number of those channels that are much shal- lower than the one that we followed. The one we followed at the extreme low water in our navigation had about five feet of water. (Abst., p. 1545.) The Yukon channel was probably 300 feet wide and about 5 feet deep, clear of boulders in the channel. The White Horse Eapids are between 400 and 500 feet in width. It is not shallow. When I speak qf dqpth I mean depth in the clear. The channel in the Stikine at the place where the trees come over, from bank to bank, is about 400 feet, but the channel probably where the boats could run, is not over 75 feet. (Abst., p. 15*45.) Its depth was about 3^ feet and its bed was small gravel. At five mile rapids there was a dry reef. There is no place in the channel proper where there is less than eight feet At Fish Hook Eapids there was 2 feet of water on the left and the deepest water was on the right, about 5^ to 6 feet. The long crossing rapids was the shoalest place in the Snake Eiver and the depth of channel there at lowest depth was thirty inches. (Abst., p. 1545.) Q. And three feet at the channel? A. Two feet and a half at dead low water. Q. Yes. Now, the Eescue Island you said was basalt reef. What were the depths at the Eescue Island Eapid? A. The reefs at low water protrude from the surface, but by going above, see-sawing down and going up and see-saw- ing down again, we got through the channel, and there was ])robably six or eight feet of water. False Faloiise 1 never saw less tlian eight feet of water. Q. At Falouse Jiapids itself, what is the depth of the water 1 A. Unknown. Q. Very deep? A. Very deep. In very low water at the upper end of Pa- louse 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 simi- lar 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? (Abst., pp. 1545-6.) 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. (Abst., p. 1546.) Q. Now, Priest Rapids, what is the effect of high and me- dium 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 turbu- lent. 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 navigal)le ])ut it is only navigable at medium and high stage. Medium and high stage. At low water it pours right into a sluice which is probably a hun- dred feet wide and the whole of the river goes right through that one sluice, so I couldn’t tell al)out the slope; it is impos- sible for a boat to climb. (Abst., p. 1546.) 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 steaml)oat has to go through becomes almost dry and the rocks stick out of the water. The water percolates through between innumerable channels that are not wide enough for a steamboat to go through. Q. How do you get the steamboat through! A. You don’t get through there in low water. I wasn’t at the Chelan Rapids at extreme low water; when (m 1 was lli(‘r(‘, there was about S feet of water. (Abst., pp. 154G- 1547.) (^). And on that trip you passed over the rapids near Mc- Lauglilin’s Falls; wliat was tlie de})tli of the water there r A. That I eouldn’t say; we hgiired that tliere was about three feet and a half of water. (j). JIow much ? A. About three and a half feet. (^). .Hills’ Bar, you said the river was GOO feet wide, fifty or sixty feet ])etween rocks, a cliannel of 50 or GO feet; what was the depth of the river at Hill’s Bar! A. 1 was very young at that time and L don’t remem))er. Q. Have you any distinct recollection as to the character of that bar at all? A. L recollect having seen the rocks breaking in all direc- tions and that we followed a certain channel. How deep it was, I don’t know. Q. You s])oke of going in the Norma.” Now, turning to the Snake Biver, what year was it you went down with the Norma from Huntington to Lewiston? (Abst., p. 1547.) A. I l)elieve 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. (Objection; not proper on re-direct to the use of ex- traneous documents as a method of elaborating the tes- timony of the witness; overruled.) Mr. Scott: — (Reading) “In 1892, $20,000 and in 1894 $25,000 were, as before referred to, appropriated for the im- ])rovement of the Snake from Huntington bridge down to the Seven Devils mining district. Considerable work was done in freeing the river from obstructions in this locality; consid- erable x)lant was collected, including drills, scows, tools, etc., and the work of removing ledge rock and boulders was carried on for several reasons. 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. (Abst., ]>]n 1547-8.) In 189G all the Government plant in this portion of the river was sold and the river im- provement 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. T went from Huntington to Seven Devils and back to Hunt- ingtoii, and then she laid ili(‘re until the next year araJ tlani L took her down to Lewiston. xMr. SVott: - That was the eoinpleti^ history of lun- exj)eri- enee on that [)art of the river ? A. Yes, sir. (Abst., ]). 1548.) Rc-cross Exaimnaflon. by Mr. Starr. They are making some i)i'ogress 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 River where there are boats below and boats above, but the natural bar- rier at The Dalles is so great that there isn’t any naviga- tion 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! (Abst., p. 1548.) A. No, sir, there is no such place as that. It is possible to take a steamboat through the Snake River canon, but there are no boats above since the Norma was brought down; [ don’t know l)ut what there may l)e one. The Okanogen Lake is being navigated in British Columbia. The Okanogen River is being repaired l)y the (jovernment so that boats can be taken up there from the Columbia River. They expect to run there about three months in the year. (Abst., ])p. 1548-9.y Q. Reading from this same re]:>ort from which counsel read to you, a statement on the same page, ‘‘The U])])er Co- lumbia and Snake Rivers having formed one of the most im- portant highways of travel in the region in early days be- fore the railroads were com])leted, C^ongress as early as 1872 made ap])ropi-iations for the ini])rovement of the (k:>lumbia, and in 187(1 the Snake was added to the ])lan of improvement.” Do you acce])t the statement as correct that the ITi)])er (ki- lumbia and Snake Rivers formed one- of the most im])ortant highways of ti'avel in the region in the early days l)efore the railroads wei'e (‘ompleted. (Al)st., p. 1549.) The Witness: What is the (juestion! Mr. Starr: I simply put the ouestion 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 rail wavs have been developed on each side of it, the rivers do not constitute the main highway of travels! A. TJiey do not, but we are making every effort to make tliem so. Q. Yoxi_are trying to liold on to them all that you can? A. Yes, sir, trying to develop them. Our State appro- priated $125,000 for the improvement of the Snake last year. (Ahst., ]). 1549.) Re-re-direct Examination hy Mr. Scott. Q. Assuming, Captain, the Columbia and Snake consti- tuted 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. (^. Did you ever know a stream that was capable of being navigated that was not navigated? A. I never did. Conclusion feom the Columbia. and Snake. We beg to refer to the condensed table of the U. S. Engineers^ data and of Gray’s testimony on these rivers given in the brief. We submit that they demonstrate that the ^^difficulties” in the Des Plaines so exaggerated and dwelt upon by the defense are as noth- ing compared with those of the Columbia and Snake — that Gray’s testimony shows that the Des Plaines could be navigated with far less trouble; and that Gray’s test was that of profit ; — that a river was not navigable if ‘Gt won’t pay” — and that its character varies as the country developes and other means of transportation come in; — that a river is navigable until a railroad is built alongside, and then it ceases to be navigable; — and that he used the term navigable in this sense; — and we submit that this is not the legal meaning of the term. LEGAL DEFINITION OF A NAVIGADT.E STREAM. I. What is a navigable stream, according to the law of Illinois? The latest decisions atford the most complete definitions, viz. : Schulte V. Warren, 218 111., 108, and People V. Board of Supervisors, 122 111. App., 40. In Schulte v. Warren, 218 111., 108, the rule is stated thus : ^‘Some years ago a lock and dam was built at LaGrange, below the lands, which raised the water of the lake about eighteen inches, and afterwmrds the sanitary district canal was opened, raising the water three or four feet more, so that the natural stage of the water in the river is about five feet higher than in its natural condition. * * * ‘^Appellant did not lose his title to the lands by their sub- mergence, and we do not understand counsel for appellees to claim that he did, except as against a supposed public right of navigation, hunting and fishery. The question whether the public acquired any right of navigation, or any other right, in the waters overfiowing the lands of appellant is conceded to depend upon the question whether such waters are navigable, and on that question appellant insists that they are not navi- gable in fact, while appellees insist tliat they are * * * In this State the public have an easement for the purpose of navigation in waters which are navigable in fact, regardless of the ownership of the soil, and the question whether these waters are navigable depends upon the question whether theif are of sufficient depth to afford, a channel for useful commerce. * * * The rule stated by Lord Hale in his treatise de jure maris, that a stream to be navigable must furnish ‘a common passage for the king’s people,’ must be ^of common or pub- lic use for the carriage of boats and lighters,’ must be capa- ble of bearing up and floating vessels for the transportation of property conducted by the agency of man, was approved. {Joliet and Chicago Railroad Co. v. llealy, 94 111., 41G.) ^ W stream is navigalhe in fact only where it affords a chan- nel for useful commerce and of practical utility to the jmblic as such. * * * It is not necessary that the waters should be navigable in all their parts in order that the public may have a of navigation wliei-e tlie waters are dee]) enou^li and Ht tor sueli use. The evidenee sufheiently sliows that there are (‘onsideraTle spaces on these lands ])erinanently snhinerged to siK'li a deptli tliat there is a I'ight of navigation in tlie public.” PI). 118, 119 and 120. In Peojde v. Ihxird of Supervisors, 122 111. App., 40, the rule is stated thus: ‘‘The navigable waters of the United States are those wliicli, whether fresh or salt, form in their ordinary conditions, by themselves, or l)y uniting with otlier waters, a continued higli- way over which commerce is, or may be carried on, witli other States or foreign countries in the customary modes in whicli ■such commerce is conducted by water.” p. 43. The early case of the People v. The City of St. Louis (5 Gilman, 351) was a bill by the sovereign State to protect its navigable high way in the narrow leftdiand channel of the Mississippi at Bloody Island, St. Clair Co., from obstruction by a crib and dam. The (*onrt said : “The principal channel of the river, with about five-eighths of the water, passes west of Bloody Island; and this channel is used for all ordinary purposes of navigation, passing up and down the river; while the eastern channel can only be navi- gated with a small class of steamboats, and with flat boats, keel boats and barges; although in a very high stage of water, it is safe for the very largest class of boats ; and in a very low stage, it is hardly navigable at all, but is used for mooring l)oats. Although the Mississippi Kiver is not what is termed by the Common Law a navigable stream, yet it is so, in fact, and has been declared to be so, and recognized as such by nu- merous treaties and many public laws. * * “The facts agreed upon show, that for all crafts which usually navigate this river, except steamboats, and even for a small class of these, this channel is navigable at an ordinary stage of water. Not many years since, all the commerce of that river was carried on in boats which might navigate this channel as well as the other, and such is the case now to a very considerable extent. This channel affords much better navi- gation than the best water in many places in the Illinois and Ohio Rivers, and probably many other of the tributaries of the Mississippi, which are confessedly yniblic highways. It would be absurd to hold that no part of the river is navigable except where the largest class of boats can pass. A stream may be navigable for one class of boats, and not for another. Should we hold that this part of the river is not navigable, because all classes of boats cannot pass there, then by the same rule should we have to determine that those parts of the river, where the wator is so sii’oiii*’ lliai ilioy (aui only l)(‘ navi^'al(‘(l l)y 'sl<*ani- boats, are not navigable. One is (inl/if (‘(ipahle of heifi// mivi- (](ited 1)1/ oKe (‘loss of hoots, ond the other f)f/ (mother. Tin* only Feasible and praetieable rule is, to bold all parts of the river navigable wbi('b may be navigated t)j/ any class of vessels hohituolly in use on the river. “We eaimot entertain a donl)t that the eastern ebannel of tlie Mississi])pi River between Bloody Island and the main land, is, in fact, and within the meaning of the law, navigable, and a part of the common highway. * * j)p. 368, 372, 373. A. But the law of Illinois itself, on this subject, has undergone con- siderable change. At an early date the tide water test was adopted. TIDE WATEE TEST. The tide water test was expressly loid doicn in (^fississipiii 1842 River) (Tresp. Qu. clause: Cutting trees from an island), Middleton v. Pritchard, 3 Scam., 510. 1868 (Ohio River) (Quo warranto on right of private wharf to take toll), Ensminqer v. People ex rel City of Cairo, 47 111., 384. 1872 (Rock River) (Replevin for stone taken from bed of river; right of property sustained), Braxon v. Bressler, 64 111., 488, 489. (Tide water test ex])ressly reaffirmed and court refuse to overrule Middleton v. Pritchard.) 1876 (Mississip])i River) (Ejectment for und. half of Island; title of plff. sustained), Houck v. Yates, 81 111., 179. 1887 (Meridosia Lake, Morgan Co., adjoining Illinois River, ejectment: Halfway Case) (Title held to stop at shores as in lakes — tide water test re])eated and navigability in fact stated). Trustees of Schools v. Schroll, 120 111., 509. 1887 (Mississi])pi River) (Injunction to restrain collection of taxes on bridge. Bill dismissed.* Right of City to tax upheld). St. Louis B rid ye Co. v. East St. Louis, 121 111., 238, is a mid- ivay case, stating that Mississi])pi is navigable in fact but not at Common Law, and following the Common Imw cases in language. B. The tide water test was tacitly disreya rded , but no new test for- mally suhstituted in 1865 (Illinois River) (Action by navigator foi* injury by bridge as an obstruction: right to reasonable bridging use u])hel(l). Illinois River Packad Co. v. Peoria B rid ye Ass’n, 38 III., 467. (;(;4 18f)8 (Clii(*a^o Uiver) (Bill to restrain repair of wliarf as a nui- saruie. Bill disniissed. Ki^lit to wliarf uplield). City of Chicayo v. Lafiin, 4-1) TIL, 177. 1869. (Cdiicago Kiver) (Action for violation of City Ordinance injuring a bridge: right to bridge the stream upheld). City of Chicago v. McGinn, 51 111., 66-72. 1869 (Chicago River) (Damages by riparian owner from con- struction of R. R. bridge: right of action sustained). Chicago S Pacific N. Co. v. Stein, 75 111., 41-45. 1881 (Calumet River) held navigable: (Tresp. Qu. claus. by ri- parian owner for taking ice from the river. Property right of riparian owner upheld.) W ashington Ice Co. v. Shortall, 101 111., 46, 52. 1893 (Chicago River) held navigable: (Petition by City to con- demn land to widen South Branch. Approval of Sec’y of War held prerequisite). City of Chicago v. Laiv, 144 111., 569, 576. C. The neiv test of navigability in fact is expressly laid down in 3848 People v. St. Louis, 10 111., 5 Gilm.), 351, 368 and 373. 1879 (Healy Slough case: held not a stream at all.) Joliet S Chi. R. Co. v. Healy, 94 111., 416, 419. Affirmed 116 U. S., 191. 1891 (Ogden Slip: Artificial waterway, held navigable.) Peti- tion to condemn in order to widen Arden Ave. : held the slip could not be filled up. Ligare v. Chi., M. S N. R. Co.,^ 139 111., 46, 66. On second trial and fuller evidence, Ogden slip held not navigable. It teas not a stream and had no current. 166 111., 249. 1905 (Rock River) (Petition for mandamus to compel County Board to pay half cost of bridge.) Petition dismissed below for lack of averment that Sec’y of War had approved; held ■ erroneous. Petition held sufficient failure to obtain permit if necessary held a default by the County by which it could not profit. Question of navigability held not necessarily involved, and if raised by answer should be tried by jury. People V. Board of Supervisors, 122 111. App., 40. 1905 (Clear Lake and Mud Lake — arms of Illinois River. Bill for injunction against hunting over lands under. These are held rendered navigable by addition of water by LaGrange dam in Illinois River, and by Sanitary District of Chicago.) Injunction against hunting sustained. Tide water test ex- pressly rejected. Schulte V. Warren, 218 II!., 108. Most ot* these ('as(‘s, and otlaa- ('as(‘s whieli, willioiil dcdiniliori, ap- ply these rules, deal with (pieslions ol* laud title iu th(‘ h(;d of the strcuiu, or other (piestious, to wliicdi the (juestiou of navigability is iiieideiital. In the land title eases, this court arrived at the same result, whether the stream be navigable or not. Tlie number of Illinois eases in which the question of navigability is the primary and controlling question is small. D. The actual Illinois adjudications of ivliat constitutes a navigable stream, as the primary and controlling question, are therefore few, and the most directly in point is that of People v. St. Louis in 5 Gil- man. The court then consisted of Caton, C. J., and Justices Tkeat and Trumbull. We do not overlook the dictum in Ilibbbard v. Bell, 54 111., 110. (1870.) {Big Creek in Pulaski County.) This was a bill in chan- cery to restrain defendant from felling trees into Big Creek. ‘^The case, as presented by the pleadings, is a novel one, and the claim of the defendant in error, which was sanctioned by the circuit court, is of a character so extraordinary as to chal- lenge the most careful investigation. ‘‘The facts are briefly these: The complainant in the bill, the defendant in error here, is the owner of certain lots or blocks of ground in the Town of Ullin, in Pulaski County, which front on the Biver Cache, and on which are erected saw mills, planing mills and lumber yard, of which he is the owner. These structures are four miles below the mouth of a small stream called Big Creek. On this creek, commencing two miles above its junction with the Cache Biver, and in Union County, the defendant, in the bill of complaint, plaintiff iu error here, is the owner in fee simple of all the land on both sides of this stream for two miles up and down the creek, in- cluding the bed of the creek, on which he has a saw mill pro- pelled by steam, and for his convenience has erected bridges across the creek at two different points, on his own land, and supplies the mill with logs by hauling and by a tramway lead- ing from the mill to the place of deposit of the logs. “The complainant obtains his supply of logs by floating them down Cache Biver, and some from Big Creek, but from no point above the defendant’s lands and mill. He, however, alleges that he has made a contract with one Phelps to cut saw logs for him on Big Creek, above the lands of the defendant, which are to be floated down to complainant’s mill, when the water in tiie creek is suitable for sii(*li i)ui'])ose, it being alleged in the bill that it is only at certain seasons adapted to the floating and rafting of logs. “The charge is, that defendant felled trees, on his own land, into I>ig Creek, near his mill, and tliat they were so felled to ))revent the complainant from floating and rafting his logs, timber and trees down that stream, and threatens to fell otlier ti*ees into the creek, and the prayer is that the defendant be enjoined from so doing. “The defendant, in his answer, admits the principal and im * t)ortant allegations of the bill, and takes the position that as lie is the owner of the lands for two miles on each side of the creek, together with the bed of the creek and its banks, he has the right to all the timlier growing and standing on eacli side of the creek and on its banks, and to fell and prostrate it over and across the creek, at any point over and along the creek and within the boundaries of his lands. He furtlier admits that, in felling the trees growing on the banks of the creek, the tops and branches, and which he could not prevent, fell into the stream by the force of gravitation. He also admits that he does not wish the complainant to raft or float logs over his land, and he further avers that there is much valuable tim- ber on his land, which overhangs the creek, which he intends to cut and fell, and the tops of which, when felled, will neces- sarily fall into the creek, where it will be greatly to his advan- tage they should remain until he is ready to vrork them into lumber. And, in conclusion, the defendant protests against the right claimed by complainant to the use of defendant’s land and water as a highway, or as a channel through and l)y which to float or raft logs to complainant’s mill; that he has at no time given complainant permission so to use his land and water, and has informed complainant he would prevent it, if he could ; and he further says, in his answmr, that by using the stream of the creek when suitable for floating, com- plainant will destroy the bridges erected across the creek, and he avers that Big Creek is not a navigable stream, and denies that complainant has any right of way over the same, through and over the lands of the defendant. “On this answer, sworn to, the oath not having been waived, the defendant moved to dissolve the in j unction , which ^notion icas overruled, and the cause set for hearing on the hill and answer, no replication havinig been filed, by the complainant, and on such hearing without any proofs, the injunction was made perpetual. “To reverse this decree, the record is brought here by writ of error. ‘‘The pleadings establish the fact that Big Creek is not a navigable stream, and by the common law it l)elongs, its banks and bed, to the riparian proprietors, of whom the ])laintiff in G(i7 cM'i'or is ()iu‘ to tlio ('xi(‘ni of two milos up and down lli(‘ slr(;ani. “ddio proviso (‘liarac'ter ol* this stroani is not siatcMl, noi' do(^s it appear aiivwhcn’o in tlie record. Its hni^tli, })readtli, or di- mensions ot its bed above its continence with the Riv(‘r Ca(*lie, are nndisclosed, noi* have we any means of ascertaining tln^ ordinary volume of water contained in the bed, or its (juantity during freshets. We are led to infer, from what is stated, that it is an inconsiderable stream, nearly or wholly dry in the summer season, and carrying a volume of water sufficiently ])owei’ful to float logs or rafts only in seasons of freshets, and then for a few days or weeks only. The beds of all sucli streams we know, judicially, have been surveyed Iw the gov- ernment of the United States, and sold, and on which tlie ])ur- chasers or their assigns pay an annual tax to the State, besides local assessments made upon them. They are, to all intents and purposes, private property. Being so, the question is pre- sented by the plaintiff in error, and it arises on the record — - indeed, it is the only question of any magnitude in the ease, is this private right subservient to the public use! ‘U4s preliminary, it may be stated that it does not a])pear, by this record, that Big Creek was ever used, at any season, alwve the lands of the ])laintiff in error, for the purpose of floating rafts or logs. The allegation is, that Phelps was em- ployed to cut logs, and had a portion of them in the creek, ready for floating. The natural ca])acity of the stream foi- floating, above the lands of ])laintiff in error, does not a])])ear to have been ascertained, and there is no evidence it has ever been used for that ])urpose.” (54 111., pp. 112-115.) We submit that this case, as a whole, “is of a character so ex- traordinary as to challenge the most careful investigation.” It arose upon the record, which consisted of a hill for an injum*- tion and a sworn answer. There was no replication, and there were no proofs. Upon this record there was but one thing for the court to do, and that was to dismiss the hill. It had been so held fre(piently l)y this court. “By not filing replication within the time allowed for so doing, the plaintiff subjects himself to ai)plication for dismissal of this bill for want of ])rosecution.” (Daniel, Ch. Pr., 5th Ed., ^834.) “When a cause stands n))()n a hill and answer only, the eoin- plainant admits all that is stated in the answer to ])e true, whether it is responsive to tlie bill or not.’’ Pankey v. liaiim, 51 111. ,88, 91, citing DeWolf V. Long, 2 Gilm., 679; Mason v. McGirr, 28 111., 322. Mr. Justice Breese therefore correctly said: ^‘The pleadings esta})lish the fact that Big Creek is not a navigable stream.” If Mr. Justice Breese had then said: '‘The bill is therefore dis- missed,” he would have disposed of everything before the Court. W^e respectfully submit that a cause coming before the Court upon a bill which did not waive the oath and upon the sworn answer denying the allegations of navigability, "and tvithont any proofsd^ does not present a record adequate for the settlement of a great question of law and policy of the State for all time. The case apparently has never been followed or cited, except to be referred to historically in the opinion in Sclmlte v. Warren, supra. The question of public policy, upon which Mr. Justice Breese saw fit to give elaborate dicta, was this : Are streams in Illinois, which are not navigable, but which are floatable. the freshets of spring, "subservient to the public use,” "to float logs or rafts only in seasons of freshets and then for a few days or weeks only”? Of this question Mr. Justice Breese favored the negative. He had some of the very early New York cases, which he distinguished as being streams actually navigable. He disagreed with the Courts of Maine and Michigan, cases from which were brought before him. He at that time did not have before him cases from Massachusetts, New Hampshire, Connecticut, "Wisconsin, Minnesota, Arkansas, Alabama, Florida, Oregon, Washington, North Carolina, South Carolina, Mississippi, Tennessee, Pennsylvania, and other states, and Canada. Apparently he did not have before him the early English cases here cited, viz : "In Grant v. Gordon (Mor. Die., 12, 822, cited in L. E. 2 App. Cas., 872) it was held, in reference to the River Spey, which is a nontidal river, but had been used for floating logs 6G9 down IVom ilio hi^lilaiuls to llio son, iliat ‘a i*iv(‘r hy wliioli lli(i proctiiots of tlio (‘ountiy can he transported to the sea {i. e., "floatat)te doini stream, only) is a ])n))rK' benofit inti*iist(Hl to ‘tlio King- as pater patrhae for tlie belioof of his sul)joots in ‘g'OTioral, wliicli can ncitlier be given away nor abridged by him, ‘and that this transportation is the chief and primary use of 'the river, and if incompatible with fisheries along its coast ' H'ill prevail over themd Nothing can be found in the Anieri- can law which extends the doctrine of navigability any further than that case, and although it was a Scotch case it was cited by the English court, and there is nothing to show that the same rule is not applicable in England. In Blount v. Layard (1891, 2. Ch., 681, note) Bowen, J., in speaking of the river Thames, says: ‘We are dealing with the Thames, which is not a tidal river at the place in question. But on the other hand, it is a navigable river, — that is, all the Queen’s subjects have the right of passing and repassing on it and it is what is called in the old books a “King’s stream,” by which is meant not that the soil must belong to the King, but that it is a high- way, and that the King is the natural guardian and conservator of the commodious and convenient passage of the river by his subjects.’ ” (1 Earnham on Waters, p. 115.) Apparently he did not have the full text of Lord Hale’s “He Jure Maris” before him, or he would have seen the following passage : “Sir Matthew Hale (De Jure Maris, chaps. 1, 2, Hargrave’s Law Tracts; Hall, Seashore, Appx.) in his treatise, De Jui*e Maris, the time of the composition of which is not definitely kiiovm, but which was undoubtedly composed soon after the decision in the Banne Case, states the law as follows: ‘Fresh rivers, in point of propriety, are prinia facie of a i)rivate inter- est; yet they may ])e under these two servitudes — one of pre- rogative, belonging to the King, and another of ]mblic interest or belonging to the public in general. . . The King by ancient right of prerogative hath had a certain interest in' fresh rivers; (1) a right of franchise or ])rivilege that no man shall set up a common ferry for all passengers; (2) an interest of })leasure or recreation, as, the right of fowling or fishing in it; (3) an interest of jurisdiction, which extends to reformation and punishment of nuisances in all rivers that are of common passage, not only for ships and greater vessels, but also for smaller, as barges and boats, for as the common highways on the land are for the common passage, so this kind of rivers, whether fresh or salt, that bear boats or barges, are highways by water; and as the highways by land are (‘ailed altae viae regiae so these public rivers for public passage are called ftnvii regales and haul streames le roy, not in refereiu'e to the })r()})i-iety of the* river, but to the })ublie use. And therefore the i-eport of Sir John Davies in tlie Itoyal Fisheries of the lUu/ne mistakes the reason of those hooks that call these streomes le roy, as if they were so called in respect of pro- pi'iety, for tliey are called so because they are of public use and under the King’s special care and protection, wliether the soil he liis or not.’ Again lie says (hi., chap. 3), ‘there he some sti*eams or rivers that are private, not only in propriety or ownership, hut also in use, as little streams and rivers that are not a common ])assage for the King’s })eo})le.’ Again, ‘there l)e other rivers, as well fresh as salt, tliat are of common or ])uhlic use for carriage of boats and lighters. And these, whether they are fresh or salt, whether they flow and reflow or not, are i)rima facie publici juris common highwa^\s for man or goods, or both, from one inland town to another. Thus, the rivers of Wey, of Severn, of Thames, and divers others, as well above the bridges and ports as below, as well above the flowing of the sea as below, and as well where they are become to be of private propriety as in what parts they are of the King’s pro- priety, are public rivers juris publici.^ ” (1 Farnham on Waters, p. 113.) Nor was Williams v. Wilcox, 8 Aid. & Ellis, 314 (1838 — ^^Severn liiver) brought to his attention. That was an action of trespass for throwing down a weir of plaintiff appurtenant to his fishery. Plea, that said weir was wrongfully erected and placed and set up, in and across part of a public navigable river called the Severn. Judgment for plaintiff on the ground the construction of such weir was legalized by statute. By the court : “It is clear that the channels of public navigable rivers were always highways; up to the point reached by the flow of the tide the soil was presumably in the Crown; and above that point, whether the soil at common law was in the Crown or the owners of the adjacent lands (a point perhaps not free from doubt), there was at least a jurisdiction in the Crown, accord- ing to Sir Matthew Hale, ‘to reform and punish nuisances in all rivers, ivhether fresh or salt, that are a common passage, not only for ships and greater vessels, hut also for smaller, as barges or boats.’ ” In general it may be said that Mr. Justice Bre-ese followed the lead of Chancellor Kent, in one of the few instances when Chan- cellor Kent erred, namely in holding that a navigable stream must be a tide-water stream. In so doing he considerably embarrassed the subject in the law of 071 Illinois; and in 1(S70, at llie linio vvluni lio dcnadod llublxird v. fUdl, tlioro had Ihhmi no (‘lear ovorrnling’ of tlio oases liolding the tide- Avatei* test. He held to the test irnnselP. TTis dicta, tliei-(‘on liad n:ot been overrnled, and lie was still under their inflneru'e when he de- cided Jfuhhard V. B(dL But the later eases, heretofore cited, make the law clear, that ‘Hhe (|nestion whether these waters are navigable depends npon the (|nes- tion whether they are of sufficient depth to afford a channel for useful cominerce.” Slopes, sinuosities, and current, are not, according to this test, controlling factors. Is there a sufflcient depth of ivater to afford a channel for useful commerce? If so, the stream is navigable. Cur- rents may be modified, slopes may be corrected, loose boulders and obstructions may be removed. The authorities make it clear : 1. That the existence of obstructions and interrnptions is not controlling. 2. That streams need not be navigable in entirety. 8. That it is not necessary that the stream should be navigable all the year round. 4. That it is not necessary that the stream he navigable both ways. Navigability down stream is sufficient. 5. That it is not necessary that there he an existing, continnons, present nse of the stream. Its capability of being ])iit to nse is sufficient. 2. LEGAL DEFINITIONS AND PRINCIPLES, GENERALLY, AS TO NAVIGA- BILITY. ^‘In the irnited States the term Hiavigalile river’ is not restricted in its meaning to waters which are infinenced hy the tides of the sea, but extends to all rivers whi(*li are callable of being navigated in fact.” Genesee Chief v. Fltzhugh, 12 How., 448 (58 IT. S., 288), overruling The Thomas Jefferson, 10 Wheat., 428, and The Orleans, 11 Peters, 175. The Montello, 20 Wall., 448. The Daniel Ball, 10 Wall., 557. G72 Jones V. Hoiilard, (>5 U. S. (2-1- How.), 41, GO ; !(> L. Hd., 604. Paelun- v. Bird, 11 Sup. Ct., 210, 212; 137 IT. S., 661 ; 34 L. Ed., 819. /Ivcl oh V. nine, 23 Ohio St., 523, 527 ; 13 Am. Kep., 255. Miller v. City of Neiv Yorh, 109 IT. S., 385; 3 Siij). Ct., 228, 234 ; 27 L. Ed., 971. State V. Baum, 38, S. E., 900, 901 ; 128 N. Cai*., (iOO. Barney v. Keokulc, 94 U. S., 324 (1876 — Miss. Kiver) was an action of ejectment. Plea, title in defendant. Held that plaintiff owned the fee, hut subject to the easement of public use. By the court : ^‘The confusion of navigable with tide-water, found in the monuments of the common law, long prevailed in this country, notwithstanding the broad differences existing between the extent and topography of the British Island and that of the American continent. It had the influence for tiro generations of excluding the admiralty jurisdiction from our great rivers and inland seas; and under like influence it laid tlie foundation ill many States of doctrines with regard to the ownership of the soil in navigable waters above tide-water at variance with sound principles of public policy. Whether, as rules of prop- erty, it would now be safe to change these doctrines where they have been applied, as before remarked, is for the several States themselves to determine. If they choose to resign the riparian proprietor rights uliich properly belong to them in their sov- ereign capacity, it is not for others to raise objections.’’ This variance from principles of sound public policy ought to be no further extended. ‘ AVe have thousands of miles of public navigable water, in- cluding lakes and rivers, in which there is no tide. The juris- diction is here made to depend upon the navigable character of the water, and not on the ebb and flow of the tide. ’ ’ The Genesee Chief v. Fitzhugh, 53 IT. S. (12. How.), 443, 455; 13 L. Ed., 1058. Lamprey v. State, 53 N. W., 1139, 1143; 52 Alinm, 181; 18 L. R. A., 670; 38 Am. St. Rep., 541. Diedrich v. Northivestern Union By. Co., 42 Wis., 248, 263 ; 24 Am. Rep., 399. ‘‘By the common law in England the test of navigability of a stream was the ebb and flow of the tides, hut that rule never l)revailed in this country, because it was ina])plicahle to its (‘on- G73 (lit ions. We liave vivors Tuivigable for thoiisaTals of miles, and eapablo of tloating the commerce of the world, whicli are tide- less. P»y the Roman civil law, rivers in which the flow of water is perennial belong to the public, and they were navigable if they were capable of being navigated in the common sense meaning of that term. According to the Digest, a navigable I'iver is ‘statio iturve navigio.’ The Code Napoleon speaks of navigable river as ^flottables that is, rivers admitting floats. The rule of the civil law %as ever prevailed in the United States, and is another instance of our great obligation to that splendid system of jurisprudence 'which ivas developed by the Homan peopled' Ten Eyk v. Town of Warwick, 75 Hun. , 562 ; 27 N. Y. Supp., 536, 538. Uigraham v. Wilkinson, 21 Mass. (4 Pick.), 268, 271; 16 Am. Dec., 342. Stuart V. Clark’s Lessee, 32 Tenn. (2 Swan), 9, 13; 58 Am. Dec., 49. ‘‘As commonly used, the term ‘navigable waters,’ in one of its meanings, includes all waters, whether within or beyond the ebb and flow of the tide, which can be used for navigation.” Commomvealth v. Vincent, 108 Mass., 441, 447. “In this country all rivers, without regard to the ebb and flow of the tide, are generally regarded as navigable as far as they may be conveniently used at seasons of the year by vessels, boats, barges, or other water craft for purposes of commerce. Further than this, what constitutes a navigable river free to the public, is a question of fact to be determined by the natural conditions in each case.” Ihicki V. Cone, 25 Fla., 1; 6 South., 160, 161. Gaston v. Mace, 33 W. Va., 14; 10 S. E., 60, 62 ; 5 L. R. A., 392 ; 25 Am. St. Pep., 848. Broadnax v. Baker, 94 N. Car., 675, 681; 55 Am. Rep., 633. “In the United States the legal meaning of the word nav- igable has been much extended, and it is not limited to streams which are capable of bearing ships on their bosoms, but includes, generally, all waters practically available for float- ing commerce by any method — whether by rafts or boats.” Falls Mfg. Co. v. Oconto Biver Imp. Co., 87 IVis., 134; 58 N. W., 257, 261. 674 Tan I^yaL v. Toirn of Wanvick, 75 iriin., 562; 27 X. Y. Slip})., 55f), 55S. Lampratj v. State, 52 Minn., 181 ; 52, N. W., 112,9, 1142; 18 L. 1^. A., 670; 28 Am. St. Rep., 541. Buckl V. Cone, 25 Fla., 1 ; (i Soiitli., 160, 161. “As tlie servitude of public interests depends rather on the piir])ose for wliich the public requires the use of the stream than any ])articular mode of use.” 'Moore v. Sanhorne, 2 Midi., 519, 524, 527; 59 Am. Dec., 209. “A more appropriate criterion of a navigable river is not the flow and reflow of the tide, but simply tlie fact wlietlier the river, in its ordinary state of water, is capable of, and suited to, the usual purposes of navigation by sea vessels, such as are employed in the ordinary purposes of commerce, whether foreign or inland, and whether steam or sail.” Sigler v. State, 66 Tenn. (7 Baxt.), 492, 496. Bnrke County Com’rs v. Cataivha Lumber Co., 116 N. Car., 721; 21 S. E., 941, 942; 47 Am. St. Rep., 829. •Stuart V. Claris s Lessee, 22 Tenn, (2 Swan), 9, 12; 58 Am. D!ec., 49. Hodges v. Williams, 95 N. Car., 221, 222; 59 Am. Rep., 242. “A distinction is taken by the common law between streams which, in the common acceptation of the term, are suited to some purposes of navigation, and small, shallow streams, which are not so. In respect to the former, which though not navigable in the sense of the law, are yet of sufficient depth naturally for valuable floatage, as for rafts, flatboats, and per- haps small vessels of lighter draught than ordinary, while it is settled that the right of property in the bed of a stream is vested in the riparian proprietor, still it is equally well settled that the public have the right to a free enjoyment of such stream for the purposes of navigation to which it is naturally adapted.” Webster v. Harris (Tenn.) 69 B. W., 782, 782; 59 L. R. A., 224 “A bayou susceptible of navigation by small steamboats, flats, and other craft is a navigable stream.” Goodwill V. Police Jury, 28 La. Ann., 752, 772. “ ‘ Njivii*'al)lo slrennis’ arc stroaiiis of sufficacirit width aud depth for valuable tloata^e.” 'ruscdloosd County v. Foster, 11)2 Ala., 292; 2>1 South., 587, 589. ‘^ddie rule now most generally adopted, and tliat wliich seems best fitted to our own domestic conditions, is that all water courses are regarded as navigable in law which are navigable in fact; that is, that the public have the right to the nnobstructed navigation, as a public highway for all purposes of pleasure or profit, of all water courses, whether tidal or inland, that are in their natural condition capable of such use. A branch of a sound which was from 2 to 4 feet deep, and from 140 to 300 yards wide, and was used by the public for passing in boats from one part of the sound to the other, which short- ened the distance, and was safer in rough weather, constituted a navigable stream.” State V. Baum, 128 N. Car., 600; 38 S. E., 900, 901. ‘‘Most of the definitions of ‘navigability’ in the decided cases seem to convey the idea that the water must be capable of some commerce of pecuniary value, as distinguished from boating for mere pleasure. But if, under present conditions of society, bodies of water are used for public uses other than mere commercial ‘navigation,’ in its ordinary sense, we fail to see why they ought not to be held to be public waters, or ‘navigable’ waters if the old nomenclature is preferred. Cer- tainly we do not see why boating or sailing for pleasure should not be considered navigation as well as boating for mere |)ecu- niary profits. Many, if not the most, of the meandered lakes of this state are not adapted to, and probably will never be used to any great extent for, commercial navigation ; but they are used, and, as population increases and towns and cities are built up in their vicinity, will be still more used, by the people for sailing, rowing, fishing, fowling, bathing, skating, taking water for domestic, agricultural, and even city pur})oses, cut- ting ice, and other public purposes which cannot now be enumerated or even antici];)ated. To hand over all these lakes to private ownership, under any old or narrow test of naviga- bility, would be a great wrong n])on the public for all time, the extent of which cannot perhaps be now even antici])ated.” Lamprey v. State, 53 N. W., 1139, 1143; 52 Minn., 181; 18 L. R. A., 670; 38 Am. St. Rep., 541. “Where a stream within tide water is navigahle for pleasure boating, it must be regarded as navigable water, though no craft has ever been upon it for the ])ur])ose of trade or agri- (*nltui‘(‘. In (letei-iuining wlietlier a stream is Tiaviga])le, tlie ])nri)()se of tlie navigation is not the subject of tlie inquiry, hut tli(‘ fa(*t ot the capacity of tlie water for use in navigation.” Aftorney General v. Woods, 108 Mass., 486, 440; 11 Am. Itep., 880. IT. REMOVABLE DIEEICULTIES AND PARTIAL LIMITATIONS DO NOT CONTROL NAVIGABILITY. 1. The existence of obstructions and interruptions not con- trolling; and 2. Stream need not he navigable in entirety. Schidte V. Warren, 218 111. App., at p. 120. The Montello, 20 Wall., 420 (1874 — Fox Kiver, Wis.) St. Anthony Water Power Co. v. Water Comm’rs., 168 U. S., 849. ( 1897— Miss. Elver. ) The last case cited was a bill for ah injunction to restrain de- fendants from diminishing the water power alleged to belong to complainants. Defense contended that the river was a navigable stream and the bed thereof belonged to the State. The bill was dismissed. By the court, at p. 859 : ‘Mn order to be navigable, it is not necessary that it should he deep enough to admit the passage of boats at all portions of the stream. * * * n navigable below the rapids and navigable above the rapids.” The Montello, 20 MMll., 430 (1874 — Fox Kiver, Wis.) was a libel by the United States for "^oncompliance with the enrollment and license act. Contended that zhe Fox Kiver was not a ‘^navi- gable water” of the United States. • By DAVIS, J., at pp. 442-3 : “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 navigated without .break. Indeed, there are but few of our fresh water rivers which did not originally present seri- ous obstructions to an uninterrupted navigation. In some (*ns(\s, like tlio Fox Kivor, they niay he so ^reat while they last as to prevent tlie use of the best instruinentalities for earryin^i^ on eonnneree, but the vital and essential f)oint is whether the natural navigation of the river is such that it affords a (diannel for nsefnl eoinnieree. If this be so, the river is navigable in faet, although its navigation may be encompassed with difficul- ties by reason of natural barriers, such as rapids and sand bars.” To same effect are Spooney v. McConnell, Fed Cas., 13,245 ; Attorney General v. Harrison, 12 Grant’s Ch., (U. 0.), 466. (Out.) Xew York — Hensler v. Hartman, 16 Abb., N. C. (N. Y.), 176 — Xote. (1878 — Niagara Eiver.) was an action of ejectment to recover ‘Tnade” land in the Niagara River. It was contended and decided that plaintiff had no title, the lot in question belonging to the State. Per John G. Milburn, Referee : “No proof was made of the navigability of Niagara River, but I think judicial notice may be taken of the fact.” New York — ]\Iatter of State Reservation at Niagara. 16 Abb., N. C. (N. Y.), 159. (1884 — Niagara River.) This was a hearing before commissioners to assess damages for land taken by the State of New York. As to certain islands that were taken, it was claimed that as they were situated in a navigable river they already belonged to the State, which claim was upheld. At p. 187 : “A river navigable in its general character does not change its legal characteristics in that respect by recent disturbance which, at a given point, breaks the continuity of the actual navigation.” (MARSH, Commissioner.) At p. 190: “The river is navigable above the Rapids, and is also navigable below the Palls. The (luestion is. whether a differ- ent rule as to title can be laid down for that section of the river which is rendered unnavigable by rocks, sudden descents and precipices? We do not see that such a distinction is prac- ticable, nor have we been referred to any authority requiring us to so hold.” (HALF, Commissioner.) In the same case on appeal {Matter of, State Reservation at Niagara, 37 Hun., 537, 547), the court, Rradley, J., said: ‘ So far as our attention has been called to any authority re- lating to this river, it has been recognized and treated as, in every sense, a ])iil)lie river, as niiieli as if it was an arm of the sea in whieh the tide flowed, and acknowledged as such. {Tih- 6V/.s‘c, 17 Went, f)2d; Kingman v. Sparrow, 12 Bari)., 201.) i\nd we think because it is mavigable in fact, and constitutes the natural boundary between this and anotlier country, is the reason why the })roprietary riglit from its margin to such boundary line is in the State, and that the riparian owners liave taken by the grant referred to only to the water’s 'edge of tlie stream. And tliat the fact that at the particular place in (piestion the river is not navigable by reason of the interrup- tion produced by the falls, does not qualify or distinguish it in tliat locality as a public river from its general character. We do not deem it necessary for the purposes of tliis case to further express any opinion in respect to the applicability of the common law doctrine referred to, to the large rivers in this State which constantly afford facilities for floating large ves- sels, except when navigation is interrupted by ice.” (87 Hun., 547-8.) North Carolina — Broadnax v. Baker, 94 N. Car., 675. (1886 — Roanoke River.) This was a motion to continue a restraining order, restraining defendants from operating a transportation line on the Roanoke River between the starting point and Mason’s Landing, or any other landing place within five miles of a ferry owned by plain- tiffs. It was contended that said river was a navigable stream and that the defendant had a right to operate a transportation line thereon. The decision was in accordance with that contention. By the court : ^‘Navigable waters, constituting highways, are not ascer- tained here, as they are in England, an island accessible to ocean tides, by the extent of their ebb and flow, but by a more practical test of their capacity to float boats used as instru- ments of commerce, in the interchange of commodities, and large enough for the purpose. Such waters lose not their navigability, because intercepted by falls, when above and be- low them, the waters can be thus used for the purpose of com- merce for long distances. ******* ” Rivers having capacity to float boats used as instruments of commerce do not lose their navigability because intercepted by falls, when above and below them the waters can be thus used for the puiq)ose of commerce for long distances. Under such circumstances they remain highways for common use.” {Broadnax v. Baker, 9-i X. Car., 675, 781; 55 Am. Ke])., 688.) G79 f “Whether a fresli vvatei- stream is iiavi^ahhi oi* not (l()(\s not depend on the mode by \vhi(*h (•oniiner('e is oj* may ix* eon- diieted on siieh stream, nor the diffl(mlties attend in^^ navigation thereon.” GoodirUl V. Police Jar?/ of Bossier Parish, l.a. Ann., 752. “A stream is still ‘navigable’ notwithstanding a partial change in the mode of its navigation by the erection of a bridge through and under which scows, gondolas, and boats and ves- sels without masts, or with falling or movable masts, may ad- vantageously pass and repass, loaded or empty/’ Inhabitants of Charleston v. Middlesex County Com/rs., 44 Mass. (3 Mete.), 202, 205. “Goldwaithe, J., says to make a ‘navigable’ stream three circumstances must concur: (1) The stream must have suf- ficient width, (2) sufficient depth, and (3) a freedom from in- surmountable obstructions.” State V. Bell, 5 Port. (Ala.), 365. “A river may l)e said to he ‘navigable’ when only its lower portion is such, and thus Laws 1898, c. 469, re(|uiring the i*estoration of navigable streams injured by a diversion of waters, applies to a stream navigable at its mouth, though it does not api)ear to be navigable at t!ie ])lace of diversion.” Toirn of Hempstead v. City of Neir Yorh, 65 N. Y. Su])])., 14, 18; 52 A])p. Div., 182. See foot note, 1 Parnham, ]). 123, stating the gist of the (kinadian statute and of 6 decisions thereon concluding in the Privy (k)nncil. The Canadian statute provides that it shall be lawful for all per- sons to float saw logs down all streams in up])er Canada during the spring, summer and autumn freshets. ( )ne of the earliest decisions under this statute held that it gave no right to float timber on streams which were not floatable in their natural state. This was overruled, then re-established, but Anally, in the Privy (y\)unci!, it was held that the statute was not so limited, “but extends to all streams, including those which had been made floatable by im- provements made by riparian owners.” Caldwell v. McJjitren, L. R., 9; App. Cas., 392. P>LACIvBIIRN, L. J., there said: “AVhen once it is shown that there is a suflicient body of water above and below the spot where the natural impediment (‘xisis, tlioufjli tlidf mdural impedhmant renders the stream at that point practicalhj unfioatahle, it does not make it cease to be a part of tlie stream in the ordinary sense of the words.” Tliat sucli streams are proper subjects of improvement as natural liigiiways is expressly lield in Benjamin v. Manistee Im- provement Co., 42 Mich., 428; und in re Burns, 155 N. Y., 23; S. Car,. 49; N. E., 24(). 3. Perennial navigahility is not essential. It is not necessary that the stream he navigable all the year ’round. 1 Farnbam, sec. 25, p. 121. Cai)acity for navigation in a period sufficiently regular and con- tinued to make the stream available for travel or commerce is suf- ficent. Arkansas — Little Bock, etc., R. Co. v. Brooks, 39 Ark., 403. (1882 — Bayou Bartholomew.) was an action for damages against defendant for obstructing the free passage of the Bayou Bartholomew, claimed to be a navigable stream. Defence, that it was not navigable. Judgment for plain- tiff. By the court : ‘^B}" the American doctrine, tide water, as a criterion of navigable character, has been discarded. Nor is it any objec- tion to the public easement for navigation, thalt h'iparian proprietors of lands, along fresh waters, own to the thread of the stream. Nor is it necessary that the stream should be capable of floating boats or rafts the whole, or even the greater ])art of the year. * * * jf its natural state, without artificial improvements, or may be prudently relied upon and used for that purpose at some seasons of the year, recurring with tolerable regularity, then, in the American , sense, it is navigable, although the annual time may not be very long.” In this case, such annual time was from six weeks to six months. ^^A stream capable of being used for purposes of commerce is ‘navigable,’ even though it may not be adapted to such use continuously throughout all the seasons.” Broivn v. Chadhourne, 31 Me., 9, 21 ; 1 Am. Eep., 641. Bucki V. Cone, 6 South., 160, 161; 25 Fla., 1. “If it is ordinarily subject to periodical fluctuations, at- tributable to natural causes, recurring as regularly as the G8T seasons, and if its jxn-iods of u^atxn- on navi^'ahlo oapacaty ordinarily ('ontiniu^ a surficierit Ieny;tli of lime to niako it usotiil as a highway, it is subject to public easement.” Olson V. Merrill, 42 Wis., 203, 212. Ten Eyck v. Totvn of Warivick, 27 N. Y. Supp., 536, 538 ; 75 Him., 562. stream need not be navigable at all seasons of the year in order to be considered a navigable stream, but a stream, navigable only during periodical stages of liigli water, is to be considered a navigable stream at those seasons.” Thunder Bay, etc., Co., v. Speechley, 31 Mich., 336; 18 Am. Rep., 184. 4. It is not necessary to he navigable against the current. 1 Farnliam on Waters, Sec. 25, p. 121; Angell on High- ways, 45. Tennessee — Sigler v. The State, 7 Baxt. (Tenn.), 493. (1874 — Big Creek.) was an indictment for nuisance for felling trees in Big Creek and thereby obstructing navigation. Judgment of conviction affirmed. The court, quoting Angell on Highways, 45, says: ^The ebb and flow is not the only test; nor is the public easement always formed upon usage or custom; the test is, whether there is in the stream capacity for use for the purpose of transportation valuable to the public; and in this view it is not necessary that the stream should have a capacity for floatage at all seasons of the year, nor that it shoidd he avail- able for use against the current as ivell as ivith it. If, in its natural state and with its ordinary volume of water, either constantly, or at regularly recurring seasons, it has such capacity that it is valuable to the public, it is sufficient.’ ” ^‘As some streams are not navigable against their currents, if they are floatable in their natural state, so as to be of public use with the current, their public cliaracter is liberally sup- ported.” Ten Eyck v. Toum of Warwick, 75 Hun., 562; 27 N. Y. Supp., 536, 538. And see quotation supra from: Grant v. Gordon, Mor. Die. (L. R. 2, App. Cas. 872.) that a stream wbich can take the products of the forest to the sea is a public stream. 1 Farnliam, p. 121. 5. Acludl use is not neeessarij. — (Capacity for use is sufficient. The public has a right of passage over all fresh water streams whi(*h are by nature susceptiJde of general use, and those rivers ai*e i)ublic and naviga])le in law which are navigalhe in fact. IJ. ^.—The Daniel Ball, 10 Wall., 557. (1870— Grand River.) was a libel by the United States for failure to have the steamship Daniel Ball inspected and licensed according to an Act of Congress. Defense, that the Grand River was not a navigable water of the United States. Held that a decree for the penalty provided should be entered. By the court, Mr. Justice Field: ^‘The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in Eng- land, or any test at all of the navigability of waters. * * * A different test must, therefore, be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be 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 the ordinary condition, as highways for com- jnerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. ’ ’ Ohio— Hickok V. Hine, 23 Ohio St., 523. (1872— Grand River.) A bill for injunction to restrain defendants from building a bridge across the Grand River in such a manner as to obstruct navigation. Contended that the river was not navigable. In- junction granted. By the court: ‘ ‘ The character of a river, as such highway, is not so much determined by the frequency of its use for that purpose as it is by its capacity of being used by the public for purposes of transportation and commerce.” ‘‘Tile doctrine of the common law that the navigability of a stream is to be determined by the ebb and flow of the tide was repudiated in South Carolina in the case of State v. Pa- cific Guano Co., 22 S. Car., 50. Judge Wallace, in his circuit decree, vdiicli was affirmed in such case, says: ‘If a channel, therefore, in which the tide ebbs and flows, and, in the lan- guage of the civil law, is floatable, can be used for the purpose of trade and commerce, it is a navigalile stream. Neither the character of the craft, nor the relative ease or difficulty of the , are tests of yuivi()(itnllt}i. A streain niiay not bo usoful for (‘oininoivo at one tiino, and y(‘t circumst(m(‘es nuiy make it so. The test of fiavifjalhlity is naviyahle capaeAty, nAthoat regard to the eharaeter of the craft, the tyusiness done, the ease of navigaAAoa , tlie surroundings of the stream, or wlietlier it oonneots with another stream or highway, or Hows up into a private estate.’ ” Heyward v. Farmers' Min. Co., 42 S. Oar., 128; 19 S. P]., 962, 970; 28 L. R. A., 42; 46 Am. St. Rep., 702. ‘‘Any stream, though above tide- water, is a navigable water, if ‘of sufficient capacity to float the products of the mines, the forests, or the tillage of the country through Avhich they flow, to market.'^ ” Lewis V. Coffee County, 77 Ala., 190, 192 ; 54 Am. Rep., 55. Sullivan v. Spotswood, 82 Ala., 162; 2 South., 716, 717. Burke County Com'rs v. Catawba Lwmher Co., 21 S. E., 941, 942 ; 116 N. Car., 721 ; 47 Am. St. Rep., 829. “The character of the river as such liighway is not so much determined by the frequency of the use for that ])urpose, as by its capacity for being used by the public for the purpose of transportation and commerce.” Hickok V. Hine, 22 Ohio St., 522, 527 ; 12 Am. Rep., 255. Wisconsin — The Attorney General v. Smith, 109 AVis., 522. (1901 — Lake Alonona.) vv^as a bill filed by the attorney general to abate and remove certain structures erected in Lake Alonona alleged to be pui‘})restures and public iruisances. Contended that they were not nuisances, fludg- ment entered as prayed for in the bill. By the court: “It is true that a purpresture on the ])ublic land is not neces- sarily a public nuisance. Gould, Waters (2d ed.) sec. 21. A ])urpresture is a })ermanent invasion of the public land. A nuisance is an injury to the ])ublic rights of navigation, tisliing and the like. It is true that it has been held in California that a court of equity iii this country has not the ])ower to decree the abatement of a mere pur])resture which is not a })ublic nuisance. People ex rel. Teschemacher v. Davidson, 20 Ckil., 279. A different comlusion was, however, rea(‘lied in People V. Vanderhilt, 26 N. Y., 287, where it was distinctly iield that a mere })urpresture is liable to abatement in an action in ecpiity, at the suit of the attorney general, irresi)ective of the (luestion whether it is actually a nuisance, and that the offer to prove that a purpresture, such as a pier in navigable ivdtcrs, was not in fact injurious to navigation, was properly overruled. Similar conclusions were reached in lievell v. People, 177 111., 4f)8, and U. S. v. Brighton R. Co., 25 Fed. Rep. 4(15. The authorities cited in those cases entirely justify the decisions, and we have no hesitation in adopting the latter rule.” On the contention that a present existing continuous navigation is necessary to justify an injunction this case is directly contrary to the earlier holding in State v. Carpenter, 68 Wis., 165, which was relied on by the court below. People v. St. Louis, 5 Gilm., 368, is equally clear against that contention. By the court: ‘‘Evidence of navigability should not be confined to the present or past use of the water as a highway of commerce for the transportation of agricultural and other products to mar- ket, hut the capacity for such use must be considered, and the future development of the country along the shores of the bay or of new channels of commerce must not be lost sight of, whether a present inquiry may develop the probability of such use or not. ” (1984 — Highland Bay.) Jones v. Johnson, 6 Tex., Civ. App., 262. 6. Public right not lost by non-user. City of Alton v. III. Transp. Co., 12 111., 38 (1850 — Mississippi River) was an action of ejectment for a lot on the river front dedicated as a public landing. Contended that there was no dedi- cation, and that plaintiff’s claim was barred by the seven years’ statute of limitations after fifteen years’ adverse possession. Judg- ment for plaintiff. By the Court : “Whether an adverse possession would run against jorop- erty thus held, we do not now propose to inquire, but we entertain no doubt that this statute does not apply to this case, and that the rights of the public in this dedication have not been forfeited by non-nser or barred by adverse possession.” Arundel v. McCulloch, 10 Mass., 70 (1813 — Kennebunk River) was an action of trespass for destroying a bridge across the Kenne- bunk River. Contended that said river was navigable, that said bridge was a nuisance which defendant had a right to abate. Judgment for defendant. By the (\)iirt : “In tills case no such authority has been given; and the only claim of a riglit to continue the bridge rests upon the anti(|uity of the bridge, and the laying out of a road over the river in tlie year 1771. But we think that neither of these facts sanctioned the obstruction of the river, so as to prevent those ivho had occasion to transport vessels up and doivn from removing it, if necessary to a safe and convenient passage. Public rights cannot he destroyed by long -continued encroach- ments; at least, the party who claims the exercise of any right inconsistent with the free enjoyment of a public easement or privilege, must put himself upon the ground of perscription ; unless he has a grant or some valid authority from the gov- ernment. ’ ’ In Commonwealth v. Charleston, 1 Pick., 180 (1822 — Miller’s River) defendants were indicted for not repairing two bridges across Miller’s River. Defense, that said river was navigable and they were not bound to repair the bridges as they themselves were nuisances. Judgment for defendants. By the Court: “It has been urged that the actual use of them for such pur- pose is necessary to give them the character of public prop- erty ; but it is obvious there can be no such qualification of the principle at common law; for it would go to allow the occupa- tion, by individuals or corporations, of many of the most im- portant public privileges, in the early settlement of the coun- try, before ports and places of deposit should become valu- able.” Title in canal cannot be acquired against the State by ad- verse possession. 1 Farnham, sec. 106, p. 497. Penn. Canal Co. v. Harris, 101 Pa. St., 80 (1882 — Penn. Canal), was an action of ejectment to recover lands alleged to belong to the State as canal property. Plea, title in defendant. Question of title undetermined. By the Court: “As time does not run against the commonwealth, and this suit was brought in less than twenty-one years after it ])arted witli the title, no adverse possession can bar plnintiff’s right to recover. Hence, the remarks of the learned judge as to possession of defendant since 1828 were calculated to mis- lead the jury. They should be distinctly told that he acquired no title by virtue of his possession.” 'I' I IK 1‘UliKIC KKUIT IN A NAVIGAIJI.K WATER COURSE IS NON-ALIEN- t . ABLE. Wast Chicdfjo St. li. It. Co. v. People ex rel. Chicago, 214 III. 9. (190r)-Chieago Hiver.) A Petition for a writ of iiiaiidaiiius hy the City of Chicago to eoiiipel the I'esponderit to lower the tunnel under tlie Chicago Eiver at Van Buren Street. Contended that as said tunnel was built un- der a license from the city, the city could not demand that it be altered or changed. By the Court: “The fitle to land under a navigable river is not the same as the title to the shore land. The title to the upland is abso- lute and paramount, while the title to the lands over which the navigable water flows is subordinate to the public right of navigation. In a navigable stream the public right is para- mount, and the owner of the soil under the bed of such a stream can only use and enjoy it far as is consistent with the pub- lic right, which must be free and unobstructed. * * * * Under these established rules an owner who erects a structure, whether it be a tunnel or whatever it may be, in the soil under the navigable water, does it at his peril, and if it becomes an obstruction to the paramount right of navigation he may be compelled to remove it. “T/ie city could not, if it would, grant the right to obstruct the navigation of the river, or bind itself to permit anything wlikh has become an obstruction to be continued.' ’ This case was taken by writ of error to the Supreme Court of the United States and is reported in 201 U. S. 506. By Harlan, J., at p. 524: “ ‘The privilege of navigation upon all waters which are capable of such use in their natural condition amd are access- ible without trespassing upon private lands, is n common and paramount right. * * * common law the right of nav- igating a public stream is paramount to the right of passage across the stream by means of a bridge.’ Gould on Waters, secs. 86, 88. “If, then, the right of the railroad company to have and maintain a tunnel under the 'Chicago River is subject to the paramount public right of navigation; if its right to maintian a tunnel in the river is a qualified one, because subject to the specific condition in the Act of 1874 that no tunnel should in- terrupt navigation; if the present tunnel is an obstruction to 087 iijivig’niioii, ns upon this rc'rord wo nmsi lak(‘ it to lx*; and it tlio ('ity, as la'proiscMiiiu^- the Stato and pnl)li(5, niay i-i^-littnlly insist that siuhi ohstnu'tion shall not longor rornain in, the way of t'roe navigation; it necessarily follows that the T’ailway company is under a duty to comply with the demand made upon it to 1 ‘emove, at its own exjiense, the obstruction whicli itself created and maintains.” Cox V. State, 3 Blackf. (Ind.), 193 (1833— White River) was an indictment for obstructing the navigation of the White River. Plea, not guilty. It was held that an indictment would lie for placing an obstruc- tion in said river, and that the State could not lawfully authorize one to be placed therein. ‘^The legislature has no more authority to emancipate itself from the obligation resting upon it, which was assumed at the commencement of its statehood, to preserve for the benefit of all the people forever the enjoyment of the navigable waters within its boundaries, than it has to donate the school fund or the state capitol to a private purpose. It is supposed that this doctrine has been so firmly rooted in our jurisprudence as to be safe from any assault that can be made upon it. The navigable waters of the state belong to the state, and the lands under them, in all situations, so far as are necessary to pre- serve inviolate the common right to enjoy those incidents which are not subject to private ownership in navigable waters at common law; and any attempt by any person or corporation to violate such public rights to the special injury of a particu- lar person, as wlien an attempt is made to take from such per- son some incident of his title to the shore of navigable waters, may be restrained by a private action.” Prince v. Wis. St., L. S J. Co.; 103 Wis. 550; 79 N. W. 780; 74 Am. St. R. 904. People ex rel Att’y Gen. \\ Kirk, 162 III. 138, 148. 111. C. P. Co. V. III., 146 IT. S. 387, 453. CANAL TRUSTEES V. HAVEN, 5 GTLM. 548. Much reliance was placed on this case by the defendant; but rightly understood, it is believed that the case does not justify such reliance. The entire report of the case, exclusive of head notes and arguments of counsel, reads as follows: (Agreed Case) : ^‘This caise was submitted to the Circuit Court of AVill (188 ('ouTity, at the October term, 1848, the Hon. Jesse B. Thomas, j)resi(liTig, upon an agreed statement of facts. The appellees, who were the plaintiffs below, claimed damages of the appel- lants, defendants below, for injury to their mill, resulting from a divei\sion by said defendants of the water of the Des lhaines River, from the mill of said plaintiffs. The Circuit Court (lecided, upon the agreed case submitted to it, that the ])laintiffs were entitled to damages, the amount to be deter- mined in the manner pointed out in said agreement. Each party to the agreement stipulated for the rigid of appeal, and the defendants below appealed from the decision of the Circuit (^urt. The agreed case is set forth in the Opinion of the Court. ^‘The Opinion of the Court was delivered by Trumbull, J. This case comes before us on appeal from the decision of the Circuit Court upon the following agree- ment : (Agreed Statement of Facts) : ‘The plaintiffs and defendants in this cause agree upon the following statement of facts to be submitted to the Court for its decision thereon : The plat hereunto annexed. No. 1, is a plat of section six- teen, in township thirty-five north, of range ten east of the third principal meridian, and also the plat of section nine, in the same tovmship, being true plats of said sections as returned by the Surveyor General of the United States, and deposited in the Land Office of Chicago, on ivihich said plat is represented the Des Plaines River, as it runs through said sections; (Meander of the Des Plaines) : And it is admitted that said Des Plaines River is mean- dered through the entire length of said sections, as appears by the minutes of said survey, in the said Surveyor’s Office, a copy of which minutes is also attached, marked 2, and deline- ated on said maps. (School Section) : 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 schools, and accepted by an Ordinance of the 26th August, 1818, accepting certain propositions made by Congress, April 18, 1818. (Platting of School Section) : It is also admitted that the plat hereto annexed, marked 3, is a true copy of the plat of said section sixteen, as duly laid out and sub-divided, and certified and acknowledged, and rec- (I'O ()r(l(‘(l iU'(‘()r(lii]i>- to Inw, {iiid as set forth on said plat; and a, plat of said Kivor and (^aival witli the dams, basins, and loc'ks, as niad(^ and (‘oiKstriudx'd from Loekpoi’t, foiii- and a half mihis a!)o\'(' tlio said plaintilfs, to and below the said y)lainti ff’s mills, is liereto annexed, marked No. 4. (TlaintilT’s Purehase of Property in Scliool Section) : It is also admitted tliat at a sale of lots in said section six- teen, in October, 1884, by and under the anthority of the State, in ])nrsnance of the statute in such case made and provided, dohn IT. Kinzie pnrchased lots one and two in block fifty- seven, and that Patents issued to John H. K^inzie for the same in 1835, conveying title in fee simple, as by law directed, and that said John H. Ivinzie conveyed to Martin H. Demmond and John ^T. Wilson his title as above stated, and that Martin II. Demmond and John M. lYilson subsequently conveyed the same to the plaintitfs herein. Lots one and four, in block fifty-six, were sold at the sale of said section sixteen in 1834, were afterwards purchased by the plaintitfs 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 appropriated by the Canal. (Canal History: Canal Construction Begun in 1836, Dam No. 1 Built by Canal Commissioners.) It is admitted that the Illinois and Michigan Canal was commenced in 1836, and that i)ortions of the Canal through said sections were put under contract in 1838, and the guard lock on section nine near the dam across said Biver, first 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 was (|uarried and dressed during the spring and summer of the same year. The stone foi* the said dam on section nine (which is a cement and cutstone dam) was commenced being (juarried and cut the same season, and the dftm was commejiced the following season, iiii the spring, and finished in the fall of* 1841. The contracts for huilding said dam and locks were made in 1839, and it was generally under- stood as early as 1839, that said lock and dam were to be built. (Plaintitfs’ Mill Dam) : It is agreed that in the spring of 1839, the ])hiintiff'S com- menced building a mill on said lot one in block fifty-seven, on section sixteen, and also a dam across the Des Plaines River, connecting said lot one in block fifty-seven on the east bank of said River with the division line between lots one and four in block fifty-six, on the west bank of said River, and com- ])leted said dam and saic mill so as to use the same in the fol- lowing- ( )(*l()l)(‘i* oi* N()V(mhI)(‘i*. Soon tliereafler, the Commis- sioners of the Illinois and Miehi^an Canal, in constructing said (huial, removed the west end of said dam so that it l)('came (‘onne(‘ted with the east hank of the Canal, which bank encroached u])on the natural channel of the river atxnit ten feet. Tlie liead and fall at said ])laintiffs’ dam, used by tliem in |)ro{)eHin^‘ their mac'liinery, is six feet, leaving a fall on said lots one and two in block fifty-seven of about six inches more. In the year 1842, the plaintiffs also built a grist mill on said lot two in block fifty-seven, also added to the saw mill a lath mill, in 1843, and built a dwelling house on said lot one block fifty-seven, in 184b, and also a machine shop on said lot one in block fifty-seven, in 1847. Said mills and buildings have been used b}" the plaintiffs for the use and ])ur])oses for which they were built, from the time they were built as aforesaid till the 20th day of April, 1848; the water in said Eiver being at times insufficient for all said machinery. (Des Plaines Water Diverted from Eiver and Mill to Feed Canal) : 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 nalural channel of the Eiver, the whole or principal part of the waters of said River, by turning the same from the basin made in said Eiver by means of the dam on section nine, lieing a Canal section, and about half a mile above the dam of said plaintiffs, so that the plaintiffs are v/holly 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 been no change in the original plan of supplying the Canal vnth water from Lake Michigan by the deep cut as originally contemplated, and all contracts let prev- ious 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. (Agreed Statement — Des Plaines Not Navigable — An Agreed State of Facts Mdiich Both Parties AYished.) It is also admitted that the Des Plaines Eiver is not navig- able in fact, although a portion of it is declared to be so by Act of the Legislature. The work upon the Canal commenced being suspended in 1841, and was entirely suspended from 1842 to 1845. The question of law arising from this state of facts is, whether the plaintiffs are entitled to compensation for the injury and damages they have sustained in consequence of the f;i)i (liv('i'si()n ol* the waiei* of the Dos Dhiiiios Kiv(‘i' nforcisaid, into tlu' (\iiial as at’oresaid. And it is stipulated and ai^reed, that \vhich(‘ver way tin; elu(ti»'e deeides said (iiiestion, either party may have thirty (tays from and after notiee of said decision to take an appeal therefrom, or bring a writ of error to the Sui)reine Dourt. If the said decision shall be made in favor of the plaintiffs by the (hrcuit (^oiirt, and the defendants do not appeal, or bring a wiat of error, within the time aforesaid, or if, upon an appeal the Supreme Court shall decide in favor of the plaintiffs’ right to recover their damages as aforesaid, then appraisers shall be appointed by the Judge of the said Circuit Court to appraise the damages under and in ]>ursuance of the 9th section of the Act of March 2d, 1837, each party re- serving the right to make objections to the report of said ap- praisers before the Circuit Court, and to appeal from the decision or order of the Circuit Court upon such appraisal as provided for in the said Act.’ The Circuit Court decided that the appellees were entitled to damages, which decision is now assigned for error. It appears from map number three, that lots one and two in block fifty-seven lie immediately upon the east bank of the Des Plaines Elver, and that lots one and four in block fifty- six are situated upon the west side of said River, from which they are separated by a street. Map two shows that the whole of lot four, and nearly all of lot one in block fifty-six, as well as the street between said lots and the River, ami several feet of the River, are embraced by the Canal itself ; one side of the River, including a portion of the dam of the appellees, is now occupied by the Canal itself, and u])on the opposite side lie lots one and two in block fiftv-seven. (Riparian Owners’ Rights) : The general rule, that rivers not navigable belong to the owners of the adjoining land, and that, when the o])])osite banks belong to different individuals, each holds to the thread or middle of the stream, is not disputed, but then it is insisted that the ap])e!lees have no such right in this case, for two reasons : (Canal Reserved Strip — ^Act of 1822) : It is first contended, that by an Act of Congress, a})])roved March 30, 1822, the State of Ulinois was authorized to survey and mark through the public lands of the llnited States the route of the Canal connecting the Illinois River with the soutliern bend of Lake Michigan, and ninety feet on each side of said Canal was forever reserved from any sale to l)e made by the United States, and vested in said State for a ('anal ; wherefore, it is vsaid that the api)ellees am deprived of any wlii('li tlioy iniglit otherwise liave to any water or land within ninety feet of said (.^anal. It is to he observed, that a (‘ertain time was i)rovided t)y tlie Act of Congress within wlii(‘h tile State was to commence and complete said Canal, or, upon failure to do so, it was declared that the reservation and i>-i-ant made by said Act sliould lie void and of none effect. Whthont stop])ini^ to inquire whether the right of way secured ])y the Act of Congress was forfeited, so as to revest ipso facto in the government, upon failure of the State to com- mence and complete the Canal within the time limited by the Act, or whether, as is contended, the conditions of the Act of 1822 were waived, and the time for commencing and com- pleting the Canal extended by an Act of Congress passed iNFarch 2, 1827, it will be sufficient to show that neither of said Acts of Congress can have any bearing upon the rights of the appellees, admitting even that they are of the character, and contain all that is contended for by the appellants. (School Section 16 No Part of Canal Lands) : The lots of the appellees are situate on section sixteen, which was granted to the State for the use of schools^ jorior to the passage of the Act of 1822. It was not, therefore, public land at the passage of the Act, and consequently no part of it could at that time have been reserved from sale by the Lmited States. The various Acts of the Legislature of Illinois, reserving a right of way for the Canal, and authorizing the Canal Com- missioners to enter upon and use any lands, water, or mater- ials necessary in the construction, have all been examined, but are not referred to in detail, because all of said Acts, passed prior to the sale of section sixteen, had reference to canal lands, and whenever any other lands, water, or materials than those appropriated to the Canal have been authorized to be taken, it has only been upon making compensation. (Meander Notes — Absence of Line From Plat) : It is next insisted that the United States, in granting the school section to the State, did not include in the grant the bed of the stream running through it, but that said stream, the Des Plaines Eiver, was meandered through said section, and a plat thereof returned to the Surveyor GeneraPs Office, show- ing that the Eiver was not included in the survey; and while the appellants admit that a grant of land bounded by a stream not navigable, passes the property through the thread of the stream, yet it is insisted that the owner has the right to re- strict his grant either to the edge of the water, or to high or low water mark. Admit that the owner may so restrict his grant, of which there can be no question, when the intention is clear and manifest, and still the admission cannot avail the appolljinis, b(H‘{Uiso iliere is nothing in the record to show that the United States intended to limit tlieir grant so as to ex- ehide the River. Neither tlie plats filed in tlie Land or Siir- veyor (leneral’s Oftice, sliow any lines marking the courses and distances along the margin of tlie Liver, as a hoiindary of the adjoining land. (The Des Plaines a Meandered Stream) : The agreed ease states as follows: ‘It is admitted that said Des Plaines River is meandered tlirougli the entire length of said sections, as appears by the minutes of said survey, in said Surveyor’s Office, a copy of which minutes is also attached, marked 2, and delineated on said maps.’ We do not understand this language to imply that the meandered line was marked upon the maps in the Land and Surveyor’s Offices, but that it would appear by the minutes, not maps, that said River was meandered, a copy of which minutes is also attached and delineated on said maps, not as they appear in said Offices, but as they are made exhibits, which, however, is an error in point of fact, as there are no distinctions of said meandered lines upon the maps. As there was, therefore, no marked line upon the plat by which the grant was made, defining and limit- ing the land granted to the margin of the stream, the whole argument founded upon such a supposed state of facts fails. That a meandered line, which is run for the purpose of as- certaining the quantity of land in the fraction, is not a liound- ary, has been settled by a former decision of this Court, in the case of Middleton v. Priichard, 3 Scam. 510. In that case the Court says: ‘It appears the Surveyor of the Government traced the courses and distances along the margin of the slough, next the main land, in order to estimate the quantity of land in the fraction, and which estimate did not include the Iocais in quo. But the plats in the Land Office, and Surveyor General’s Office, have no line marking their courses and distances as a boundary.’ Neither have the plats referred to in this case. No other points have been made for a reversal of the judg- ment of the Chrcuit Court, except the suggestion that there is nothing in the record to show that lots one and two in block fifty-seven border ux)on the Rivei*. This is a misapprehension. Map No. 3 shows that said lots do lie upon the River, and the right of the axipellees to the water of the River opposite their lots to the middle of the stream being established, it follows that they are entitled to damages for a diversion of the water from its natural flow along the bed of said stream. What the amount of their damages will be, or whether, hav- ing a right to only one-half the stream, the appellees can so use it, the appellants being entitled to the other half, as to make it available for running the machinery which they have ])iit up on siaid lots one and two, ar-e (|nestioiis not now l)efore ns. Tliey would l)e entitled to at least nominal damages, even if no water power eonld he obtained from tlie River upon said lots. Idle judgment of the Cinniit (^onrt is affirmed with costs. Judgment Affirmed.’^ Upon this it is to he oliserved that the case was submitted ni)on an agreed statement of facts, or stijiulatioh. Tliis stijmlation con- stitutes the entire evidence in tlie case. In 18.‘U })art of tlie School Section adjoining the river was sold hy the school authorities to ])urchaseTS, from whom the plaintiffs ac(]uired title. The plaintiffs proceeded to build a dam and mill in 18d9, and an additional mill in 1842, which were operated by ] lower from the dam. in 1836 the construction of the canal was begun. The work on the portion of the canal adjoining this dam was begun in 1840, and the Dam No. 1 was begun in the spring and finished in the fall of 1841, after the plaintiffs’ mill was erected. In 1843 the canal, with all its ap})urtenances, including the bed of the river in Canal Sections, and all of the canal lands, were conveyed to trustees by mortgage, embodied in the Act of Febru- ary 21, entitled: “An Act to provide for the completion of the Illinois and Alichigan Canal, and for the payment of the canal debt.” (L. 1843, p. 54; Canal Comp., p. 76.) These Canal Trus- tees were mortgagees. It had been originally planned to build the canal on the deep cut plan, getting the water by gravity from Lake Afichigan. It had been decided that this would be too expensive, and that the shallow cut should be substituted and water should be obtained from the Des Plaines, the Calumet, the Kankakee, the Du Page and the Fox Rivers. The Canal Trustees desired to take and use the waters of the Des Plaines Eiver to feed the canal, which would thereby save them the greater expense of getting the water from Lake Alichigan. The plaintiffs, the Havens, desired to take and use the waters of the Des Plaines Eiver to drive their mill. There was one point u])on which the Canal Trustees, — mortga- gees of the property of the State, and the plaintiffs, — running the wnior-powiM* mill, — \v(‘r(‘ in agi’CHmuml; lliat was lliat IIk^ riven* ought not to 1)0 ooiiisidorod uavig'a})io. If it was, that woiihl inten*- foro witli tho plaiutitTs in using tho rivou l)y thoir dam for water power. if it was navigable, it would interfere with tho Canal Trnst(*es — mortgageos — in making tlie sliallow eiit and emptying tlie Dos Plaines Pivei* into the canal. The two ])arties, therefore, while they disputed as to who had the right to take and appro])riate the waters of the river, agreed in this: that the river was not navigable. They tiled a stipulation to that effect, and the case was submitted on the stipulation. The Canal Trustees proceeded to put a new dam across the river, known as ‘‘Dam No. 1,” and “On the 20th of April, 1848, the defendants diverted, or caused to be diverted into the canal * * the tvhole, or the principal part of the irate rs of said river.” The question debated was as to whether the plaintiffs, the Havens, were entitled to compensation for the injury and damage to their water power by this diversion of the Des Plaines Diver into the canal. The Court decided that they were. It was further decided that there was no Ninety- foot Strii) in diis Section 16, which had been granted to the State for school ])in*- poses by the enabling Act of Congress, April 18, 1818, and accepted by the State by tlie ordinance ado])ted by the Constitutional Con- vention of the State, August 26, 1818. The Congressional grant of the Ninety-foot Strip foi* the canal was not made until 1822; this School Section had ceased to be })ub- lic lands of the United States Government in 1818; Section 16 was, therefore, neither canal land, nor was it public land, through whidi the canal ran. The court also applied the general rule jireviously established in Middleton v. Pritchard, d Scam., 510, to these lands in Section 16; and decided that the ])laintiifs, as riparian owners along the river, owned to the center of the stream. Canal Trustees v. Haven, 11 111., 554, was the same case on fnr- iher appeal. In this case, the Court said: “It was manifest in this case from the report of the up- l)rais(‘i‘s, that in assessing tlie daniages, they considered the appellee's the owners of ])oth shores and the entii'e bed of the streain.” TJiis was found to be erroneous : 'Mirstead of owning the entire bed of the river, and having an exclusive right to the use of the whole of the water, they are the proprietors of only half the bed of the stream, and entitled to use but half of the water naturally flowing along the channel. The erection of the dam across the stream, by means of which the head of water was increased, and the value of the site and improvements enhanced, ivas unauthorized. The assessment of damages for the deprivation of the water, musit, therefore, be made with reference to the actual .value of the use of one half of the water naturally flowing along the channel, without taking into consideration any artificial ob- structions extending across the stream.” We respectfully submit: (1) That the stipulation and agreed case by the Canal Trustees, — mortgagees of the State property — that the river was not navig- able was beyond their power to make. The Canal Trustees were statutory officers. Statutes delegating powers to public officers are strictly construed, and all parties interested must look to the statute for the grant of power. Acts of these officers not within the terms of the statutes are void. 1. S M. Canal v. Calhoun, 1 Scam., 521. Diederich v. Rose, 228 111., 610. State of Illinois v. Delafield, 8 Paige’s Chancery, 528. See Division One of this brief. Part II. But the Flowage Contract is beyond the power of the Canal Commissioners, and the cases cited there. There is nothing in the Act creating the Canal Trustees that vested in them the power to stipulate and make an agreed case that the Des Plaines River was not navigable. (2) Even if the Canal Trustees had the power to make that stipulation and agreed case for the purpose of that suit, it would not be binding in any other suit. A consent decree and an agreed statement of facts for the pur- poses of submitting a particular controversy to adjudication, while binding upon the parties in any future proceeding arising between tli(‘ SMMK' i);n'ti(‘s, is in i\ suhs(Miu(‘ii'i pi-occKsliii^' h(;lw(H‘ri (ni(‘ of llio'so |)() Pa. St., 194. N A v i (iA BI Lrrv DE FI NITION DECLARATORY ACT E FFECT OF. ‘On respect to the great rivers of the State — snch as are navigahie by nature, and therefore public highways by the common Jaw — it lias been repeatedly declared, that the Mill- dam Act of 2od March, 1803, is but a license to the riparian owner, subject to be revoked whenever the interests of the ])ublic require it. This doctrine was applied in The Monon- yahela Navigation Company v. Coons, 6 A¥. & S., 112, to the Voughiogeny, which is one of the streams enumerated by Chief Justice Tilghman in Shrunk v. The Schuylkill Naviga- tion Company, 14 S. & E., 79, as among the ‘principal rivers’ of Pennsylvania. And, again, in The Suscjuehanna Canal Company v. Wright, 9 W. & S., 11, the same doctrine was ap- ])lied to the Susquehanna Eiver, which, as well as its principal branches, has always been considered a public river. And, once again, in The New York and Erie Railroad Company v. Young, 9 Casey, 181, it was applied to the north branch of the Susquehanna, always a navigable river according to the com- mon law definition that has obtained in Pennsylvania. “In all these cases, the right claimed by the riparian owner was a permissive right to use rivers, the soil of which had never been granted by William Penn, his successors, or the Commonwealth. The rivers, and the beds of the rivers, be- longed to the Commonwealth, and constituted part of the emi- nent domain. Private surveys bounding on them were stopped at low water mark. lYhen the Commonwealth, by its Legisla- ture, authorized riparian owners along such streams, to erect dams for their own convenience and profit, it ivas a sort of public license, like the fisheries and ferries, which, by numer- ous Acts of Assembly, were granted in all our i^ublic rivers. And being a mere license to trespass on the public domain, without any consideration received therefor, it had none of the indefeasibility of a contract, and might be revoked at the will of the sovereign, or be granted to another. “But in respect to the creeks and smaller streams, every- where found in Pennsylvania, the practice of the land office, whether under the Proprietaries or the Commonwealth, has been to include them in warrants and surveys, as part of the public lands. Streams thus falling within the lines of a sur- vey were covered by it, and belonged to the owner of the tract, who might afterwards convey the body of the stream to one 70 !) |)(‘i\s()ii, Mini iho adjoining* land to another. When any of this elass ol’ streams formed the boundary of such tract tlie grantee a(*(iuired title ad fihnn aquae: Coovert v. O'Connor, 8 Watts, 477. * * in England, those streams only are called nav- igable in whicli the tides ebb and flow; but witli us, all our public rivers, whetlier fresli or salt, are navigable; and lienee, a \’ery erroneous idea lias sprung that such rivers only are public higlnvays, and that, in the lesser streams, granted by the (\)mmon weal til to purchasers, the public have no rights until they are declared by law to be highways. This is a mis- ('onception, produced, no doubt, by the very indefinite term navigable — a word which may mean an ascending as well as descending navigation, by boats of considerable burden — or merely a descending navigation, by arks and rafts, at all sea- sons, or by arks and rafts in seasons of freshets. Our ideas of public and private rights in streams of water ought not to be dependent on so vague and indeterminate a word. ‘^If we go back to Magna Charta, we shall find it written in the 23 Cap. ‘Omnes hvdelli deponantur,' &c. — a clause which has been translated, ‘All weirs from henceforth shall be utterly ]nit down, by Thames and Medway, and through all England, but only by the seacoasts.’ This I understand to have been a formal declaration and vindication of tbe right of all up- stream people to have an unobstructed channel in streams capable of being used for transportation, not only for pur- poses of trade and commerce, but also for the ascent of fish, which sometimes were indispensable for subsistence. Accord- ingly, it is laid down by Lord Hale (see Hargrave’s Tracts, Be Jure Maris, cited in Angell on Watercourses, Sec. 535), ‘All rivers above the flow of tide- water are, by the common law, prima facie private; but when they are naturally of suf- ficient depth for valuable floatage, the public have an ease- ment therein for the purposes of transportation and commer- cial intercourse; and, in fact, they are public highways l)y water. ’ “This, I apprehend, is an exact definition of our creeks and smaller rivers, such as have been granted by warrant and sur- vey. They are private property, but if of sufficient capacity, at any stages of water, to be used for transportation of lum- ber or other goods, they are held subiect to that public ease- ment which our English ancestry guarded with great jealousy, as numerous old statutes subsequent to Magna Charta abund- antly attest. When, therefore, our Legislature declares such streams to be public highways, the act is merely declaratory of the conunon law, but beneficial, nevertheless, as bringing the stream within the protection of the remedial provisions of the Milldam Act of 1803. This latter act is, by its terms, ap- plicable to ‘any navigable stream of water declared hi; law a 10 piil)li(* liii»-liway, ’ and it is itself declaratory of the common law, ill the clause which forbids liirn wlio erects or maintains a dam Ho obstruct or impede the navigation of sucli stream, or pre- vent the fish from passing up tlie stream.’ “Now, to apply these rules and principles to the case in hand. Ingham was the owner of land under a patent issued dd November, 1786, and which was bounded by Towanda (h*eek. He was thus the absolute owmer of one-half of the stream — of the bed of it, and of all the water power it con- tained, subject only to the public’s right of passage for such craft as was suitable to the capacity of the stream, and to an unobstructed passage of fish. . In 1813, the Legislature de- clared this part of Towanda Creek ‘a public highway for the ])assage of rafts, boats, or other vessels.’ This did not abridge Ingham’s right of property. The Legislature could not take away, without compensation, property fairly vested in him. He was as truly and as entirely the proprietor of the premises, after the Act of 1813, as before. The water power was prop- erty, and it was his property. He might improve it by dam- ming his half of the stream, or, with the consent of his opposite neighbor, the whole of it; and of the water power so improved he could be no more despoiled, without compensation made to him in the forms of the constitution, than he could be deprived of the solid acres granted to him by the Commonwealth. “His dam must not obstruct the navigation or the fish, be- cause he took title from the Commonwealth, subject to that servitude or public right — one of the ancient English Hiber- ties,’ which Magna Cliarta rescued from oblivion — which nu- merous old statutes in the times of Henry IV. and the Ed- wards’ defined and defended — which the immigrants brought over with them, and which Penn expressly recognized in the 22d section of his first frame of government, adopted in 1683 — ^and which became, in this manner, an indefeasible condition of Pennsylvania tenures. The Milldam Act of 1803 was a fuller provision for the regulation of this public right, and supplied a statutory remedy for its infringement, but was not a license to Ingham to build on his own land. When he im- proved his water power he did it not as a tenant at will under a revocable license, but on the sure footing of that dominion which an owner exercises over soil that he holds in fee simple from his sovereign.” (36 Pa. St., pp. 200-203.) Texas — 1863. Selmcin v. Wolfe, 27 Texas, 68. The navigable streams within the State are public highways and are exclusively subject to the control of the State; and the Legislature is possessed of the authority to obstruct them 711 ('itlioi- wholly ()!• pai’lially, il* in its jiul^iiKnil IIk^ })ul)lic iritcn*- ost will he promoted tlierehy. I)iii it lias' always been the settled ])orK*y and eherislnid oh- je('t of the State to guard the navigable streaitis from obstriu'- tion, and to secure and improve them as the common high- ways of trade and travel. This policy will not be held to he abrogated, nor tlie enact- ments for its enforcement to be repealed by mere implication ; nor will a charter granted by the Legislature to individuals to bridge a navigable stream be held to authorize them to ob- struct its navigation, unless the right to do so is expressly granted or necessarily implied in the charter. The private act of February 10, 1858, authorizing B. Selman and others to erect a toll bridge across the iVngelina River did not confer upon the grantees the right to obstruct the naviga- tion of the stream. Obstructions to the navigation of a navigable stream, erected without authority of law, are nuisances. The Court : [j- (Angelina River) had been ex- pressly recognized' by the Legislature as a navigable stream (see Act approved February 7, 1853, extra session, 4th Leg., ]>. 21), and that the sum of three hundred thousand dollars had been appropriated and set a])art 1)y the Legislature as a s|)e- cial fund for the improvement of the navigable streams of the State. * * * “This brief reference that we have made to a few of the public statutes upon this subject makes it evident that it had been, previous to the ])assage of the ])ilvate act under which appellants claim, the settled policy and cherished o])ject of the State to guard its navigable streams from olistruction, and to secure and improve them as the common highways for trade and travel for such of its (‘itizens as might wish to use them for these purposes. Did the Legislature intend by the ]u*i- vate act for tlie benefit of the ap])el hints to (‘hange this long- settled policy, and to repeal these general public laws, so far as they might be ap})li(ri])le to the Angeliua River above said bridge! If such was the iiiteution of the Legislature they have not manifested it by an express and unetpiivocal dei'- laration indicating their ])urpose. And if siu'h of these laws as have direct reference to tliis stream shall lie held to be re- pealed, and the general policy upon this subjeid with refer- ence to it must be regarded as abrogated, we shall have to draw these conclusions as matters of inference and deduction from the supposed conflict between the provisions of this ])ri- vate act and the pre-existing laws, ft cannot be said, however, uiion a fair and just construction of this private act, that 7\2 tliero is any n(M'(3S'Sarv (‘onfiict between it and tlie })reviou8 statutes to wliieli we have adverted.’’ (27 Tex., pp. 71, 72.) Virginia — 1840. Harrison (County) Justices v. Holland, 3 Grat- tan (Va.), 247. An Act requiring the County Court to lay a levy upon the titli- ahles of the County for the purpose of improving the navigation of a stream lying within it, though passed without the assent of the people (of the county), is constitutional. The Act of March 5, 1838, declared Simpson’s Creek a public highway and required owners of dams therein to construct slopes of certain dimensions within two years, and required the County Court to ascertain the cost of the slope and levy it upon the County as a tax and allow tlie same to the owner of the dam. The Act further required the owners to keep the slopes in con- stant repair, and for violation provided that the dam should be abated. In this case the dam owner was given a mandamus to compel the levy. The following interesting paragraph appears : ‘‘On the 17th of May, 1841, the County Court of Harrison " made an order that the owners of dams on Simpson’s Creek be notified not to proceed further in the preparation of ma- terials or otherwise, or in reference to the erection of slopes in or at their respective dams, until after the next General As- sembly, in order that steps may be taken for the repeal or modification of the Act of Assembly in relation to Simpson’s Creek, and notice of this order was directed to be given to all the owners of dams upon the creek. “At the next June term of the court. Stout and Holland moved the court to rescind this order, but the court refused to entertain the motion.” The effect of such statutes is illustrated by a statute declaratory of the converse, viz. : that the AVheeling Bridge was not an obstruc- tion to the Ohio River. The effect of the decision is thus sum- marized in ?\IUler v. Mayor of New Yorh, 109 U. S., 385, 396: “In the AVheeling Bridge case, a bridge erected over the Ohio River at ‘Wheeling, under an act of the Legislature of Virginia, which prevented the passage of steamboats with high chimneys, was judged to be an unlawful structure; and llu' ('oiirl ()i-(i(‘i-(‘(l that it should I'aiscxl so as to afford a froe passago to tlio steamers, or that soiue other [)lari should be a(iot)ted, by a day designated, which would relieve the nagiva- tioii from the obstruction, or that the bridge should be abated, Oongress thereupon interfered and declared the bridge, as it Avas built at its existing elevation, to be a lawful structure. The court then held that the objection to the bridge as an ob- struction to the navigation of the river was removed; that although it might still be an obstruction in fact, it was not so in contemplation of law, and the decree of the court for the abatement of the bridge could not be enforced. ‘There was no longer,’ said the court, ‘any interference with the enjoy- ment of the public right, inconsistent with the law, no more than there would be where the plaintiff himself had consented to it after the rendition of the decree.’ For its interference with the public use of the stream no individual could complain, as the power which could control and regulate that use had made the structure creating the interference a lawful one. 18 How., 430.” VII. Judicial Notice. THE POWER TO TAKE JUDICIAL NOTICE IS EXERCISED ALIKE BY COURTS OF REVIEW AND COURTS OF FIRST INSTANCE. Both courts are alike endowed with the ])ower and both courts are alike charged with the duty to exerdse it. Whatever the trial court could take judicial notice of the court of review can take judicial notice of. If the trial court failed to exercise the power in a matter calling for that exercise, then all the more it is the duty of the court of review to exercise that ])ower and take the judicial notice which is necessary for the ascertainment of the truth. And this is with stronger reason the rule in cases involving a public interest. Courts take judicial notice of matters of current history and of standard works in which those matters of current history are recorded. In the case at bar the (piestion of what uses have been made of the Des Plaines Kiver and under what circumstances those uses have been exercised, is a matter of the current history of 714 Illinois and the nation. To be sure tlionsands of uses and acts of navigation of the Des Plaines Piver liave oc'curred wliicli are unrecorded for every one tliat has been recorded, but the re- corded uses and acts of navigation of the Des Plaines River are iiiatters of history of whicli the trial court and the court of review alike take judicial notice. The more fully to secure tlie exercise of this p>ower by the trial court a large number of works of history were produced and their character and standing testified to by witnesses. And short passages were read to the court and by him for- mally received in evidence or excluded in different cases. From some of the books short passages only were read and from some no passages at all were so read to the court. Again public documents of the State and of the United States, reporting acts of the Government in surveying the river for im- provement, w^ere similarly produced and referred to. Again, matters of science are proper subjects of judicial no- tice both by trial courts and courts of review. So volumes of re- ports by the engineer corps of the United States bearing upon surveys and the data of navigation as a matter of science were produced to the court and short passages read therefrom. Some of the volumes produced were read from in short passages only and some not at all. These books are public documents, official publications of the United States Government; and the matters which they contain are all matters of judicial notice. Again, numerous former statutes of the State, and resolutions of the General Assembly, were produced and called to the atten- tion of the court. Some were read in full, some w^ere read in part, some were produced but not read and some were not even pro- duced, but were commented on or referred to in the course of the hearing. All of these alike, whether produced and formally offered in evidence or not, are proper subjects of judicial notice, and will be judicially noticed l)y this court whether 1)rought to the attention of the court below or not. It was contended contra, and held by 715 the trial (‘oiirt, that there was no (X'easion to olTer any of tlnnn in evidence or encninber the record with them in any wise he- (*aiise this court and all future courts to which the case ini^ht go would take judicial notice of them in any event and it is true tk- v^^Lirts will so do. This position was undoubtedly correct. The act of producing and offering some of them was the act of abun- dant caution, but furnishes no measure of the ability and discre- tion of this court in the exercise of its power of judicial notice. The defendant adopted the policy of merely calling attention to such matters without introducing them in evidence. “Counsel for Defendant: * * * j am not going to offer them in evidence because I understand the court takes judi- cial notice of them/’ etc. (Abst., p. 1064.) It is the right and duty of the court of review to examine any and all of them as far as it deems necessary to ascertain the truth; — and not only that, but this court with its superior edu- cation and means of information, has at its command large stores of historic and scientific knowledge which were beyond the ken and reach of counsel in the trial court. And all these are part and parcel of the judicial knowledge and legal equipment which this court of review brings to the discharge of its task. Far from being confined to the judicial notice whicli the trial judge may have taken, this court, in the discharge of its public duty, will leave no matter of history or science that is within its range and relevant to this subject, out of account. These pro})ositions are illustrated by the authorities cited in the brief. In State v. W abash Paper Coaipany, 51 Northeastern, 949, the Appellate Court of Indiana, after calling attention to the fact that the “Western Gazetteer” for 1817, p. 89, had stated that the Wabash Eiver was said to be navigable for keel boats for four hundred miles; and that the “Indiana Gazetteer,” published in Indianapolis in 1850, at page 21, stated that the Wabash River was navigable for four hundred and fifty miles; — stated as fol- lows : “Courts take judicial knowledge of the geography of the country, and hence judicially know that the Wabash and Miami Counties are less than 400 miles distant from the jnoutli of tlie Wabash liiver. We also judicially know that the Cities of Wabash and Peru and other towns in said (‘ounties are situated on the banks of such river. From what we have said and the authorities cited, we think it must be held that the Wabash Kiver is a navigable river, and hence a public highway.” In McCoy v. Columhian Exposition, 18(1 111., ‘35(), in a suit on the subscri])tion to the capital stock of the “World’s Columbian Ex- j)osition,” compliance with the condition in the subscription that the exposition be held in Chicago need not be proved, since the fact is historical and of such notoriety that the Court will take judicial notice thereof. The Court says: “The subscription contained the condition that the exposi- tion should be located in Chicago, and it is said that there was no proof of the performance of that condition. The con- stitution of the State was amended to authorize the corporate authorities of the City of Chicago to issue bonds in the aid of the exposition to be held in the City of Chicago, and the fact that it wuis located and held there appears from public acts of Congress. From numerous such acts it became a historical fact of such public notoriety that the courts wdll take judicial notice of it.” The above case was decided in the Appellate Court for the First District, and is reported in 87 Illinois, Appellate 605. In the opin- ion in the Appellate Court by Mr. Justice Fbeemax", the point of judicial notice is not made at all, but is raised for the first time in the opinion in the Supreme Court by Mr. Justice Cartwright, in the words above quoted. 717 IX. TIIK VAHIABLE A^'ID PR()GRl^:SSlVE DEVELOPMENT OF NAVIGATION DOES NOT DES^rROY THE PUBLIC RIGHT IN STREAMS ORIGINALLY NAVIGABLE. RECENT DEVELOPMENTS HAVE GIVEN FRESH VALUE TO SHALLOW DRAFT NAVIGATION. A. AN EXISTING PUBLIC RIGHT OF NAVIGATION IS NOT LOST BY^ CHANGES IN THE CONDITION OR USE OF THE STREAM. B. BUT CHANGES IN THE STREAM BENEFICIAL TO NAVIGATION IVILL ENLARGE THE RIGHT OF NAVIGATION. C. NAVIGATION IS A PROGRESSIVE ART. CHANGES IN THE ART OF NAVIGATION AND TRAVEL MAY ENLARGE, BUT NOT DIMINISH, THE EIGHT OF NAVIGATION. A. AN EXISTING PUBLIC RIGHT OF NAVIGATION IS NOT LOST BY CHANGES IN THE CONDITION OR USE OF THE STREAM. People V. Page, 39 N. Y. App. Div. 110, relative to the Mohawk Biver. The court there said : ^‘The fact that at present under the changed conditions in the stream, its use for commerce or navigation is insignifi- cant, does not destroy the proprietary rights of the State, or give the defendant the right to appropriate the stream and bed to his individual use.’’ In Attorney General v. City of Eau Claire, 37 Wis., 400, Kyan, C. J., said: ‘‘The actual navigation may he little and the obstruction might be slight — ^so the affidavits tend to show— but neither the right nor the wrong is a question of degree.” No intention will be implied to discontinue the right of wiay in the stream. Conn. River Lumber Co. v. Olcott Falls Co., 64 N. IT., 290; 13 L.E. A., 826. 71S B. C'IIAN(JKS IN TllK STREAM INCREASINCJ ITS DEPTH AND IMPROVING THE NAVIGATION ENLARGE THE RIGHT OF NAVIGATION. A STREAM SO IMPROVED IS TO BE ('ONSH)ERED IN ITS LATTER CAPACITY. Hdudte V. Warren, 218 111., 108, 120. There the court said : ‘‘SoTiie years ago a lock and dam was built at LaGrange, lielo'w the lands, which raised the water of tlie lake about 18 inches; and afterward the Sanitary District Canal was opened, raising tlie water tliree or four feet more, so that the natural stage of the water in the river is about five feet higher than in its natural condition. * * * Appellant did not lose his title to the lands by their submergence, and we do not under- stand counsel for appellees to claim that he did, except as against a supposed public right of navigation, hunting and fishery. * * * The evidence sufficiently shows that there are considerable spaces on those lands permanently sub- merged to such a depth, that there is a right of navigation in the public.’^ The same Sanitary District Canal, which submerged those lands and increased the depth of that river three or four feet, has in- creased the depth of the Des Plaines Eiver throughout the naviga- ble reach here under consideration by the same three or four feet. The navigability of a stream so improved is to be judged by its enlarged capacity. Mendota Club v. Anderson, 101 Wis., 479, s. c. 78 N. A¥., 185. Reg. V. Betts, 16 Q. B., 1022. This principle works both ways; the development of the art of navigation by the use of larger vessels requiring the use of greater depths of water, will extend the paramount right of navigation, so that structures placed under the river, which were lawful and did not interfere with navigation when constructed, will become un- lawful by reason of such obstruction resulting from the increased use of the river. West Chicago St. Rg. Co. v. The People, 214 Ilk, 9, 20. The right to have water flow in an artificial channel and to flood liuid whicli it would not overflow ruiturnlly may be a(^(iui red })y pryscripiion. Vail V. Mix, 74 111., 127. Ballard v. Sfruclonan, 128 Til., (>80. T<)f(d V. Bonnefoy, 128 111., 088. And the public which turned the water in for public purposes at its own expense acquires this right the same as a private person. Beidler v. Sanitary District of Chicago, 211 111., 028, 085. So, on the other hand, the development of navigation by the use of new processes involving only a shallower depth, will enable navigation to be carried on over waters which formerly were not used, and the erection of dams increasing depths which were orig- inally shallow, to an amount sufficient for the use of the stream, will enlarge the right of navigation accordingly. Mendota Club v. Anderson, 101 Wis., 479. The right of navigation is paramount, and when increased needs for navigation require it, all uses and claims inconsistent with the right of navigation must give way. Bridge Co. v. IJ. 8., 105 U. S., 470. State of Pennsylvania v. Wheeling Bridge Co., 13 How., 518. U. 8. V. City of Moline, 82 Fed., 592. Scranton v. Wheeler, 179 U. S., 159. Gihson V. U. 8 ., 166 U. S., 269. U. S. V. Bellingham Bay Boom Co., 176 U. S., 211. Wisconsin — 1899. Mendota Club v. Anderson, 101 Wis.,. 479; 78 N. W., 185. This was a proceeding to restrain the defendant from boating upon land claimed by the plaintiff. The defendant made the fol- lowing defenses : ‘‘ (7) That what is known as ‘Farwell Dlam’ was completed during 1850, at the outlet of Lake Mendota on the south side thereof. (8) That j)rior to the erection of that dam there was a sand bar extending from at or near the high land, east- erly of the south end of Cattish channel, westerly to the east side of the south end of the channel, and extended from the west side of the south end of the channel, in a westerly direc- 7^20 tioii, towards dry land to the west; tliat the bar, before the erection of the dam, was exposed above tlie surface of the water for a considerable distance from the west side of the channel, but not for the whole distance to the west shore, at the west; that before the dam was erected, and at ordinary stages of water, a portion of the bar west of the Catfish chan- nel was submerged and (‘overed by water to such a de]:)th as to permit rowboats to pass from the body of the lake south of the bar to the water north thereof, as stated. * * '* (12) That after the erection of the dam the waters of the lake were raised to some extent, and the dry land referred to was somewhat lessened in extent, so that a less portion of the bar, and the land upon which grass grew, near the Catfish channel, remained exposed in the ordinary stages of water. (13) That since the erection of the dam the depth of the water in the area north of the meandered line, at ordinary stages of water, has varied from shallow water in certain places to the depth of a number of feet in other places. (14) That the Catfish Creek is a navigable stream, and is and has been navigable for all such boats as are commonly used upon the lake. (15) That since the erection of the dam the area of the water west of the Catfish channel, and south of Six Mile Creek, described, is and has been continuously navigable for rowboats and sail- boats, and has been continuously used for navigation by small boats in connection with hunting, boating and fishing. ’ ’ (78 N. W., 185, 186-7.) The court found these defenses sustained by the facts and the defendant appealed. The court above states this contention thus : ‘‘Counsel for the plaintiff contends that the Farwell Dam, completed in 1850, raised the water of the lake, at that point, four feet higher than it was previously; and that it raised the water on the premises in question, at an ordinary stage there- of, some two or three feet higher than it was previously. The court found that, before the erection of the dam, and at ordi- nary stages of water, a portion of the bar west of the Catfish channel was submerged and covered with water to such a depth as to permit rowboats to pass readily from the body of the lake south of the bar to the water north of the bar ; and that there was water upon a considerable portion of the area in- cluded within the government survey of the two sections men- tioned ; and that a portion thereof contained bogs ; and that aside from such bogs and hard land near the west side of the Catfish channel there was an area, nearly as large as now cov- ered by water, which could not, before the erection of the dam, < be used for agricultural purposes. **#*#*# “That dam was n permanent structure, designed to be sucb. 721 and lias so roinaiiiod for nearly half a eentnry. ddierc^ is no (*laiin that it was an iinilawful stiau'tnre. 7\lthon^“h an artifieial stnudnre, whi(‘h eonsiderahly increased tlie depth, the extent, and hi-eadth of the waters on the premises in cpiestion, yet the jinhlic. had the riglit to navigate such waters after they were so iiun'eased in vohnne, tlie same as tliongli tliey had always i*emained in that condition. Whisler v. Wilkinson, 22 Wis., odd; Volk V. Eldred, 28 Wis., 410; Weatlierhij v. Meiklejohn, 50 AVis., 78; .18 N. W., 697; Smith v. Youmdns, 96 AVis., 108; 70 N. AV., 1115, and cases cited by Mr. Justice Pinney on page 110, 96 AA^is., and page 147, 70 N. W. Certainly, persons navi- gating the lake cannot be required or expected to carry with them a cliart and compass and measuring lines, to determine wliether they are at all times within what were the limits of the lake prior to the constiaiction of the dam. The question as to whether a riparian owner may rightfully till in or build out to navigable water, suggested by counsel, is not here involved. As to the Cattish Creek, the federal statute, as it has existed for more than a century, declares that ‘all naviga])le rivers, within the territory occupied by the public lands, shall remain and be deemed public highways; and, in all cases, where the opposite banks of any streams not navigable belong to differ- ent persons, the stream and the bed thereof shall become com- mon to both.’ Eev. St. U. S., 2476; Shively v. Boivlhy, 152 TI. S., 82, 88 ; 14 Sup. Ct., 548. The federal statutes, regard- ing the duties of surveyors of public lands, cited, apply to such navigable streams. It is conceded that the portion of the Cat- fish in question is a navigable stream. Willoiv River Cluh v. Wade (AVis.), 76 N. AAh, 278. AVhat has been said about the raising of the waters of the portions of the lake in (piestion applies equally to the raising of the water and broadening and dee})ening of the channel of Catfish Creek. * * * AVe must hold that the defendants hy going upon the waters in (juestion with their lioats, as found by the (‘ourt, did not trespass iq)()n the lands of the ])laintiff. The judgment of the cii’cuit court is affirmed.” (78 N. W., 188, 190.) The point in Smith v. Yonman, 96 AVis., 108; 70 N. AV., 1115, cited in the foregoing case, is thus (hted : “1. AVhere the natural outlet of a lake is closed, and an artificial outlet made, near whicli a dam for milling purposes is constructed and maintained for forty years, whereby the water is caused to flow back over the lands of other ri])arian owners, rendering said lands valuable as pleasure T*esorts, the dam owner, so long as he retains his easement, has no right to lower the water below the level of the lowest })oint at which it has been during said period, so as to leave the shores marshy and unhealthful, and inq)air the value of the ]*i{)arian })roperty. * * * * * * * " “Tliat Lake Leiiiali, as it now exists, originally consisted of two meandered lakes, wliieli were separated by a strip of marsh about HO rods wide, tlirougli Vvdiieb ran a small stream. The outlet of the more northerly of the lakes was }>y a sinalj S'ti-eam ('ailed I>enlah River, wliicdi runs northerly, and tlieri easterly until it empties into Mnkwanago (h'eek, and said (‘reek I'lins into Fox River, [n 1808 a dam vras built across the outlet of said lake at about the ])()int wliere it left tlie lake, and the waters of tlie lake were raised a few feet, creating l)()wei- for a sawmill erected at tlie dam. After 1816, and be- fore 1852, the original outlet was (dosed hy an embankment, and has ever since so remained, and an artincial outlet to said lakes was created, at which point another dam was cre- ated, raising tlie waters in said lake to tlie height of 6 feet above tlieir natural level, and 18 inches higher than by the former dam, ci'eating a body of water known as ‘Mill Lake,’ and a new and artificial outlet for the said lakes, so that their waters, after passing over such dam, flowed b}^ a new channel into said Beulah River, and in consequence of such dam the waters of the said tvm lakes were so raised as to flood to a considerable depth the marsh land formerly separting them, and making of them one body of water upwards of three miles in length, and varying in width from a quarter of a mile to one mile and a (piarter, and an area of about 900 acres. All these changes were made by Ball & Mower, the remote grantors of H. A. Youmans, under and through whom the defendants claim their rights and interests ; and Ball & Mower built upon a site near said dam a grist mill, which was used and operated by the power thus provided until it was destroyed by fire in 1876. * * * One effect of the construction of said artificial out- let, and the diversion thereto of the natural flow of tlie waters of said lakes, and the construction and maintenance of said dam and embankment, was to deepen the waters of the lakes, and set said waters up and back against the hard and higher banks and to make said lakes navigable for rowboats, small sailboats and steam launches, and to make the banks eligible and desirable sites for summer cottages and summer resorts, and to make said lakes a desirable place for fishing, boating and recreation, and to make the margin of the lake touch the grassy banks, and submerge the boggy and marshy shores, as they before existed, and to render the banks readily accessible by small row and pleasure boats. About tlie year 1888, and from time to time thereafter, sundry of the ]daintiffs, relying upon said conditions, and the level of the lake as then existing, and as having so uniformly existed for more than 40 years, built summer homes for themselves and families, or summer resorts for recreation, and purchased divers lots and parcels of land fronting and bounded on said lakes for that purpose, niul lund'O divers and sundry valuable iinpi'ovcniHuits on said lots to that, end, as did many oilier })ei'sons. * * * After tile destrnetion of the 'niill in 1H7() the powei* ereatofl hv the dam had not been used. ^ ^ ‘‘That loNvering the waters of said lake will sulistantially im})!iir the value and availaliility of the })areels and lots of land owned by the ])laintiffs and tionnded on tlie lake; tlie waters will recede from its hanks, and in almost all |)laces strips of slimy, boggy and marshy shore .will he uncovered, })reventing access by boats to the plaintiffs’ piers, and will substantially impair and well-nigh destroy, the beauty of the lake, and its adaptation and availability for snmmer resi- dences and snmmer resorts, and make the vicinity imliealtlifnl, and render the plaintiffs’ improvements practically valneless for the purposes for which they were constructed. Shortly be- fore the action was commenced, said bnlkheads were replaced to the height of two feet or more, and so that the waters of the lake rose and overflowed the bnlkheads. The plaintiffs asked indgment that the defendants, their agents, etc., be per- petually restrained from in any way raising, taking out, or removing from the :said dam any of the ])nlkheads or waste or flash boards in or on the same, and from in any way throwing- down, lowering or opening the dam and from in any way inter- fering with or drawing down the water in Lake Beulah. The defendants insisted upon their rigid to use and withdraw the waters of said lake, according to their needs and discretion. ‘‘It has long been settled that the artificial state or condi- tion of flowing water, founded upon ])rescri})tion, becomes a substitute for the natural condition previously existing, and from which a right arises on the part of those interested to have the new condition maintained. The water course, though artificial, may have originated imder such circnnistances as to give rise to all the rights that i'i])arian pro])i*ietors have in a natural and |)ermanent stream, or liave been so long used as to become a natural Avater course })rescriptively. * * * It is u})on this groimd that when the natural outlet of Ij-ake Beulah Avas closed, and so remained for over 20 years, the artificial outlet at that time opened, and since maintained during that period, became the natural outlet, Avith all its legal incidents and consequences. In Belknap v. Tyimhle, M Ihiige, 577, ()05, it was held ‘that the rule must ])e reciprocal ; that the pro])rie- tor of land at the liead of a stream, avIio changes the natural flow of water, and has continued such change for 20 years, cannot afterwards be permitted to restore tlie fioAV of water to its natural state, when it Avill have the effect to destroy the mills of other proprietors, which have been erected in refer- ence to such change in the natural flow of the stream.’ Washli. Kasein. In jllaflieu'son v. TIoffm(i7i, 77 Mich., 421, 4‘)4, 42 N. W., 879, the rule tliiis stated in Belknap v. Trimble, supra, was approved. Lampman v. Milks, 21 N. Y., 505; Rob- erts V. Boberts, 55 N. Y., 275. It is also supported by Delaney V. Boston, 2 liar. (Del.), 489-491 ; Middleton v. Gregorie, 2 l\ich. Laws, 031-087.” (70 N. W., pp. 1115-10-17.) The same rule is laid down in Wetherby v. Meiklejohn, 50 Wis., 78; 18 N. AV., 097. The court applied the same principles and quoted Coulson & Forbes, thus : ‘‘In the recent English work of Coulson & Forbes on the l^aw of AVaters, page 410, it is said that ‘where a navigable river changes its channels, although the soil of the bed and the right of fishing may be vested in the owner of the adjoining land, so as to bar the right of the crown to the bed and of the })uhlic to the fishing, it would appear that the right of naviga- tion will follow to the new channel, the test being whether the river remains tidal.’ ” (13 N. AY., 098-099.) C. NAVIGATION IS A VAEIABLE AET. CHANGES IN THE AET OF NAVIGATION AND TEAVEL MAY ENLAEGE, BUT NOT DIMINISH, THE EIGHT OF NAVIGATION. The Wheeling Bridge case, 13 How., 518, 561-2, plainly supports this proposition. In a state of nature, the Ohio Eiver did not ad- mit of the passage of boats of deep draft and heavy loads, with tall chimneys and pilot houses, and it was only as improved that the river presented a highway to which the bridge was an obstruction. The commissioner especially found (p. *559) : “1. That the bridge is not an obstruction to the free navi- gation of the Ohio by any vessels propelled by sails. “2. That the bridge is an obstruction of the free naviga- tion of the Ohio by vessels propelled by steam. ’ ’ The court held the bridge an unlawful obstruction. The art of navigation had been enlarged by the invention of steam and by the improvement of the river. As the court says, page *561, “Appro- })riations by congress have been frequently made, to remove ob- structions to navigation from its channel.” The Wheeling Bridge ease necessarily involves the })rinei})l(‘s that the right of navigation grows pari passu with the iniprove- inent of tlie stream and tlie improvement of the art. The Wheeling I>ridge did not iiiterfere with navigation of the type that had ex- isted on the stream for a century before tlie introduction of steam vessels. The Wheeling Bridge did not interfere with navigation of the type that had existed before the improvement of the channel, but it did interfere with navigation of the kind developed by the im- lirovement of the cliannel and the introduction of steam ; therefore the court enjoined the maintenance of the bridge and decreed its removal. The right of navigation enlarged to correspond with the improved stream and the improved method of using it. Taney, C. J., dissented in that case — partly upon the same grounds which he embodied in the dicta in Strader v. Graham, 10 How., 82. The Wheeling Bridge case originally came before the court at the December term, 1849 (9 How., 647). The dissent for lack of jurisdiction was entered by Daniel, J. (who concurred with Taney, C. J.), at the very first presentment of the case (9 How., 659). That dissent was renewed on the merits (13 How., 579), and after the other questions were disposed of, Taney, C. J., and Daniel, J., again dissented on the ground that the draw provided for was larger than need be. (13 How., 627.) Finally congress passed a statute legalizing the bridge. After the passage of the statute, a storm broke down the bridge. The State of Pennsylvania thereupon obtained a default injunction against its restoration. The defendant disregarded the injunction ; but the court (three judges dissenting) declined, as a matter of discretion, to make the injunction permanent, or to })unish the con- tempt. (18 How., 421.) It was decided on the merits at the December term, 1851. (13 How., 518.) If the court had foreseen the mis-use of those dicta in the Stra- der case, as they did in the Wheeling Bridge case, Taney opinion would have been a dissenting opinion in the one case as well as the other. That ('as(‘, its(‘ir, had important politic-a! a.s})ects, whifdi it is urn iiecossai-y to discuss now, hut it })oi-e an intimate I'elation to the [)oIitical asi)ects of the Dred Scott case. rliistice Benj. R. C'URtts wrote concerniing the same: remem1)er })eing told that the opinions of Judge Daniel and (diief Justice Taney in the Wheeling Bridge case were ])uhlished withoiit the knowledge of the court and extensiveiy (drculated in Virginia and west of the mountains. 1 thought at the time this was done to })romote the views of those in whose favor those o})inions were; and it did not occur to me that such a ])ublication was disres])ectful to myself and to* the other judges \Vho concurred in tlie opinion of the court.” (1 Life and Writings of B. R. Curtis, p. 218.) i\lr. Justice McLean in delivering the opinion of the court said: “There is no better evidence of utility than the ])rogress made in the structure of steamboats and of the machinery by which they are propelled. Men wdio are engaged in naviga- tion learn by experience, and adopt that which will be most conducive to their own interests.” (13 How,, *573.) “However numerous these roads may l)e, there can be no doubt that, like similar roads in other parts of the country, their cars will he loaded with freight and passengers. But it may not follow that the Ohio and our other rivers will be de- serted or their business reduced. We have an extent of river coasts, counting both shores, exceeding twenty-hve thousand miles through countries the most fertile on the globe. This is a greater distance than the combined railways of the world. That our railroads, as avenues of commerce, may develop our resources in a greater degree than is now anticipated, must be the desire of every one. But the great thoroughfares pro- vided by a beneficent Providence, should neither be neglected nor abandoned. They will still remain the great arteries of commerce.” (13 How., *576.) “The protection of the river commerce is by no means lios- tile to any other. The multiplication of commercial facilities will, in the same pro|)ortion, increase the articles of trade. “If viaducts must be thrown over the Ohio for the contem- plated railroads, and bridges for the accommodation of the nu- merous and rising cities upon the banks of the river, it is of the highest importance that they should not he so built as mate- rially to obstruct its commerce. If the obstructions which have been demonstrated to result from the Wheeling Bridge are to l}e multiplied as these crossways are needed, our beautiful rivers will, in a great measure, be abandoned. An experience of forty years shows how much may be done in the structure of steamboats, in the improvement of their machinery, and tlu‘ propell’m^i*’ power, to iiu'icviso ili(‘ sixmmI nnd tli(‘ (‘oinroi‘1 of that mode ol* transportation, under a ('ontiniKMl r(*diu'tion of expense. I>nt it the limit of advance, in this resjxict, has already been ])assed, and a retrograde movement is necessai'v, hy rejecting the imi)rovements reeommemled by ingenuity ancl experience, we close our eyes to one great sonn'e of oni* pros- })erity. What would the AVest now have l)een if steam liad not l)een introduced upou our rivers, and theii" navigation had not remained free! AVithout an outlet for the products of a })ro- lific soil and tlie instruments of mechanical ingenuity, the coun- try could have made but little advance.” (13 How., *577.) The size of boats upon' the Ohio in 1850 is shown by the report of the AA^heeling Bridge case. The largest boat on the Ohio at that time was the Messenger. ^‘The Alessenger, No. 2, came out in the winter or spring of 1849, was 242 feet long, and has chimneys 76 1-3 feet high.” (13 How., *569.) It gives dimensions of seven boats 200 feet and upwards in length, and three boats less than 85 feet in length ; and as to these three, states: ‘‘They were all of much larger dimensions and had much taller chimneys than the old boats/’ The smallest dimension given is that of the Buckeye State, 74 feet 8 inches in length (p. *571). So that prior to 1849 “old boats” that were undei* 74 feet in length were the order of the day. In Executive Document 264, Deport of Ckiptain Alarsha!!, 1890, ]). 118 (at Abstract ])]). 656-660), are given lists of boats recpiiring less than 7 feet, and others i-equiring 7 feet and upwards in de[)thy which were plying on the Alississi])pi Diver and its trilmtaries, according to the official lists which were })uhlished in 1889. These tables give the names of 33 boats of gi'eater lengtli than the Messenger, and 16 boats which wei'e less than 74 feet in length; the shortest, the AVoodson of Alem])his, being only 42 feet long, and carrying 219 tons; while the longest was 304 feet long, and carried 1,122 tons. In the forty years between the building of the Messengei' and that report on the AA^oodson, boats of high capacity and tonnage had develoi)ed, which were only half as large as the Buckeye, rmd. 71^8 on the other liand, l)oats Arhieli were 25 per eerit longer than the iMessenger. Blit the great develojiinent of steamboat eonstruction was in the direetion of larger boats. Captain Marsliall in liis report, page 7, speaks of lioats 300 feet long as the largest ''since the loss of the great cotton carriers.” CHANGES IN THE ART OF NAVIGATION. The witness Palmer said: "In the manufacture and use of steam vessels from the time it began, it grew progressively larger, and the use of 'Steam vessels was made more burdensome in the United States, by having steam boiler inspection, a licensed pilot and a licensed steam engineer examined under the rules of the Fed- ral Grovernment. These burdens did not apply to freight boats below 50 feet.” (Abst., pp. 318, 319.) The Grand Kepublic was burnt at St. Louis in 1877. ("Gould’s Fifty Years on the Mississippi,” E. W. Gould, St. Louis, 1889, p. 436.) This date may roughly approximate the turning point in the history of river navigation. The steam towboat, which, though small in dimensions, is great in power, came in at this time as the giant cotton carriers went out, and, carrying no passengers, itself a whole fleet, all towing barges, of freight, coal, cotton, iron and grain, that used to form the staple of the steamboat traffic; and the great steamboat disappeared. The railroads did the rest. Mark Tivain, the most celebrated pilot of the Mississippi River, left the river in 1861. In his "Life on the Mississippi,” chapter 22, he says : "After 21 years’ absence, I felt a very strong desire to see the river again, and the steamboats. j started vrest- ward about the middle of April (p. 247).” He described what he found at St. Louis in 1882 thus : "But the change of changes was on the 'levee.’ This time a departure from the rule. Half a dozen sound-asleep steam- boats, where I used to see a solid mile of wide-awake ones. * * * Half a dozen lifeless steamboats, a mile of empty wharves, a negro fatigued with whiskey, stretched asleep in a wide and soundless vacancy, where the serried hosts of com- merce used to contend. 729 “('a])taiii Mai-yal, wialiii^’ 45 yeai'S a^o (i. (*., in 18^)74)), says: ‘St. Louis has 20, ()()() inhabitants. 44io ]‘!V(‘r ahi-(iast ot* tho town is crowded w-itlL steanilioats, lying in two or thiaMi tiers. ’ “Tlie towboat and the railroad had done their work, and done it well and completely. The mighty bridge, stretching along over our heads, had done its share in the slaughter ami spoliation. Eemains of former steamhoatmen told me, with wan satisfaction, that the bridge doesn’t pay. Still, it can be no sufficient compensation to a corpse to know that the dyna- mite that had laid him out was not of as good quality as it liad been supposed to be. * * * ^^Mississippi steamboating was born about 1812; at the end of thirty years it had grown to mighty proportions; and in less than thirty more it was dead. A strangely short life for so majestic a creature. Of course it is not absolutely dead; neither is a crippled octogenarian who could once jump twen- ty-two feet on level ground; but as contrasted wuth what it was in its prime vigor, Mississippi steamboating may be called dead. ^Mt killed the old-fashioned keel-boating, by reducing the freight trip to New Orleans to less than a week. The railroads have killed the steamboat passenger traffic by doing in two or three days what the steamboats consumed a week in doing; and the to wing- fleets have killed the through-fi*eight traffic by dragging six or seven steamer-loads of stuff down the river at a time, at an expense so trivial that stemboat competition was out of the question. “Freight and passenger way-traffic remains to the steam- ers. This is in the hands — along the two thousands miles of river between St. Paul and New Orleans — of two or three close corporations well fortified with capital ; and by a])le and thoroughly business-like management and system, these make a sufficiency of money out of what is left of the once pro- digious steamboating industry.” (Mark Twain’s “ Life on the Mississippi,” pp. 254-5-6-7.) The forebodings of Mr. Justice McLeax, as to the effect of rail- road bridges were justified. Kail road bridges have done much to interfere with river naviga- tion, but they have not deprived the public of the public right of way along these highways of nature. People v. Gutchess, 48 Barb., 656. There the Chancellor said : “The court found that the river had been declared a ])ublic highway by the Act of the Legislature in 1813 ; and in the early seitleiiioiit of tlie country was occasionally navigated in sea- sons of high water l)y rafts and boats of small size; hut that it had not been navigated for many years and is not now a navigable stream. That tliere are already erected and in use 12 bridges across the river, with tiie average dis- taiK'e of about three miles from each other. * * * j think 1 can not give any force to this report as against the State, and T can not overlook the fact that the Legislature has asserted for tlie State the right to control the said river, and has ex- ])ressly declared it to be a imblic highway, by a jmblic Act ; and that the bridges aforesaid erected over the said river have been so erected upon leave or licenses from the State. The State lias, therefore, the unquestionable right to control the use of the Ohio and prevent the erection or creation of any bridges or dams, or other works tiiat will obstruct the free use of the same as a public highway.” The change which had become so great by 1882 was destined to continue. Tn the Special Reports of the Census Office, Transpor- tation by Water, 1906,” p. 33, a comparative statement is given of the freight transportation for the years 1906 and 1889. The fig- ures are as follows: Missis'sippi River and its tributaries 1906 Mississippi River and its triliutaries 1889 All other inland waters 1906 All other inland waters 1889 FrT carried Per cent Census. (net tons) of total 27,856641 10.5 29,101,409 22.6 3,944,655 1.5 11,221,224 8.6 Plainly river commerce has been steadily declining. ‘‘Steam- boats make the rates and the railroads get the freights” was the catch-word of Mississippi Valley traffic in the 70 ’s, when the steam- boats were i^assing. If, now, pecuniary profit were the test of navigability, these fig- ures would demonstrate that the Mississippi River was not navi- gable, and that all other inland waters of the United States are not navigable. This is a typical case of reductio ad absurdum. The contention that river traffic must profitably compete with railways in order that the river be navigable is plainly absurd. It may be suitable for the River and Harbor Appropriation Committee of Congress to insist that before they will recommend the expenditure of public money upon a stream, they must see a ])ros{)(H‘t of siu'li i)roHial)lo (‘oinpotiiioii. (And jud^xnl (;ven by this standard, iMr. I’urton insists that the Dos Idaines ITiver is n'avi^>a- l)ie. (Absl,, ]). 1S7.) I^nt tlie figures (pioted fi'oni the eensns, of the obvious fact, patent to all observers, wliieh is so graph ieally stated by Mark Twain, deinonstrate that during tlie past genera- tion, inland water transportation in the United States has not maintained itself in competition with the railways. Is tliere, then, no navigable stream left in America! On the contrary, the defini- tion wliich leads to such result is not the definition of the law, nor the measure of public right. 'Streams which were navigable once, and recognized as such by law, remain navigable; and even the Sovereign State can not alienate or surrender the rights of the public therein. (See authorities cited under proposition ‘^The Public Eight is Non-alienable,’^ of this brief.) RECENT DEVELOPMENT THE FREIGHT LAUNCH AND MOTOR. BOAT. The most recent develoi)ment is in the opposite direction. The steamboats had grown larger and larger, and more and more bur- dened by inspection requirements, i)ilot and engineer’s licenses, and by the amount of fuel necessary to be carried for their 0 }) 8 ra- tion, until they passed the maximum point in size, at which they could be profitably operated. Then came the towing fleet, to which we have i*ef erred. Tlie next step was the freight launch and motor boat. This develop ment is descrilied in the evidence by the witnesses {^almer, Swee- ney and Fox. Mr. Palmej*, of tlie Racine Boat Manufacduring Com])any, states that the modern launch had been in use in the Mississippi Valley since about 1890, and the modern motor boat since about I90T ^‘The launches to wdiich 1 have referred were in use as freight boats. The construction of the launch generally for freight purposes would be a boat say about 25 feet long by (i to 8 feet beam, built heavy, and with a gasoline engine of from 5 horsepower to 10, 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 hy the de])th of the hull and (livdde })y 95. .A lioat 100 feet long’, 20 feet wide and 2 feet deep, by this forinnla, would carry 42 tons. It would carry that load in addition to its m-acliinery and gasoline by which it is opei’ated, and the crew. That boat would be a little out of proportion. Tlie liull should be at least 6 or 8 feet deep, and still draw 2 feet of water, and travel on 2 feet of water, so that you got to figure on its carrying more tonnage. ‘‘The tunnel boat has a dome or semi-cylinder, built up into the hull, in which the propeller operates. AVhen the boat is stationary, the propeller is half out of the water. As soon as the propeller is started up with the machinery, it lifts the water and fills the dome and then acts the same as if the screw were so many inches under water. For instance, if you had a 20-inch screw stationary, the propeller would only draw 10 inches of water, but as soon as the motion begins 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 Kiver Nile. We intro- duced it in this country prior to the World’s Fair. I am man- ufacturing boats of that type now. These freight launches and boats are in use all over the country on rivers and lakes, espe- cially on the smaller rivers of the country and on canals. ‘‘Eelative 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 the ratio, I should say, of pretty near 100 to 1. u* «= * burden of the machinery and fuel to be car- ried in the motor freight launch, I don’t think, takes up 20 per cent as much room as steam. There would be a net saving of 80 per cent, relatively, on the items of machinery and fuel to carry. With the coming in of the freight launch and motor ])oat, there has been a decided increase in the amount of navi- gation and comiinerce 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.” (Abst., pp. 316-319.) On this ‘‘Eecent Development of Navigation” John M. Sweeney testified : ‘•My business is mechanical marine engineering. I am in- terested in the Outing Boat Company of Chicago, who Iniild motor boats ; in the Howard Ship Building Company at Jetfer- sonville, Indiana, and in some allied properties with that con- cern, and some repair plants on the Ohio Eiver. I have been building river boats particularly since about 1876. ( .).> “''riio strictly ii{i})liitlia launch was used })c^inriin^' al)out 1880. The iuterual coiuhustiou motor came iii about s(;v(m years ago. The first exliibit in Cliicago was in 1900, })y a De- troit firm. From that time to tlie present time tlie internal combustion motor has multiplied very fast. Within that eight-year period the number of internal coml)ustion motor boats in use — on the best data that is perhaps availa])le, or ol)- tainable — reaches 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 inspec- tion and licensed officers ; boats below fifteen tons do not, un- less they are used for purposes of hire or carrying passengers for hire. ‘^The old-fashioned steamboats which were in use in 1880 required a licensed pilot and a licensed engineer, as well as in- spection of the steam boilers, where they came under the in- spection service. The test which brought them within the in- spection service was ^a boat propelled, in whole or in part, by steam, operated on navigable waters of the United States,’ Recently that language has been construed to mean that any boat propelled by motor of any kind, shall be construed as pro- pelled 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. i 4 Prior to the making of this ruling, a motor Imat did not need to have a licensed engineer, under the navigation law, because the law applied to those boats that Svere proj^elled in whole or in part by steam.’ The boats that were ])roi)elled 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 growing 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 steamboats in those streams. These burdens have not, up until this time, been applied to motor boats and gasoline craft. I think they will from this time on, perhaps. “Well, speaking of the last four or five years, which is the best pulse of what has been taking place on the Ohio River, I should say, roughly, without having statistics, but simply as a matter of observation, that there have been four or five, some small, gasoline or internal combustion boats built and imt in commission to one steam-driven craft, and the Ohio River to- day is developing an awful big business along its shores l)y the use of gasoline boats towing very light barges that can be left at one spot or another, and in that way tliey use very mueli smaller fuel than a steamboat could use. The savin^i^ 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 l)oats. have never Imilt any l)oats for the Chattahooclie that wei'e smaller than loO feet by about 26 or 28 feet wide. These boats would draw, without any load in tliem, about 20 or 22 inches. Not evenly, all over, l)ecause‘a boat of that type, if she is drawdng 22 inches at iier stern, she would probably draw 18 inclies forward. A boat of that kind, where you are carry- ing cotton down tlie Chattahooclie 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 speak- ing of a steamboat now — she would draw, without any load in her whatever, about 18 inches — from 12 to 18 inches, depend- ing upon how much passenger accommodation. If no passen- ger accommodation, 12 inches. It would be possible to con- struct that boat on a 12-inch draft, and a boat of that dimen- sion would carry, for each fool of displacement, 50 or 60 tons, 50 tons, anyway. ^^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 boat the other day which was 85 feet long and 15 feet wide, that was drawing light, about 10 inches at the deepest end of it, and her average displacement was probably 8 inches ; aver- age draft, I mean. That boat would carry, exclusive of her own weight, about 30 tons to the foot ; I mean 30 tons to the foot of displacement; to the foot of immersion; each foot of loading. As I say, that is only approximate, because I have used 60 pounds as the weight 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 displaceiaent for each foot of immersion, wliich in round numbers is 371 tons, call it 35 tons. That boat on two feet of water would carry 30 tons ; more than that, a little, I judge. “IVith the incoming of these internal combustion motors, commercial 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 know fhat the steam boat men on the Ohio River are kicking a wdiole lot about them getting into the short trade. The expense of operation, as compared with steam ves- sols is porliaps loss, ('oiisidoriiig* llio adapiahilily, and I doiiht vory iniK'li wliotlior tlio fiiol o()iisuin})ti()a itsolf is loss. I tliird< ilio I’aol (‘onsiiiniption is in favor still of tlio stoain ('raft. “ddio installation ('ost on a rtiotor boat, in sniall sizes, oan- not 1)0 ooinparod with the instalhition (M)st on a steam l>oat, hoeaiise a motor boat is available where the steam would not be, and I think the converse of tliat ])roi)osition is true, but on the very large sizes the steam installation is the only avail- able one. It is the middle field in which you can make com- })arison of the cost of installation. A motor boat could be in- stalled on sh.allow water, where it would not be x>ossi])le to install a steam vessel. There is a formula for computing tlie displacement necessary to a given load on a shallow draft stream. ‘‘Assuming that a cubic foot of water weighs 60 |30unds, as the value which is used in tins calculation which I made here a little bit ago, after the boat had furnislied its own buoyancy — provided for its own buoyancy, or its own displacement— each cubic foot of water that was dis^fiaced further by further immersion, would mean 60 pounds of carry- ing capacity. If the cross-section of the boat, or the cubic displacement of a boat for each inch or each foot is known in cubic feet and cubic inches, it is a little mathematical problem to work that out. If you multi]fiy the length by the breadth and then by the depth making cubic contents, and multixrly it by 60 pounds for each cubic foot, it gives you the weight of the water displaced by that much im- mersion. That causes that iniicli additional immersion; or to find the reverse proposition, the amount of the boat displaced would give you the weight of the boat itself, without the load. “If the boat had two water lines, one where it was empty, and one near where it was higher, where it was loaded, the length by tlie l)readth multiplied ])y 60 would give you the number of |)ounds or load that would be represented })y the additional foot of immersion. “A tnnnel-bnilt ])oat, is a term that is applied ])inmarily to a, boat designed by Thorneycr*oft in Kngland, for the purpose of applying a pi*o|)eiler wheel, so that it would not exteml lye- low the bottom of the boat. It was first done for some of the very shallow draft boats which Thorney(*roft and Yarrow, and other Englisli firms, built for African rivers, such as the Nile and Zambese. Some of these l)oats, which were called ‘Mos- quito’ boats were as light as 8 inches. “They would carry a great deal of freight. They are a very large, wide l)oat. In place of having a pro}>elier wheel extend below the bottom of the boat, it would set up. The stern of a boat lyuilt with a tunnel in it, so that the water would rise as the boat went along, the water being nnder compression, iiiidoi* the l)()ttoin of the l)()a't, would rise into the tunnel eorn- partnuMit and g'ive the wheel water to aet upon. It was ymt ihei'e so that the })oat eould |)ass over ])laees without injury to the wheel, wliere she ('ould ))e floaited. It lias ])een applied for use on shallow streanis. ‘‘Thei-e liave l)eeir two boats of tliat eliaraeter l)uilt for the Ohio River. One is owned by the government, towing barges, ddiey are Twin Sister l)oats. Tlie other boat is just completed, not ill eommis'sion yet. '' In ease of the tow l)oat, tliey carry no load exceiit their own fuel, but they are loaded to the capacity of the river, at certain times at least, with fuel so as to carry the maximum of the barges which they tow. "In connection with the Missouri liiver, I have just com- ])leted designs for a cou})le 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, carry- ing a displacement of practically 500 tons. The boats them- selves are 240 feet long and 44 feet wide, and the boat will carry on her maxinmm load draft, which would be 8 feet for- ward and 4 feet aft, 1,200 tons, in addition to the weight of the boat itself. ^ ^ * "The boat loaded should be deep at the head, and in the flat stern boat, particularly, the scheme is to (drawing diagram) that being the water line, this is the top of the boat. Now, assuming that the bottom, as is shown there, is ])arallel 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. # * * , * * # "I do not mean to say that all boats are constructed in that way, but that is the favorite construction today, 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, that when the boat is being propelled the stern of the boat does not settle. "The wheel is always immersed to its full depth approxi- mately, so it may have a little greater depth than that when the stern is loaded under, but the loading always intensifies that forward movement where the boat is.” (Trans, pp. 592-600.) (Abst. pp. 320-326.) On the same subject witness Fox testified, as follows: "I am engaged in the manufacture of paper. Wyoming is located in the County of Hamilton, about twelve miles nortb of tlic City of Cincinnati. The name of the business coiu'ci'ii is known as Fox Paper Oonipany. The mill is lo('atepropriated half a million dollars, something over half a million dollars, and the Legislature which has just adjourned has appropriated another half million dollars for the purpose of cleaning out these old canals, and rebuilding the locks, re- habilitating the commerce of the canals. ^LV number of bayous of Louisiana and in the delta country the invention of the motor boat has caused a revival of navi- gation. In respect to that particular development I refer you to a memoir by Judge R. S. Taylor of the Mississippi River Commission published within the last few months, I think. 4Vhen I was making the investigation for the City of Roch- t 741 esier in iho yoai* HK);"), I found that motor boats were used upon .the Ku*ie (''anal for delivery by the ^-roeers theni in the (hty of Roehester in delivering tlieir y)roduets along tlie canal for n distance of forty miles or more from Itocliester, in com- petition with two railways which ran on either ])ank of the canal. .1 don’t know of their actual use upon a stream like the Des Plaines River. The art is very young yet. I have seen some kinds of motor boats. I have not had any experi- ence in the operation of them personally. The tow-path 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 Ottawa.” (Abst., p. 925; Trans., pp. 2872-3-5.) The paper by Judge Robert S. Taylor, of the Mississippi River Commission, ‘‘Present Aspects of the Mississippi River Problem,” to which Mr. Cooley referred (Abst., p. 1186), makes the follow- ing references to the motor freight propeller: “The Lakes-to-the-Gulf waterway will be constructed. And when done it will exliibit the most fortunate combination of economies ever brought together on so great a scale. At one end the Cliicago Drainage Canal, worth all it cost for the sani- tation of the city; below that the Illinois River section, worth a large part of its cost for the water-power developed; and at the lower section the protected banks of the Mississi])pi, worth all the cost of the work in the perpetual securit}" of tlie alluvial valley against overflow. “Cue further thought, not for its utility, but its inspiration. The big dredge has a little brother lately come into the world, but destined to work a mighty revolution in water way trans- portation. It is the gasoline motor freight propeller, scarcely larger than an automobile, with its little, flat, shallow scow, the cheapest craft ever floated, a mere box, satisfied with a foot and a half of water, jmslied ahead, or towed behind, and carry- ing a few tons of merchandise. It is a true acpiatic truck, scarcely more costly than a good team and land truck, and requiring only one man to own and run it. * * * “This little craft has been coming into use lately on the bayous and small streams of the alluvial valley in increasing numbers. That we shall have in the future abundant supplies of fluid fuels and simple engines for using them is not to be doubted. We have been hearing for twenty-five years of the . 15,000 miles of navigable channels of the Mississippi and its tributaries. We have taken it as an innocent exaggeration. But these little motor boats, between the Alleghenies and Rockies, and Canada and Gulf, will find all that, and more.” (pp. 14-15.) “The Census Report of Transportation by Water, 1906,” pp. 28 and 29, eontains tlie following instructive items: Table 8-1-. — CriARACTEB of Power and Propulsion, by Division: 1906. Screw Steam Gasoline Division Number of vessels Total horse- power Number of vessels Gross tonnage Horse- power Number of vessels Gross tonnage Horse- power Total 9,927 3,451,745 5,160 3,424,972 2,717,649 2,785 46,159 67,152 Mississippi River and its tributaries 1,435 236,969 130 6,652 18,326 226 2,182 4,098 Stern Wheel Division Steam Gasoline Number of vessels Gros's tonnage Horse- power Number of vessels Gros's tonnage Horse- power Total Mississipp River and its tributaries 1,055 678 193,208 104,476 247,020 169,210 351 312 4,592 3,929 5,747 4,911 Side Wheel Division Steam Gasoline Number of vessels o be m -rt O 2 o 1 Horse- j power Number of vessels Gross tonnage Horse- power Total 543 389,327 413,152 19 247 305 ]\lississippi River and its tributaries 72 28,221 39,731 13 151 158 ' ' There is a great disproportion between the number of ves- sels propelled by steam and by gasoline engines when com- pared with their tonn'age and horse power. Vessels reporting the use of steam power for propulsion numbered 6,765, or 68.1 per cent of the total, but their tonnage was 4,008,431,^ or 98.7 per cent of the total tonnage for all classes, and their horse power 3,378,453, or 97.9 per cent of the total. Gasoline boats, on the other hand, were reported to the number of 3,155, or 31.8 per cent of the total number for all classes of vessels, but their tonnage was only 50,998, or 1.3 per cent of the total, and their horse power 73,204, or 2.1 per cent of the total. While the use of gasoline is largely confined to small craft, there are some fairly large vessels equipped with engines of tliis class 74 ?> haviiii*- n (*ai)a,('ity ol* sovoral liiiridi'od horse powco*. (;\- ])enso ol* operating' gasoline engine's of large j)ower, tog(‘t}i(n* with tlie element of danger, liave undoiil)tedly Ixien strong faetors in (*onfining their use to sinall vessels. The faed shonid not he overlooked that the Census inquiry was confined to ves- sels of not less tlian 5 net tons, so that the liiindreds of boats of smaller tonnage using the gasoline engine do not appear in this report.” The early use of the Des Plaines was by batteanx and Mackinac boats, and large oar-propelled boats, which sometimes carried ten men with their packs of furs, which were caleld ‘^canoes.” This latest development of navigation, the motor freight pro- peller, is this same type of boat with a gasoline motor set in the bottom. In the development of the art, boats have been invented and brought into successive use within the last decade, which are specially adapted to navigation upon these shallow interior streams. We can imagine a court, which had seen only large boats and knew only of that period in the development of water craft, in which the boats were growing ever larger and larger, supposing that only such waters as would accommodate the largest craft, could be considered navigable, and all others rejected as private pro])erty without any public rights attached. But a court which would ado])t such an idea and make it a rule of law binding for all time, would, in the language of Justice M’Lean in the Wheeling Bridge case, ‘‘reject the improvements recommended by ingenuity and exi)erience and close its eyes to one great source of our prosperity.” 7U X. THE WAI'EHS OF LAKE MK’llIGAN ADDED TO THE DES PLAINES RIVER BY THE SANITARY DISTRICT CHANNEL LAWFULLY AND PERMANENTLY IMl’ROVED THE NAVIGATION OF THE RIVER AND ITS NAVI- GABILITY IS TO BE JUDGED AS SO LAWFULLA" AND PERMANENTLY IMPROVED. Schulte V. Warren, 218 111., 108, 120. Mendota Club v. Anderson, 101 Wis., 479; S. C., 78; N. W., 185. Smith V. Youman, 96 Wis., 103. Village of Peivankee v. Savoy, 103 Wis., 271 ; 50 L. R. A., 836. The statutes of Illinois, authorizing the Illinois and Michigan (linal, and the Deep Cut, and authorizing the construction of the Sanitary District Channel, have permanently altered the face of nature, and brought Chicago into the Mississippi water shed. , Missouri v. Illinois, 200 IT. S., 496, 526 IVhen such a permanent alteration has been made, the stream is tliereafter to he judged by its altered capacity and improved condi- tion. Ibid. The Sanitary District Channel was constructed for the primary purpose of providing drainage, by the addition of a vast amount of the water of Lake Michigan to the Des Plaines River, and the inci- dental purpose of improving the navigation of the Des Plaines and Illinois rivers by means of the water so added. The Act, entitled: ^L\.n Act to create sanitary districts, and to remove obstructions in the Des Plaines and Illinois Rivers,” a^o- proved May 29, 1889 (L. 1889, p. 125, 2. S. & C., 2 ed., ch., 42, pp. 1-28), was passed on the same day as the following legislative reso- lution, entitled: RIVER IMPROVEMENT, DES PLAINES AND ILLINOIS. ‘AVhereas, The Illinois River, from LaSalle to Grafton, is the remnant of an ancient stream bed bordered by wide and low bottom land, much cut up by lake, bayou, and marsh ; an alluvial stream of small, low water volume and sluggish cur- 745 rcMii, willi a (ieclivily ol* only LMi I'ccit in 225 niikis, a (l(M:livily so small as to a largo vohimo of water to maintain an elVoetive (*lianiiel ; a stream wliieli in. its natural condition is able to maintain but a small deptli tbrougli tlie deposits with wbicli the tributaries constantly tend to choke the channel ; a tendency ever increasing with the inhabitation of the water- slied and the cultivation and reclamation of lands. “Whereas^ The erection of dams with a view to the creation of pools of slack water for the purpose of navigation, dimin- ishes the scouring force of the current at medium and low stages and promotes channel decay, causes deposits in the mouths of tributaries and the more ready overflow of the bot- tom lands ; and generally the tendency is to restore the natural channel of equilibrium at a higher level with great ultimate injury to the valley from overflow and unhealthfulness, a tendency already exhibited in a notable degree from the condi- tions created by the dams erected by the State at Henry and Copperas Creek in 1872 and 1877 respectively. ‘‘Whereas, The completion by the United States of the dams at LaGrange and Camps ville will raise the general level of the river below Copperas Creek by several feet and promote all those injurious tendencies to channel decay, with overflow and unhealthfulness already exhibited through the agency of the state works at Henry and Copperas Creek. “Whereas, The official report of the United States for 1868 show^ed that it was j)racti cable to obtain by dredging and a minimum low water volume at Peru of 58,000 cubic feet per minute, a channel for navigation of a width of 160 feet and a depth exceeding four feet, and the official report for 1880 showed that it was practicable to obtain a channel for naviga- tion 200 feet wide and six feet deep by dredging, and a mini- mum flow of 94,000 cubic feet per minute in the river below Copperas Creek, und that the (‘ost was not materially differ- ent from the cost of the improvement by locks and dams. “Whereas, The ])resent addition to tlie low^ water volume of the Illinois River through the summit level of the Illinois and Michigan Canal from Lake Michigan more than doubles the volume of water used in the estimate of 1868 for the channel below Peru and adds 50 per cent to the volume used in the estimate of 1880 for the channel below Copperas Creek and said contribution from Lake Michigan will be increased in the immediate future, thus enabling the depth now ])rojected for navigation below Peru to be obtained by channel improvement at moderate cost and with decided advantage to material inter- ests and to healthfulness along the valley. “Whereas, It is contemplated to increase the volume from Lake Michigan to 300,000 cubic feet per minute within a few years and ultimately to add 600,000 cubic feet or more, thus enabling a large depth for navigation to he obtained by an iin])rovcd eliannel, and tliat said channel will be self-sustain- ing and self-improving and will discharge flood waters more readily, flms benefitting the bordering lands and increasing the health fill ness of the valley. '^Whereas, Works now projected by the City of Chicago will form part of a water way of large proportions from Lake Michigan via the l)es Plaines and Illinois Rivers to the Mis- sissippi River, of which the dams and locks upon the alluvial section of the Illinois River can form no part and which, if allow^ed to remain, will increase the overflow and be detri- mental to the welfare of the Illinois valley and the interests of the State. Therefore, be it ''Resolved, By the Senate, the House of Representatives concurring herein : “1. That it is the policy of the State of Illinois to procure the construction of a ivater way of the greatest practicable depth and usefulness for navigation from Lake Michigan via the Des Plaines and Illinois Rivers, to the Mississippi river, and to encourage the construction of feeders thereto of like proportions and usefulness. "2. That the United States is hereby requested to stop work upon the locks and dams at LaGrange and Campsville and to apply all funds available and future appropriations to the improvement of the channel from LaSalle to the mouth with a view to such a depth as will be of present utility and in such manner as to develop progressively all the depth prac- ticable by the aid of a large water supply from Lake Michigan at Chicago. ‘‘3. That the United States is requested to aid in the con- struction of a channel not less than 160' feet wide and 22 feet deep with such a grade as to give a velocity of 3 miles per hour from Lake Michigan at Chicago to Lake Joliet, a pool of the Des Plaines River, immediately below Joliet, and to project a eliannel of similar capacity and not less than 14 feet deep from Lake Joliet to LaSalle, all to be designed in such manner as to permit future development to a greater capacity. ‘‘Adopted by the House May 27, 1889. •‘Concurred in by the Senate May 28, 1889.” (Laws of 1889, pp. 375-376.) Section 24 of the Drainage Act shows the same purpose, viz. (2 S. & C., 2 ed., Ch. 42.) : ‘‘Section 24. When such channel shall be completed, and the ivater turned therein, to the amount of 300,000 cubic feet of water ])er minute, the same is hereby declared a navigable stream.” 747 This moans that tho iraicy llofvinr/ in tliai clumn/d is a navi^ahUi stream. 'riie iratcr so turned in was navigable in fact, and it does not lose its navigability upon passing out of the artificial channel into the channel of the Des Plaines River. That water is just as navigable half a mile southwest of Joliet as it is half a mile northeast of Joliet. The Drainage Act provided ample remedy for any damage to persons or property by the adding of this navigable body of water to the Des Plaines River, viz. : ‘‘Section 16. Wlienever the board of trustees of any sani- tary district shall pass an ordinance for the making of any improvement which such district is authorized to make, the making of which will require that private property should be taken or damaged, such district may cause compensation there- for to be ascertained, and condemn and acquire possession thereof in the same manner, as nearly as may be, as is pro- vided in an act entitled ‘An Act to provide for the exercise of the right of eminent domain,’ approved April 10, 1872; pro- vided, however, that proceedings to ascertain the compensation to be paid for taking or damaging private pi'operty shall, in all cases, be instituted in the county where the property sought to be taken or damaged is situated; and, provided, that all damages to property, whether determined by agreement or by final judgment of court, shall be paid out of the annual district tax prior to the payinent of any other debt or obligation. “'Section 17. When it shall be necessary in ma'king any ini- provements which any district is authorized by this act to make, to enter upon any public property or })roperty held for public use, such district shall have the power so to do, and may acquire the necessary right of way over such property held for public use in the same manner as is above provided for acquiring private property, and may enter upon, use, widen, deepen and improve any navigable or other wafers, waierways, canal or lake. Provided, the public use thereof shall not be unnecessarily interrupted or interfered with, and that the same shall *‘be restored to its former usefulness as soon as practicable. * * * “ Section 18. In making any special assessment for any im- provement which recjuires the taking or damaging of ])ro'|)- erty, the cost of acquiring the right to damage or take such })ro]')erty ma}" be estimated and included in the assessment as a part of the cost of making such improvement. “Section 19. Every sanitary district shall be liable for all damages to real estate within or without such district whicti 748 shall l)e ()vcM-fl()\vo(l or otherwise. damaged by reason of the eonstruetion, enlargement or use of any channel, ditch, drain, outlet or other improvement under the provisions of this act; and actions to recover sucli damages may be brought in the ('ounty where such real estate is situate, or in the county where such sanitary district is located, at the option of the party claiming to be injured. And in case judgment is rendered against such district for damage the plaintiff shall also recover his reasonable attorney’s fees, to be taxed as costs of suit; provided, however, it shall appear on the trial that the plain- tiff notified the trustees of such district in writing, at least 60 days before such suit was commenced by leaving a copy of such notice with some one of the trustees of such district stating that he claims damages to the amount of dollars, by reason of (here insert the cause of damage) and in- tends to sue for the same; and provided, further, that the amount recovered shall be larger than the amount offered by said trustees (if anything) as a compromise for damages sus- tained. ’ ’ (111. L. of 1889, pp. 132-133.) These remedies provided by the Sanitary District Act embrace both condemnation of property directly taken, and the right of action by the land owner for property damaged or interfered with in its use, though not taken. Sanitary District of Chicago v. Ray, 85 111. App., 115, 119. Sanitary District of Chicago v. Ray, second case, 199 111., 63. Sanitary District of, Chicago v. Martin, 227 Ilk, 260. Beidler v. Sanitary District of Chicago, 211 111., 628. The remedy by condemnation proceedings applies to property to be taken. The remedy of action by the property owner applies to property damaged, but not taken. As to the latter (the remedy by action of the land owner) it is not unlaivful for the Sanitary District to proceed to construct its improvement before the ascertainment or 2 ^aym.eiit of the amount of damages. See authorities last cited, also : Peoria, etc., R. R. Co. v. Schartz, 84 111., 135. Parker v. Catholic Bishop of Chicago, 146 111., 158; affirm- ing, 41 111. App., 74. Stetson V. Chicago, 75 111., 74. Patterson v. Chicago, etc., R. Co., 75 111., 588. 749 Tills principle, that the ascertainment of (lainages need not pre- cede the construction of the. work, applies particularly to the dam- ages l)y the flowage of land by the construction of public works. Nevins v. Peoria^ 41 Ilk, 502. Wcibasli V. Erie Canal Co., 16 Ind., 441. Proprietors of Locks and Canals v. Nashua R. Co., 10 Cush., 385. Estahrooks v. Peterborough R. Co., 12 Cush., 224. Trenton Water Poiver Co. v. Raff, 7 Vroom., 335. Hooker v. New Haven Co., 14 Conn., 146; s. c. explained 15 Conn., 312. Grand Rapids Booming Co. v. Jarvis, 30 Mich., 321. Mills V. U. S., 46 F. E., 746. Pumpley v. Green Bay Co., 13 Wall., 166. Matter of Commissioners of State Reservation, 37 Hun., 537, 542. The improvement of navigation is a public use. In re Burns, 155 N. Y., 23. Hazen v. Essex County, 12 Cush., 475 Spooner v. McConwell, 1 McL., 337. Homochitto Rivers Com. v. Withers, 29 Miss!, 21. Barney v. Keokuk, 94 U. S., 324. Avery v. Fox, 2 Fed. Cas., No. 674 Bedford V. U. S., 36 U. S. Ct. of Cl., 474. The policy of the 'State does not authorize the taking or damag- ing of private property for private uses ; much less of public prop- erty for private uses. Mather v. Ottawa, 114 111., 659. Gaylord v. Sanitary District of Chicago, 304 111., 576. This latter case holds : That the -Act of Mills and Millers in so far as it purports to authorize the condemnation of private property for the pur- poses of public mills and machinery other than public grist mills, is void, as permitting the taking of property for private uses ; and holds, p. 581 : That these acts were ‘^manifestly passed at a time when water power was practically the only means of running such 750 mills, and wliieli, 'in tlio tlion existing condition of society, were a ])ii))lic necessity.” For siK'li iiennanent damages ])y lawful works, the right of recov- ery is complete when the ])ermanent change in the face of nature is made. The ownei* who owns the property at that time has the right of recovery, once for all, of all damages, past, present and future. Chicago & Alton R. Co. v. Maher, 91 111., 312. Chicago 8z Eastern 111. R. Co. v. Loeh, 118 111., 203. III. Central v. Crahill, 50 111., 241. C. R. I. & P. R. Co. V. Carey, 90 111., 514 Troy V. Cheshire R. R., 12 N. H., 83. Van Schoyck v. Del., etc.. Canal Co., 20 N. J. L., 249. Heard v. Middlesex Canal Co., 5 Mete., 81. The drainage water was turned into the Des Plaines Eiver Jan. 17, 1900. The party who owned the land then had the right of action. Upon the sale of that property, he sold it burdened with the altered condition, produced by the addition of the drainage water — which burden included the burden of increased navigability. The right of action for the damages consequent upon the im- provement of navigation did not pass to the grantee. It is a per- sonal right which is not transferable. Chicago & Alton R. R. v. Maher, 91 111., 312. Chicago & Eastern 111, Ry. Co. v. Loeh, 118 111., 203. Galt V. Chicago N. IF. Ry. Co., 157 111., 125, 134. City of Centralia v. IF right, 156 111., 561. Pinkneyville v. Hutchings, 63 111. App., 137. It is admitted by the defendant that it acquired title to the prop- erty on each side of the river in Section 25, Township 34, N. Eange 8, and in Section 36, Township 34, Eange 8, to the same extent that it now owns, by deed from Harold T. Griswold on November 30, 1906, being the j:>roperty on each side of the river, at the point where the dam was located. And that S'aid Griswold acquired title to said property on each side of the river, as Trustee for Mr. Charles A. Afimroe and Mr. 751 Frank (I. Logan; and tliai said (L'isvvold first acquired an inl(;r(ist tluM-ein by ('onii’a(*t in tlio Spring of tlio yoai- 11)04, vvliicli intorost aftcM’wards ripened into fitle, and wliicli title he eonveyed to the Fcononiy Liglit &: Power Ooinpany, Novein])er 50, 1900. (Ahst., pp. l()97-8.) The Drainage water had been running in the Des Plaines Tiiver over this spot from Jan. 17, 1900, to Nov. 30, 1900^ — six years, ten months and a half — when the defendant acquired its title. It took title burdened with the changed condition and improved naviga- bility thereby produced. Any right which the grantor, preceding Griswold, had was sub- ject to the public right, which must he left free and unobstructed. Even a work which might be lawful when erected, because not interfering with the public right of navigation in its state of de- velopment then existing, must give way whenever by improvement in the navigability it becomes an obstruction to the paramount right of navigation. An owner who erects a structure in the soil under the navi- gable water, does it at his peril, and if it becomes an obstruc- tion to the paramount right of navigation, he may be com- pelled to remove it. ^ ’ West Chicago St. R. R. Co. v. The People, 214 111., 9, 20. Gibson v. United States, 166 IT. S., 269. Holyoke Water Power Co., v. Conn. River Co., 52 Conn., 570. The change in the depth and volume of water in the Des Plaines by the addition of the drainage water was a lawful change, having the incidental object of improving the navigation of the river. It was made by an expenditure of upwards of $50,000,000 of pub- lic money raised by taxation, and was made in pursuance of the Drainage Act and the Navigation Resolution of 'May 28, 1889. An improvement of navigation was one of the purposes for which it was made. Defendant claims that the river was non-uavigable to start with ; that there was no incidental purpose of improving navigation in this expenditure of over $50,000,000 of public money; and that, therefore, this water, when added to the Des Plaines River was abandoned water, which partook of the char- aeter oT tlie non-navi gable, original stream; and therefore, under the doctrine of Druley v. Adam, 102 111., 177, it became part of the miearned increment of the defendant by virtue of its lower rip- arian proprietors}) ip. The State insists upon the contrary of this. The State insists that fbe purpose of improving navigation is set forth in the title and body of the Drainage Act, and in the concur- rent Navigation Resolution, passed April 28, 1889. In Druley v. Adam, the Canal Commissioners were taking lower down the water which had been put into the river higher up. The waters had been put in for the purpose of improving navigation, and not for the purpose of water power; and the taking of them out was not for the purpose of navigation, and was for the purpose of water power. In the case at bar, the waters were put in for the purpose of navi- gation, and have never been taken out, and there was no intention on the part of the State either of taking them out, or of letting any one else take them out. In Druly v. Adam, this court said : ‘‘The deepening of the summit level, and the cutting of the tunnel, and doing of the other work enabling appellant to with- draw water from the canal to propel his machinery, wmre not concurrent acts, nor parts of a single improvement. The acts mere disconnected in point of time and disconnected in purpose. Appellant’s water power was obtained b}^ him from the Board of Canal Commissioners long subsequent to the deepening of the Summit level, and, for aught that is disclosed in this record, it teas not even thought of ivhile that ivorlc ivas in progress, nor until some time after its completion. ******* ‘ ‘ The Act of April 16, 1865, under which the City of Chicago deepened the Summit level, discloses no such purpose. It shoivs that, so far as the City of Chicago teas concerned, the sole purpose was to purify or cleanse the Chicago River. It is true, it is therein shoivn that it was desirable to cut down the Summit level, so as to draw a large supply of water from Lake Michigan; but this was not for motive power, but is expressly said to be ^ for navigation.^ ” The deep cut was made to purify the Chicago River, “and for navigation,” therefore the plan thought of long afterwards by the Canal Commissioners of diverting a lot of the water so added and seHini>- it out tor private piirpovse.s irds held to he not u'itJiin the purp()S(> of the Act, authorizing that addition to the river. '^riie idea of water-power, to which it was subsequently sought to 1)0 devoted, was not even thought of until some time after its com • })letion. lint the drainage water wms turned in for the very ])urpose of iuipi'oving navigation, and the purpose of navigation was writ large upon the face of the Act, authorizing the expenditure of pub- lic treasure to accomplish this beneficent result. The imi)rovement of navigation was not something ‘^discon- nected in point of time and disconnected in purpose,” from the original Act. It was vitally connected from the beginning as an incidental and lawful purpose of the Drainage Act. People V. Nelson, 133 111., 565. The ])u])lic may lawfully unite the improvement of navigation with other purposes, and establish a imblic work combining both. Kaukanna Co. v. Green Bay, etc.. Canal Co., 142 IT. S., 254. Green Bay Canal Co. v. Patten Paper Co., 172 IT. S., 58. Stockton V. Pou'ell, 29 Fla., I; 15 L. R. A., 42. XL THE ORDINANCE OF 1787 DEDICATED AND PRESERVED THIS STREAM AS A HIGHWAY. THE NAVIGATION CLAUSE OF THE ORDINANCE OF 1787 AND THE! RE- ENACTMENT AND CONFIRMATION THEREOF. These enactments are as follows: 1787 Ordinance of. “Section 14. It is hereliy ordained and declared, by the authority aforesaid, that the following articles shall be consid- ered as articles of comjmct, between the original States and the people and States in the said territory, and forever remain unalterable, unless by common consent, to wit: * * “Art. IV. The navigable waters leading into the Mississi})pi and St. Lawrence, and the carrying jilaces 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 otlier States that may be admitted into tlie ('onfederaey wiithoiit tax, iropost, or duty tlierefor.” 1 1. S. \l. S., 2 ed., 1878, p. 13. 1 Starr & (birtis, 2 ed., p. 42. A))[)arently the orig-inal of tliis elaiise of the ordinance is found ill Journals of (Juigress, Vol. lY., p. f)37, proceedings of May 12, 178(), reading as follows: ''On motion of Mr. Grayson, seconded by Mr. King, ^ liesolved, That the navigable waters leading into the Mis- sissi|)pi and St. Lawrence, and the carrying places between the same be, and are hereby declared to be common highways, and be forever free, as well to the inhabitants of the isaid terri- tory, as to the citizens of the United States, and those of any otlier States, that may be admitted into the Confederation, without any (fax, impost, or duty therefor.” And see AYinsor’s "y\Mstward Movements,” p. 256. 1789 Aiigusf 7. Act of Congress entitled “An Act to provide for the Government of the Territory Northwest of the Eiver Ohio. 1. U. S. Statutes at Large, p. 50. ‘Whereas, In order that the ordinance of the United States in Congress assembled, for the government of the territory northivest of the River Ohio may contmue to have fidl effect, it is requisite that certain provisions should be made, so as to adapt the same to the present Constitution of the United States. "Section 1. Be it enacted by the Senate and House of Rep resentatives of the United States of America in Congress as- sembled, That in all cases in which by the said ordinance, any information is to be given, or communication made by the gov- ernor of the said territoin^ to the United States in Congress assembled, or to any of their officers, it shall be the duty of the said governor to give such information and to make such com- munication to the President of the United States, and the President shall nominate, and by and with the advice and con- sent of the Senate, shall appoint all officers which by the said ordinance were to have been appointed by the United States in Congress assembled, and all officers so appointed shall be commissioned by him; and in all cases where the United States in Congress assembled, might, by the said ordinance, revoke any commission or remove from any office, the President is hereby declared to have the same powers of revocation and re- moval. "Section 2. And be it further enacted, That in a case of the death, removal, resignation, or necessary absence of the gov- (M-nor of tlio said territoi-y, the secretary tlier(H)r shall he;, and he is hereby autliorized and required to execute all tlie powers, and iierforni all the duties of the governor, during the vacanc'y occasioned by the removal, resignation or necessary a})sence of tlie said governor. ‘‘Apiproved, August 7, 1789.” 1795 December 7. “Treaty of Greenville, duly confirmed by tlie Senate, ceded to the people of the United States the right of free passage by land and water, “From the mouth of the Chicago to the comniencement of the pjortage l)etween that river and the Illi- nois, and down the Illinois River to the Mississippi.” 1 Am. St. Papers, Vol. IV. Chap. 2, Indian Affairs, Vol. I. 1796 Act of Congress, May 18, entitled, “An Act providing for the sale of the lands of the Unitec] States in the territory northwest of the River Ohio and above the mouth of the Kentucky River. “'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. ’ ’ 1 U. S. Statutes at Large, Ch. 29, p. 468. 1804 March 26. Act of Congress entitled “An Act making provision for the dis})osal of the public* lands in the Indiana Territory and for other purposes. “Section 6. All the navigable rivers, creeks and waters within the Indiana Territory shall be deemed to be and remain public highways.” 1 IT. S. Statutes at Large, Ch. 55, p. 279. 1807 August 7 and 8, Robert Pulton made the first successful steam-boat voyage. 1809 February 3. Act of Congress entitled “ An Act for dividing the Indiana Territory into two separ- ate governments. 2 IT. S. Statutes at Large, 514. “Section 2. And he it further enacted, that there shall be establislied! within the said territoiy a govermnent in all respects similar to that ])rovided by the ordinance of Congress, passed on the 13th day of July, 1787, for the govei nment of the territory of the United States, northwest of the T*iver Ohio ; and by an act passed on the 7th day of August, 1789, entitled L\n Act to provide for the Government of the Territory northwest of the river Ohio;’ and the inhabitants thereof shall he entitled to and enjoy all and sinyidar the rights, privileges and ad- vantages, granted and secured to the people of the territory of the United States, northivest of the river Ohio, hy the said ordinance.’^ 1 Sitarr & Curtis, 2 Ed. p. 49. 181() August 24. The Pottawattoniie Treaty of Black Patridge ceded to the IJ. S. a tract of land 10 miles wide on each side of fhe Des Plaines. 7 U. S. Btaf. at L., pp. 146-7. (This is the first official use of the name Des Plaines.) 1816 IT. S. Survey of the river made by Major Long. (Ex. Doc. Xo. 17, IGth Cong., Isf Session). 1818 April 18. Acl of Congress entitled ‘'An Act to enable the people of Illinois to form a constitu- tion and State government, and for the admission of such State into the Union on an equM footing with the original States. 3 U. S. 'Statutes at Large, 428. “Section 4. And be it further enacted * * * * Pro- vided, that the same, whenever formed, shall be republican, and not repugnant to the ordinance of the 13th of July, 1787, be- tween the original States and the people and States of the territory northwest of the Kiver Ohio.” 1 S. & C., 2 Ed. 51. 1818 August 26. Constitution of Illinois, adopted at Kaskaskia, L. 1819, App. p. 1. “The people of the Illinois Territoiy, having the right of admission into the general government as a member of the LTnion, consistent ivith the constitution of the United States, the ordinance of Congress of, 1787, and the latv of Congress ap- proved 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, ]n’omote the welfare, and secure the blessings of liberty to themselves and their posterity, do, by their representatives in convention, ordain and establish the following constitutmn or form of gov- (M-niuoiii, and do inutiially agToe willi (‘a(!h other to 1‘oi’ni tli<*in- selves into a free and independent State, by the name of the State of Illinois.^’ 1 S. & C., 2 Ed. 55. 1818 l)eeeni])er o. Eesolution of Congresis declaring' the admis- sion of the State of Illinois into the Union.: Reciting as fol- lows : “Which 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 territory northivest of the river Ohio, passed on the thirteenth day of July, one thousand seven hundred and eighty-seven/’ 3 U. S. Stat. at large, p. 536. 1821 IT. S. Land Survey made by Surveyor General Walls meand- ered the Des Plaines river, and described in the field notes the Chicago portage as the ‘Siead of navigation.” 1838 Dec. 4. Message of Governor Duncan to Illinois Legislature quotes this provision of the Ordinance of 1787, and says (after referring to the wet and overflowed river bottoms of the States, especially itlie Mississippi, Illinois and Wabash) ‘‘The rapidly increasing commerce on these rivers requires an immediate improvement of their channels, and as the United States are bound to keep them open, by an agreement 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 navigable waters leading into tlie Missis- sippi, etc.” (quoting same), “and as those two rivers, the Wabash and Illinois are recognized to be the waters alluded to and as the United States lias ])rovided 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 immediately cause every obstruction to be removed from their channels, — I would, therefore, recom- mend that the subject be laid before Congress at its present session.” (111. Senate Journal 1838-9, p. 12). THE ORDINANCE OF 1787, AND THE LEGISLATION PURSUANT THERETO, PRESERVED THE NAVIGABLE CHARACTER OF THE STREAM AS IT EX- ISTED IN 1787. The provision of the Ordinance of 1787 is as follows: “xirticle IV. * * * «= navigable waters leading into the Mississippi and Saint Lawrence, and the (Tirrying 758 |)Ia('(*.s l)(‘twc‘eii tlio same, sliall he eommori higliways, and for- ever f]‘ee, as well to tlie inliabitants of tlie said territory as to the citizens of the Ilniited States, and those of any other States that may be admitted into the (V)nfederacy, without any tax, impost, or duty tlierefor. ” 1 Starr & (hirtis, 2 ed. 45 : U. S. Rev. Stat., 2 ed. 1878, p. 15. The evidence is clear tliat in 1787 and for over a century l)efore, and thenceforward to tlie admission of Illinois into the Union in 1818, the stream was navigated by the forms of navigation then in use. Schoolcraft says upon this : “The principal points at which the waters of the Mississippi river communicate, by interlocking rivers and ])ortages, with the lakes, are the following, proceeding from south to north, namely, 1. By the Illinois and Chicago Creek (with Lake Michigan.) 2. By the Wisconsin and Fox Rivers (with Green Bay.) 8. By the Chippewa and Mushkee (or Mauvais) Rivers (with Lake Superior.) 4. By the St. Croix and Burntwood (or Brule) Ravers (do). - 5. By the Savanne and St. Louis Rivers (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 irithoiit any practical improvement ivliicli as yet, facilitates the communication, about a hundred and sixty years. They are so familiar in pur geography, have been so much explored, and are so well appreciated, as prominent points for effecting canal and railroad routes, that it is only to be desired that early and efficient measures should be taken for opening them. ’ ’ (Schoolcraft, “Expedition to the Sources of the Missis sippi,’’ Introductory to Exploration of the St. Croix and Burntwood Rivers, p. 121, 1834). The entire range of historical evidence concerning navigation assembled elsewhere, places it beyond debate that the stream was navigated at that period. In Smith’s History of Wisconsin the history of the connection of these streams is summed up as follows: “ L\t this time (1718) the three great avenues from the St. Lawrence to the Mississippi were, one by the way of the r 759 Fox and \Vis(‘oiisin rivers, one bt) ivdij of (Jlneofjo, and one by tlie way (d* the Miami of the Lakes, wlien, after ('rossin^’ tli(‘ portage of three leagues over the snnnnit level a shallow stream led into the AVabash and Ohio.’ Ft is therefore a[)i)ar- ent tliat it was one of the liigliways referred to in the Oi'di- nanee of 1787, and, indeed, among the most favored, on acc'onnt of file short portage between the two rivers.” The Moniello, 20 AA^all., 440; Opinion by Air. Justice Davis. I THE ORDINANCE AND THE LEGISLATION IN CONFIRMATION THEREOF MUST BE CONSTRUED ACCORDING TO ITS HISTORY AND INTERPRETED AC- CORDING TO THE MEANINGS THEN GIVEN ITS TERMS. Referring to the foregoing summary of legislation, we submit that the Ordinance and the legislation in confirmation thereof must be construed by its history and interpreted according to the meanings then given the terms. A'Vhen construed according to its history and that of the times, it is clear that at that time (1787) and for over 20 years thereafter river navigation was carried on by batteaiix, Durham boats, Alack- inaw boats and ‘‘canoes,” which latter frequently carried many men and much goods. The facts that in 1807 steamlioats were in- vented and in 1825 the first steamlioat ascended the Illinois changed the art of navigation, but did not change the law or abrogate the ordinance or oliliterate or vacate the highway which had existed all those years. II. THE ORDINANCE HAS A TRIPLE ASPECT. (1) It is a dedication of the stream as a highway by the United States of America which was the proprietor of the stream. (2) It is a conipact among the States respecting the use of that highway, and solemnly agreeing that the highway shall for- ever be preserved. (3) It is a piece of legislation enacting a law that this highway shall forever be preserved. The attempts to get rid of (2) the compaci, and (5) the legisla- tion, leave in full force and effect (1) the dedication of the higJui'ag. 7 (;() nr. TJfK FAlLUJ{i: OF THE (CONTENTIONS CONTRA TO REACH THE SUBJECT. Tile subject wliieli we liave placed at the head of this portion of our brief, and which is of controlling importance is: The navigation clause of the Ordinance of 1787, and the re-enactment and confirmation thereof. 1. Even if all that has been suggested contra as to the Ordi- nance of 1787 were entirely correct, there still remains the Act of August 7, 1789, by the new Federal Government under the Con- stitution whose preamble declares that it is passed ‘On order that the Ordinance may continue to have full effect;’’ the treaty of 1795; and the Acts of 1796, and 1804 expressly establishing and preserving the ivater highivay. 2. If it were established that the Ordinance was not now laiu, and not binding on Illinois, and that the State has and ahvays had the right and poiver to repudiate it, its effect as a dedication of a highway by the proprietor would remain: and the State of Illi- nois never has repudiated the Ordinance and never has vacated the dedication. IV. Those cases in the United States Supreme Court, which say the Ordinance is not binding, began in the period when the anti-slavery conflict was imminent, and were the outgrowth of that conflict. The Ordinance contained an anti-slavery clause and this clause was liable to be drawn into conflict with the federal fugitive slave law. There was then, therefore, as in the Dred Scott case, a tendency by the court to go outside the specific question involved and deliver opinions intended to forestall such conflict. The detailed review of these cases which follows shows that in no case was the validity of the Ordinance involved. The decisions of the United States Su- preme Court which say (1) that the Ordinance is not binding were bridge cases and dam cases, i. e., cases of bridges or dams author- ized by statutes. These cases usually also say (2) that the Ordi- 7f;i iiaiu'o (Iocs iiof forbid l)ridfjiuf/, or (1()(‘S not foi-hid tlio stream when authorized hy slailui(^ of the Stale. The lat'ter ])oinit is all that is deeided by those eases. All else in those eases is e.r/ra judicial in origin, and inadvertent iu repetition. V. THE CONTENTIONS CONTRA REVIEWED. Aside from a bald reliance on tlie dictum of Cliief Justice Tanbv in tlie Stra.der case in 10 How., wliicli is elsewhere discussed, the argmnent on principle against tlie controlling effect of this legislation lias nsnally been presented as follows : ^‘First Contention Contra. That the ordinance is not in force as laiv in Illinois, because Illinois ivas admitted to the Union on an equcdity with the original States, and so could not he hound hy a compact not applying to the original State.’’ REPLY. 1. The original States themselves were hound hy the ordinance the same as the neiv territory. ‘Ht is hereby ordained and declared by the authority afore- said that the following articles shall be considei'ed as articles of compact between the original States and the people and^ States in said territory, and, forever remain unalterable , unless hy common consent, towit:” This binds the original States ecpially with the new ones. The admission of Illinois on an equality with the original States did not undo this, because this apx)lied to the oilginal States,- and each new State as it was added to them, as well as to Illinois. The language of the act of admission is: Shall be admitted into the Union upon the same footing with the original States in all respects whatever.” Tlie same footing with the original States was maintained l)y maintaining the Ordinance, because it bound both the original States on the one side and Illinois on the other. The original States could not abrogate the permanent provisions of the Ordi- nance without the consent of Illinois, and Illinois could not abrogate them without the consent of the original States (and the new 7()li States as siu-eessively added tliereto). This could l)e done (1) by Mie approval of the Illinois constitution by Congress — or (2) ])y the approval by the Federal Government of State legislation, and (2) vice versa. Iteply 2. Exact and literal equality was not intended and does not exist between any two States and is impossible. E(juality in rank and sovereignty is intended and this is not incompatible witli the navigation elaiise of the Ordinance. The States carved from the Northwest Territory are equal to the others ‘inasmuch as each has by its own voluntary will estab- lished its own government and has the power to alter it.” 1 McLean 344-349. Second Contention Contra. That the Ordinance of 1787 does not l)ind Illinois, because it was not voluntarily adopted 1)y her after she her a me a State in the Union. REPLY. 1. Tliis second contention contra is itself a corollary from the first and falls with the first. The underlying thought in both is that of unlimited State sovereignty, viz. : that the State, by becom- ing a State, suddenly, ipso facto, ceased to be under obligations, and therefore must re-enact for itself the Ordinance of 1787 in order that it should have any vitality. But as we have seen, the Ordinance bound the original States and Illinois equalh^ when a territory, and in becoming a State and entering upon an equal footing with the other States, Illinois did not cease to be governed by the Ordinance, because the original States were governed by it also. 2. We reply further that the enabling act required that the new State constitution should be ‘‘not repuynant to the Ordinance of 1787:” That the new constitution of 1818 by its preamble recited that : ‘Mdie people of Illinois territory having the right of admis- sion to the general government as a member of the Union, consistent with the Constitution of the U. S. the ordinance of 1787, and the law of Congress approved April 18, 1818, * * * * do ordain and establish the following constitution.” 7G3 Tliat the resolution ot* (h)Hgress of Dec'cunbei' 3, IHIS, a(liiiittiri<^ Illinois recites that its ('onstitution is ‘‘in conformity/ to the ])rin- chples’^ thereot*. This amounted to (1) the creation of a condition, and (3) the acceptance of the condition and (3) a ratification of the acceptance; and made the ordinance a voluntarily accepted part of tlie law of Illinois, as much as if a year later Illinois liad expressly re-enacted it. 3. The State of Illinois, by its earlist decisions, expressly de- cided that the navigation clause of the Ordinance was the law of Illinois. This was a declaration of its law and policy; and made the laiv for the State upon the subject. Its subsequent govern- mental and legislative acts declaratory of its policy (which are elsewhere cited) confirmed this. People V. City of St. Louis, 10 111. (5 Gilni.) 351. This case expressly affirmed that the Ordinance was law, and said of its guaranty of free navigation : “This guaranty of rights to the citizens of other States, al- though made before the creation of any of the States through or between which it flows, may be construed expressly as if it were a grant made subsequent to or at the time of their forma- tion. The Ordinance itself does not declare the Mississippi liiver to be a common highway and forever free to all the Oti- zens of the Union, but the navigable waters leading into it. This common right of free navigation of that river ivas coyi- sidered as already existing, and the extent and effect of that right may he understood from the provisions made in relation to the tributaries , as (dl were undoubtedly intended to be placed on the same footing.'' This decision established the Ordinance to be a ])art of the law of Illinois so far as it relates to the tributaries of the Mississip])i, and the tributaries of the St. Lawrence. It was the exact i)oint decided and the basis and point of the decision, which holds that the navigation clause of the Ordinance is to be construed “pre- cisely as if it were a grant made subsec|uent to or at the time of the State’s formation.” And the attempt of the city of St. Louis to fill up the narrow and only occasionally navigable Illinois channel of the Mississippi 7 ( > was (Mijoiiied and pi-eventod l)y the Supi-eine Court in the enforee- inent of this raght. Thud Contention Contra, viz., that the Ordinance of 3 787 was ])assed l)y the old Congress of tlie Confederacy, and that when the old Confederacy ceased to exist the Ordinance ceased to liave any effect; that it is not an Act of the present Congress under the (\)nstitution of 1789, and is therefore worthless. REPLY. 1. ffhis contention ignores the Act of Angust 7, 1889, by the new Congress under the constitution of 1789 at its first session, l)assed for the express purpose of continuing the Ordinance in full force and effect. 2. Again, the Treaty of Greenville secured the right of free passage by land and water from the mouth of the Chicago Eiver to the commencement of the portage between that river and the Illinois and down the Illinois Eiver to the Mississippi. This was an act of the new government in the exercise of its highest power, the treaty inaking power (U. S. Const., Art. VI) and it amounts to an express establishment of the highway by these rivers and the carrying place between, the nature and extent of which is else- where discussed under the heading Chicago Portage.” The Act of May 18, 1796, providing for the sale of lands in this territory, re-enacts the lorovision by 'Section 9 that ‘^all navigable rivers within the territory shall be deemed to be and remain public high- ways.” The Act of March 26, 1804, again provides that ^^all the navigable rivers, creeks and waters within the Indiana territory (of which Illinois was then part) shall be deemed to be and remain public highways.” 3. The Act of February 3, 1809, setting aside the Illinois terri- tory, provided that the inhabitants thereof : Shall be entitled to and enjoy all and sigular the rights, privileges and advantages granted and secured to the people of the territory of the United States northwest of the Eiver ()hio by said Ordinance.” These Acts of 1789, 1795, 1796, and 1804 (as well as the Acts of 1818 relative to the admission of the State), expressly re-enact the navigation provision of the Ordinance. 4. 44ioso were Acts ol* the new ^overninent under lli(‘ n(;w (\)nslitution dealing witli its own property wliieli it had acrjiiiraHl from the several different states, and for wliieh it had paid a valuable eonsideration' by assuming the debts of the different states, and they were valid exercises of the power conferred upon the new government to regulate interstate commerce. Furthei-, they were an exercise of the power conferred by Article 4, Section 3, Clause 2, of the Constitution of the U. S., viz. : ‘‘The Congress shall have power to dispose of and maAc all needful rides and regulations respecting the territory or other property belonging to the United States.” We have recently discovered in the insular cases that this is a great and far reaching power. But the cases on the Ordinance wall be searched in vain for any indication that this poiver teas ever brought to the attention of any of the courts which have heretofore construed the Ordinance. AVe are now appl^dng it to the several acts of the new Congress re-enacting the Ordinance. If the Ordinance had ceased to have any manner of affect, these re-enactments of it by competent authority establish tlie laiv of the navigation clause beyond dispute. 5. The suggestion that the Ordinance ceased to have validity because the Government which re-enacted it had been reconstituted by a neiu constitution is a solecism in constitutional and interna- tional law. If one principle is better settled than another in this field of jurisprudence it is “that no political change in a govern- ment annuls a compact made with another sovereign ]>ower or with individuals.” (1 McLean, 345.) The sacredness of national obligations is not a thing that can ])e trifled out of existence hy a change in constitution. AVhen the United States took over the Phillippines, it took them subject to such obligations as the pre-existing government had lawfully placed thereon. When Austria recently took over and annexed Bosnia and Herzegovina, it took them subject to such o})ligations as the })reviously existing government had lawfully placed thereon. When the German Umpire took over Alsace and Lorraine, it took them subject to sucli obligatioiiiS as the Frencli Empire had previously hiwrully ])laced tliereou. Wlieri tlie form of Government for tlie Illinois Territory was changed to a 'State Government, the new (lovermnent received the territory charged with all the permanent obligations laid upon it by the Ordinance of 1787 exce|)t such as wei-e ohligated l)y common consent. The exception consists of the slavery clause. The other permanent i)rovisions remained in force. This principle, maintained by McLean J., (1 McLean, 345), that ‘Mo political change in a government annuls a contract made with another sovereigm power or with individuals,” is sustained by all the authorities on international law. Chancellor Kent says: “And it is well to be understood, at a period when altera- tions in the constitutions of governments, and revolutions in states, are familiar, that it is a clear })osition of the law of nations, that treaties are not affected, nor positive obligations of ang kind with other powers, or with creditors, iveakened by any such mntadions. A state neither loses any of its rights, nor is discharged from any of its duties, by a change in the form of its civil government. The body politic is still the same, though it may have a different organ of communication. So, if a state should be divided in respect to territory, its rights and obligations are not impaired; and if they have not been apportioned by special agreenient, those rights are to be en- joyed, and those obligations fulfilled, by all the parts in common. ’ ’ 1 Kent, Com., 12th ed., foot page 28. Mr. TIali. in his Oxford treatise on International Law says : “Thus treaties of alliance, of guarantee, or of commerce are not binding upon a new state formed by separation, and it is not liable for the general debt of the parent state; but it has the advantages of privileges secured by treaty to its ]:)eople as inhabitants of its territory or part of it, such as the right of navigating a river running through other countries upwards or downwards from, its frontier; it is saddled with local obligations, such as that to regulate the channel of a river, or to levy no more than certain dues along its course ; and local debts, whether they be debts contracted for local objects, or debts secured upon local revenues, are binding upon it.” Hall, International Law, 3d ed. (Oxford, 1890), 96. President MMolsey enunciates the same principle thus: “A state is a moral person, capable of obligations as well as rights. These relations continue after it has passed through 707 a vJunifjc of constitution , i'oi* noiliwitlistiuulin^' tli(‘ (‘li{in^>o tli(; stale may still pi'oserve its attributes and riimdioris. No act of its oirn cull annitiilutc an olitif/ation to another state; and its rig’lits still eontinue, unless its forni'er eonstitutien et ^ov- erunient was the ('ondition on wliieli the ohiig'ations of otluu* states towards it were founded. The general rule tlien, as all admit, is, that rights and o])ligations survive a change of government or a revolution. 'So rvlien a, nation separates into parts, or unites with another state to form a new wliole, it cannot, even by such a process, which destroys or modifies its existence, divest itself of its obligations d' Woolsey’s International Law, Sec. 88. The classic expression of this principle in American affairs emanated from our first Secretary of State, Thomas Jefferson. in discussing the effect of the change in the French government upon existing treaty rights and obligations, Secretary of State Jefferson said, in response to the questions submitted by Presi- dent Washington. ‘‘I consider the people who constitute a society or nation as the source of all authority in that nation, as free to trans- act their common concerns by any agents they think proper, to change these agents individually, or the organization of them in form or function, whenever they ] dense. Consequently the treaties between the United States and France Avere not treaties between the United States and Louis Capet, but be- tween the hvo nations of America and France, and the nations remaining in existence, though both of them have since changed their forms of government, the treaties are not an- nulled by these changes.” Wharton, International Law Digest, foot ]>age, 47, Sec. 187. See also oi)inion of doiix" (ffjrNiw' Adams, Secretary of State (1818), 1 Atoores Digest of Intel-national Law, Sec. 9(). Our government has enforced this ])rincii)le in its relations with other powers : ‘‘A successful revolution does not relieve the country revo- lutionized from lialiility on its ])rior engagements to foreign states. (Mr. Fish, Secretarv of State, to Mr. Bassftt, Feb. 21, 1877. Miss. Inst. Hayti).” 1 Moore’s Digest of International Imws, p. 250. 'riiis view Avas presented in the trial court, hut tlie court accepted ll!(‘ language ot Ala. Justice ATaorudek in Dixon v. The People, 1()8 111., 179, and of the Federal Court in Htroder v. (iroliom, 51 U. S. (10 How.) 82 and in Sands v. Manistee River I mprovement Com])anp, 123 U. S., 288, as final; and when attention was called to the fac't that AIii. fJusTicE McLean in the Strader case had cor- rei'tly declared that the opinion of Taney on the subject Avas extra judicud; and that AIr. Justice Catron had correctly called it an obiter dictnrn and ''uncalled for,” the reply was a citation of People y. Read, 233 111., 351, at 354, as amounting to an exclusion from the jurisprudence of Illinois of the doctrine of obiter dictum. Ihit AA^e respectfully suhmit that the doctrine of obiter dictum is as much a part of the laAv of Illinois as any other of the doctrines relative to judicial opinions. The Lead case cites the Rhodes’ case, 227 111., 328, which in turn cites the Grronmies’ case, 158 111., 492, which in turn cites Ander- son’s Law Dictionary, 355, where the term is defined and a quota- tion is made from a decision hy Cassoday, J. in 60 AVis., 267. But the remainder of the passage there cited shows that the learned author and judge intended no modification of the well understood doctrine; and, the decisions of this court shoAV that it adheres to that doctrine of obiter dictum in all its vigor. Let us complete the (juotations made hy Dr. xAnderson. They are as follows: "To make an opinion a decision there must liaAm heen an application of the judicial mind to the precise question neces- sary to he determined in order to fix the rights of the parties. Therefore the Supreme Court has never held itself hound hy any part of an opinion which was not needful to the ascertain- ment of the question between the parties. Carroll v. Lessee of Carroll, 16 Hoav., 287 (1853) Curtis J.; 6 AVheat 399. 'The ease called for nothing more; if more wms intended by the judge who delivered the opinion, it was purely obiter.’ United States v. County of Clark, 96 IT. S., 218 (1877), Strong, J.; 107 id., 179.” In the Buchner case itself Judge Cassoday also said: "Besides mere obiter dictum, is not always re])rehensihle. ( )n the contrary, some of the most sacred canons of the com- mon hiAv have their oriyvn in the mere dida of some Avise jiid^'os. I'o he valuable, 'hou'cver, Ihe/i/ must, of eo}irse, he 'rUjhtr And in. the Carroll (aiso Mii. Justice Courtis (juotes ArARsiiAi.L. C. A., to tlio same effect thus: ‘‘ * In Cohens v. Virginia, 6 Wheat., 899, this court was uiucli pressed with some portion of its opinion in the case of Mar- burg V. Madison, 1 Cranch (U. S.) 137, 174. And Mr. Chief Justice M arshall said : ‘Mt is a maxim not to he disregarded that general expressions in every opinion are to he taken in connection with the case in which those expressions are used. If they go heyond the case they may he respected, hut ought not to control the judgment in a suhsequent suit, when the very point is presented. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent; other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible hearing on all other cases is seldom completely investigated.” The cases of Ex. p. City Bank, 3 How. (U.‘S.) 292, and Peck v. Jenness, 7 How. (U. S.) 012, are an illustration of the rule that any opinion given here or elsewhere cannot be relied upon as a binding authority unless the case called for its expression. Its weight of reason must depend on what it contains. ‘‘Carroll v. Carroll, 10 How. (U. B.), 275 and 280.” In Mayer v. Erhardt, 88 Ilk, 452, this court quoted with approval the foregoing quotation from Chief Justice Marshall, and made it the basis of excluding without overruling the dicta from two earlier Illinois cases and decided the case before them in exactly the opposite way from which this dicta called for. In Brotvn v. Coon, 30 111., 243, at 240, this court applied the same rule thus : ‘Ht is a familiar rule of criticism in regard to judicial de- cisions, that their authority arises from what the court decides in reference to the facts before it, rather than from what the judge who delivers the opinion may say in illustration and support of the ruling of the bench. Wlien it is remembered that judges are often obliged to write a hundred opinions per anuiim, they would be more than human, if they did not occa- sionally use expressions of a general character, whicli, while perfectly true in regai*d to the case before them, are at the same time incorrect when pushed to extremes or applied to a totally different state of facts. The very learned judge (Chi. J. Caton) v/ho wrote the opinions in the cases above cited, was little liable to this error. In the many hundred pages from his pen which illustrate our reports there are few in- staiu'os ill vvlii(‘li tlici generality of tlie expi'ession needs to lie (|nalifi(‘(l and limited by the nature of the facds. Hat it cannot he denied that the langnage of the ofiinions, in the cases cited, in r(‘gard to the invalidity of deeds like tliat now liefore the court is too general and swx‘eping. We at least so consider it, and wliile we ai'e still of the opinion that the deeds in those cases were in()])er(itive, as regarded the homestead rights they were not ahsoliitely void, for all purposes whatever.” FOURTH OBJ ECTTON . This is to the effect that the Ordinance does not prohibit the aiitliorization by the States of physical obstructions to navigahle streams, — siicli as bridges and dams, — but only imposts and dis- criminations by the States. REPLY. (1) This dam is not authorized by the State. Therefore the rule that the State might authorize it does not help it. REPLY. (2) The Ordinance ^‘insures a highway equally open to all without preference to any, — ^and unobstructed by duties and tolls.” Field, J., 113 U. S., 205. It leaves the policing of the highway as to physical obstructions , to the States. (Bradley, J., 125 U. S., 1.) Therefore 'this case was rightly brought in the iState Court. NO DICTA ARE PRODUCED FROM EITHER FEDERAL OR ILLINOIS COURTS CONSTRUING OR IN ANY WISE LIMITING THE EFFECTS OF THE ACTS OF 1796 AND 1804, RE-ENACTING THE NAVIGATION CLAUSE OF THE ORDINANCE OF 1787. This provision of those Acts has never been passed upon by either of the courts. This court may properly without reflecting upon any former decision of its own or that of the Supreme Court of the United States, decide the scope and effect of fliese acts de novo, and preserve to the People of the State the highway which those acts guaranteed to them. But it is plain that the trial court, out of over deference to this 771 conri niul tlio Siiprome (\)iirt of the United States, lins })res(*nt(;d to tins (H)iirt tlie responsibility of making* the initial deeision on that subject. AVe append a summiary of the cases u])on the subjecd. ILLINOIS CASES ON THE ORDINANCE OF 1787. The adjudications upon the Ordinance in Illinois are as follows: EARLY SLAVERY CASES. 1828 Phoebe, a woman of color v. Jay, 1 111. (Beecher’s Breese), 268. Trespass for assault. Plea that the plaintiff w-as an in- dentured servant, and ‘‘that in order to compel ]ilaintitf to attend to and perform Ihe duties of an indentured, «= * * * he had necessarily to use a little force and beating*, which is the same trespass, etc., * * * * “Several replications were filed, to which defendant de- murred, and the demurrers were sustained, and judgment given on the demurrers for the defendant. * * * * ^^0 first question presented by this case is, whether the ‘act con- cerning the introduction of negroes and mulattoes into this territory, passed 17th September, 1807,’ by the territory of Indiana, and continued by the territory of Illinois, was not a violation of the sixth article of the Ordinance of Congress, passed 13th July, 1787, for the government of the territory of the United States, northwest of the Ohio river. That })ortion of the Ordinance applicable to this case, reads as follows: ‘There shall be neither slavery nor involuntary servitude in tlie said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted.’ ” The court then recapitulates the tiurpose of the Act of 1807 con- cerning negroes, and says: (Opinion by Loc^kwood). “If the only (luestion to be decided was, whether this law of the territory of Illinois conflicted with the Ordinance, I should have no hesitation in saying that it did. * * * * But by the third section of the sixth article of the constitution of this state, ‘Each and every jierson who has been bound to service by contract or indenture, in virtue of the laws of the Illinois territory heretofore existing, and in conformity to the provisions of the same, without fraud or collusion, ishall he held to a S])ecific ])erformance of their (‘on tracts or in- dentures, and such negroes and mulattoes as have been regis- tered, in conformity with the aforesaid laws, shall serve out the time appointed by such laws.’ conclude that a It hone'll tlio act of tlio tciahtory in relation to indenturing negroes and inulattoes, was originally void, yet it enumerated a des(*rii)tion of i)ersons that tlie constitution of tliis state lias undertaken to fix their condition in life, and tlie riglrts they shall possess in this community. * * * * liow- (‘ver, urged on the argument of this cause, that the people of this state, wlien they assembled in convention, were not ab- solutely free and independent, and at liberty to adopt what frame of government they chose, for they were controlled by the constitution of tlie United States, and hj the Ordinance of 1787. * * * * Ordinance, Jioivever, is no donht still hindhuj upon the people of this state, unless it has been abrogated by ‘common consent.’ By ‘common consent,’ I understand the United States, and the people of this State, and whenever they shall agree that the whole, or any part of the Ordinance of 1787 shall be repealed, it will, so far as it affects this State, become a dead letter. The people of this State, by recognizing the validity of the indenturing and registering of servants, in pursuance of the act of 1807, before* referred to, gave their consent, to alter so much of the Ordi- nance as was repugnant to the constitution of this State. When the constitution of this State was presented to Congress, in order to our admission into the Union, the attention of that body was called to that clause of our constitution which re- (]uires that registered and indentured servants shall be held to serve pursuant to said act, and which was contended, and if I mistake not, was conceded to be a violation of the Ordi- nance. Congress, however, admitted this State into the Union with this constitutional provision, and thereby, I think, gave their consent to the abrogation of so much of the Ordinance as was in opposition to our constitution. (1 111., B’s. B., 270, 271, 272.) The court then proceeded to consider the goodness of the pleas, carrying the replication to the demurrer back to the pleas. The court held that the pleas were insufficient and reversed the judg- ment in favor of the defendant, with leave to the defendant to amend his idea. In (1836) Nance (a girl of color) v. Howard, 1 111. (B’s. B.), 212 ; (1836) Boon v. Jidiet (a woman of color), 2 111. (1 Scam.), 258 ; (1836) Choisser v. Hargrave, 2 111. (1 Scam.), 317 ; (1836) Sarah (a woman of color) v. Borders, 5 111. (1 Scam.), 341. the court re-affirms the decision in Phoebe v. Jay. 773 Tliesc (‘jisc's ihei-ofore, liold that the ( )r(liriariee is in foree except as 1o tlie slavery clause, and that the slavery clause liad l)een ahrog'ated hy the (‘onunon consent thus manifested. 1S41 lUtUeif V. Cromn'cM, 4 (3 Scam.), 71. This was assumpsit upon a promissory note, the consideration of whi(4i was the sale of a negro girl in Illinois. The plaintiff recovered judgment. The defendant, appearing hy Abraham Lin- (’OLN, appealed, and cited the Ordinance of 1787. The defendant had pleaded that it was part of the agreement that the vendor should produce the necessary papers and indenture to bind the girl, and that the same were not produced nor demanded. The couif. held that the note was without consideration and void, that it is a presumption of law in Illinois that every person is free without regard to color, and that the sale of a free person is illegal. 1843 Willard v. The People, 5 (4 Scam.), 461. Indictment for secreting a mullato slave owing service to a nii stress in Kentucky, contrary to the Criminal Code of 1839. The count inferentially decided that the taking of a slave from Ken- tucky to Missouri and incidentally passing through Illinois, is not prohibited by the Ordinance of 1787. 1845 Jarroi, a colored man, v. Jarrot, 7 (2 Gilm.), 1. The court there held that the descendants of slaves of the old French settlers, born since the adoption of flie Ordinance of 1787, and before or since the Constitntion of Illinois was 'adopted, cannot be held in slaveiy. The court there quote the case of Menard v. Aspasia, 5 Peters, 510, where the Missouri court had held the same way and the Su- preme Court of the United 'States declined jurisdiction, but said that if the decision had been against Aspasia they might have taken jurisdiction. The court also quote cases from Massachu- setts, Virginia, Mississippi, and Indiana, giving effect to the slav- ery provisions of the Ordinance of 1787. [These cases are sufficient to illustrate two general propositions. The ordinance dealt with slavery. Illinois was originally settled, in the southern part of the State, by people from Virginia, Ken- tucky and Southern Indiana. They had the southern view of the shiveiy (iiiestion. They were willing to get rid of so much of the Ordiuance as dealt with the slavery ([uestion. The Territory of Indiana, by the a(tt of 1807 had adopted provisionn concerning negroes and nmlattoes. The Constitution of 1818 ratified then existing arrangements under tliait act. Congress admitted Illinois with tliat constitution, declaring that it was in conformity to the Ordinance of 1787. It palpably was not in conformity to the Ordinance of 1787, and the cases which we liave cited plainly say that it is not a question of conformity, but of power. “This' is a question of power and not of policy. It is not the province of tliis court to determine whether it was politic, just, or humane, but simply whether the people in convention had the power to fix the condition of people of color thus situated at the adoption of our Constitution.” Sarah v. Borders, (4 Scam.), 341, 345. The court further plainly say that “If 'the only question to be decided was whether this law of the Territory of Illinois conflicted with the Ordinance, I should have no hesitation in saying that it did.” “From the decrees of the Constitution there can be no ap- peal, for it emanates from the highest source of power, the sovereign people. * * * * “The Constitution can establish no Tribunal with a power to abolish that which gave and continues such tribunal in ex- istence.” {Borders case). As on all other questions, the same decisions, sometimes expressly, sometimes inferentially, hold that the Ordinance remained in force, and that it was only by virtue, first of the Act of 1807, 2d, the constitutional provision of 1818, Art. 6, Sec. 3, and the ratification thereof by Congress, that a “com- mon consent” to the abrogation to that extent, concerning slavery, was brought about. The rest of the Ordinance re- mained in force.] The story of the unsuccessful struggle to make Illinois a slave state is narrated in the Life of Edward Coles, second Governor of Illinois, by E. B. Washburne (Chicago, Jansen, McClurg & Co., 1882). Without going further into this branch of our history, we inay refer to the “History of the Ordinance of 1787,” by Governor Coles, and to the whole line of these early decisions, as showing how intimately the question of slavery was interwoven with the force and effect of the Ordinance. / i >) F.AULV li.LlNOlS (WSES ON I i E OliDI N A N (’E OF 1 7H7, O'I'IIEE ^1’ 1 1 A N SLAVEHY (WSES, AND OTIIEH, 'I'llAN NAVIOATION (^ASES. Ackless v. S('elx right , Bec'clier’s Breeso, [>. 7(). “By tlie Ordinance of 1787 hu't two of the snl)scribin^ wit- nesses to a will are re(]iiired to prove it, and a will attested hy three, one of whom is a devisee in the will is valid.” (ilead Note.) Reynolds, C. d. — ”It is a sufficienf answer that by the law wliich governs in this case but two of the sul)scribing wit- nesses are required to establish the execution of a will, and when thus proven is good to all intents and purposes.” (Will dated Jan. 27, 1806; death of testator, 1806; his heir at law and first devisee died before majority, in 1816. Devisee over by ex- ecutory devise then entered. Ejectment by heirs at law of first devisee, and heir of tesfator brought in State Court. Judg- ment for defendant. The Act of the Legislature of Illinois making the Register’s cer- tificate of the purchase of land at the IT. S. Land Offices, evidence of title, does not conflict with the Ordinance of 1787. (On the Beaubien claim to the S. W. Fractional (Quarter of Section 10, Townshi]) 89. Range 1-t, East, — the site of Fort Dearborn.) 1837 M( Connell v. Wilcox, 2 111. (1 Scam.), 814, 870-7. 1841 Fenny v. Little, 4 111. (8 Scam.), 801. This was an action of trespass, to which 4he defendant pleaded in jirstification, under a landlord’s distress warrant. The plea was held good on denmrrei*, and on a])i)eal there is an extended dis- cusision of the common law remedy of a landlord u])on a distress warrant. The court, after tracing the histoi-y of the Territoi-y and the adoption of the coimnon law to the fourth year of James 1, with the three exceptions named in the statute, says: “That ordinance (of 1787) contains (‘ertaiii ai4i(‘les ol‘ com- l)act between the original states and the i)eo})le in said terri- tory, which articles, it is declared, shall forever remain un- alterable, unless by common consent. In said arti(*les, it is provided, among other things, that the irdiabitants of said territory, shall always be entitled to the benefits of judicial ])roceedings according to the course of the common law. * * * It was evidently their intention to secure to the inhabitants of the territory, the benefits of the common law as it was then understood and expounded by the (‘ourts in America. * * * yye therefoi'e of the opinion, that as the law now stands in this State, a landlord has a right to disti*ain for rent, wkliout i*eservdng the i)rivilege in tlie lease. 1S()8 V, Boyles, 49 ]11., 110. Widoiv’s Share of Personal Estate. Opinion l)y Lawkence, J. ‘‘Fi*oni the time of the ordinance of 1787 to the year 1845, a widow was entitled to one-third of the personal property ahso- Intely, after the payment of debts, even thougli the husband left (‘hildren surviving. This, having always been the law of this Ter- ritory and State, was universally known to our people, and the share of the widow was |)roperly designated as ‘the widow’s third.’ ’* * * |3xit the revision of 1845, though upon an excel- lent plan, was somewhat hastily executed and some omissions oc- curred. * # * “ But this omission was corrected in 1847, when her paramount right to a third part, after payment of debts, even as against his children, was restored. It thus appears that from the first law upon this subject in 1787, to the present time, with the exception of these two years’ omission, wdiich we must regard as accidental, the wife has been entitled to a share of the personal estate, even as against the children, equal to one-third part.” This is an interpretation of the provision of Section 2 of the Or- dinance “Saving in all cases to the Avidow of the intestate her third part of the real estate for life and one- third part of the per- sonal estate; but this law, relative to descents and dower, shall remain in full force until offered by the Legislature of the dis- trict.” The court specifically holds that that provision of the ordi- nance was in force in Illinois until altered by statute. 1840 Sprayins v. Houghton, 3 111. (2 Scam.), 377. The court held that every Avhite male inhabitant of the State, aged 21, who had resided in the State six months immediately preceding any general election, is entitled to vote. A judgment had been rendered against a judge of election for a penalty for receiving the vote of a person who met these condi- tions, but was a native of Ireland and had not at that time been naturalized. The judgment was reversed. In reaching this conclusion the court cited the provision of Sec^ tion 9 of the ordinance, giving representation “For every five hun- dred free male inhabitants,” etc. Although it restricted eligibility lo act as a re])resentative to citizens, the courts say (p. 393) : 777 “It is of iinj)()rtar.('(* lioi-e to ascaotairi wliotlioi* tli(^ ()i‘(Jinari(‘(i of 17S7 })(M'inilt(Mi rosidoiit aliens to he rciprescnilati ves in tlie Terri- torial l.egislatnres, and to vote at eleedions for r(;])resentatives. Under this nndenia])le poli(*y, and after it liad })een prae- tieed on in the Illinois Territory for a ])eriod of more than six years, tlie (\)nstitntion of Tllinois was formed, and the provision relative to the elective franchise ado})ted (p. 895). * * ^ evident sense in which it (‘‘Inhabitant”) is employed in that ordi- nance, and the subsequent facts which followed, and have uni- formly accompanied its emplo^yment, from its incorporation in the Territorial laws of the northwestern territory, the Acts of Con- gress for the admission of those Territories and reception into the Union, and the steady and uniform rule adopted by every de- ]:>artnient of the Government of this State, without a single excep- tion up to the present hour, should be conclusive of its meaning (p. 409.” The court then concluded that “resident” in the Illinois Statute of 1829 did not mean “citizen” any more than “inhabitant” did in the ordinance of 1787. 1879 People ex rel. McCrea, Collector^ v. United States of Amer- ica, 93 111., 30. In this case the court held that property ac(piired by the Federal Government in pursuance of the Oonstitiition within the State of Illinois, as a means of carrying on the Federal Government undei* the Constitution, was not subject to taxation by the State. The ordinance of 1787 contains the i)rovision in Article 4 (the same article which contains the navigation clause, and in the sentence immediately preceding the navigation clause) as follows: “No tax shall be imposed on lands or ])roperty of the United States.” The court, Scott^ J., says : “Conceding the clause of the ordinance of 1787, cited, is still in force, and binding on the State, it would seem to be an absolute inhibition u])on Ilie State to im])ose any tax upon lands, the prop- erty of the United States, no matter how the title might be ac- (juired, nor for what pur})ose held. It was ordained that the six articles of compact between the original States and the People and States in such Territory, and forever remain unalterable unless by common consent. “In Phoehe v. Jay, Breese, 268, it Avas said, the ordinance was, no doubt, binding upon the people of the States, unless abrogated by common consent. By ‘common consent’ was understood to be by action of the United States and the people of the States affected. (Congress, having admitted Illinois into the Union with the con- stitution adopted, gave eonseiit to tlie abrogation of so niucli of the oi'dinaiH'e of 1787 as was iiieonsistent with that instrument, hut sueli provisions as were not in opposition to our constitution were held to he binding on the State. “M(d jEan, d., on tlie circuit, expressed substantially tlie same views, in two cases heard before liim- — Spooner v. McConnell, 1 Mc- Ijean, IVM ; Palmer v. Commissioners, 3 id., 22(). The Supreme court of the United States, liowever, seem,s to have adopted the view that the ordinance of 1787 is not in force in the States since formed witliin the Territory mentioned and admitted into the Union on an ecpial footing with tlie original States. The question was raised and discussed in Permoli v. First Municipality , 3 How., 7)89. The Act of Congress of April, 1798, extended the ordinance of 1787 to the then Territory of Mississippi, with the exception of the anti-slavery clause, and declared the people of the Territory should he entitled to and enjoy all the rights and privileges and advantages granted to the people of the territory northwest of the Ohio River, and by the Act of March 2, 1805, it was enacted that the people of the then Territory of Orleans should ha,ve all the rights, privileges and advantages under the ordinance of 1787 then enjoyed hy the people of the Mississippi Territory. “Although the decision in Permoli v. First Mumcipality was confined to the Territory in which it arose, Taney, C. J., in remark- ing upon it in Strader v. Graham, 10 How., 82, said, AVhen it is decided that this ordinance is not in force in Louisiana, it follows it cannot he in force in Ohio.’ It may he added, as a matter of course, if the ordinance is not in force in Ohio, it cannot be in force in Illinois. An elaborate discussion of the effect of the ordi- nance of 1787 and of the Acts of Congress extending it to other teriitory, was had in Pollard v. Hogan, 3 How., 212, and Chief Justice Taney, in Strader v. Graham, refers to the opinion deliv- ered in that case and expresses his concurrence in the reasoning and principles hy which the judgment was maintained. “The question raised is one of grave importance, and without expressing any definite opinion as to whether the clause of the fourth section of the ordinance of 1787, cited, has been changed or annulled by competent authority, or whether it is still binding as an inhibition on the taxing power of the State, we tliink the present judgment max be maintained on other grounds.” (Pages 31-35.) THE NAVIGATION CASES UNDER THE ORDINANCE OF 1787 IN ILEINOIS. 1818 People v. City of St. Louis, 10 111. (5 Gilm.), 351. That was a bill to enjoin the City of St. Louis and its agents from filling up the narrow eastern channel of the Mississippi be- tween Bloody tsland and the Illinois shore. The court below dis- 779 luissod tlio bill and tlin Suprnino (‘onrt i*ev(‘rs(‘(l it and ()i-d(n-(‘d a porpotnal injniu'tion. d1ie facts were stated by the coni't tliiis: “The prin('ij)a! (*bann(*l of tlie river, with about five-(hglitlis ot the water, passes west of Bloody Island; and this channel is used for all ordinary pur})oses of navigation, passing up and down the river; while the eastern channel can only be navigated with a small class of steamboats, and wiith flatboats, keelboats and barges ; although in a very high stage of water it is safe for the very largest class of boats ; and in a very low stage it is hardly navigable at all, but is used for mooring boats. Although the Mississippi Kiver is not what is termed by the common law a navigable stream, yet it is so, in fact, and has been declared to be so, and recognized as such by numerous treaties and many public laws. While its outlet and western border belonged to ^Spain, it was declared in the fourth section of the treaty of 1795, between the United States and tliat power, ‘that the navigation of the said (Mississippi) river in its whole breadth, from its source to the ocean, shall be free only to his subjects and the citizens of the United States, unless he shall extend the privilege to the subjects of other powers by special convention.’ 8 U. S. Stat. at Large, 141. And by the fourth arti- cle of the ordinance of 1787, it is provided, ‘that the navigable water leading into the Mississippi and St. Lawrence, and the car- rying ])laces 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 State that ]nay be admitted into the confederacy, without any tax, im})ort or duly therefor. ’ “It is an important in({uiry to determine what kind of juristli(“- tion the several 'States, through and between which this river and its tributaries run, may exercise over such parts of them as ure within their respective limits, without violating the rights thus secured to the citizens generally. This is certainly a deli(‘ate (pies- tion, and in its solution it is necessary to examine, as well the rights and benefits secured to the citizens of all the States, as the powers and jurisdiction of the several States over the portions of this great highway, within their several boundaries. Jiideed, the determination of the one settles the other; for the sovei'eign power of these States over this highway is only limited or dimini'shed by the guaTanty of rights to the common citizens of the Union. But for that guaranty, the sovereign ])ower of the States over the por- tions of the river within their limits, would be the same as it would be over any of their highways. AVhat, then, is this common right guaranteeci to all! Mdiat benefits were they to derive from it, and what were the privileges which they were to enjoy! The object to be attained was the promotion of commerce, and the rights secured are purely commercial. The States can do nothing which will suh- stantially abridge those rights, but may do anything which will not have that effect, whicli they could do but for this guaranty. 780 Without this g-uaranty, the States might treat auy portion of -this river vvitliin their limits as a highway or not, and if made a high- way their control and jurisdiction over it would be the same as over any other of fheir liighways. This guaranty of rights to the citi- zens of other States, although made before the creation of any of tlie States through, or between, which it flows, may be constmed precisely as if it were a grant made subsequent to, or at the time of^ their formation. The ordinance itself does not declare the Mississippi River to be a common highway and forever free to all the citizens of the Union, but the navigable waters leading into it. This common right of the free navigation of that river was consid- ered as already existing, and the extent and nature of that right may be understood from the provisions made in relation to the tributaries, as all were undoubtedly intended to be placed on the same footing. There are two prominent restrictions upon the States to be formed; one was that these rivers 'should never be closed against the citizens of other States, and the other that no tax,’ impost or duty should be exacted of them for the navigation of these highways., Wdiere no material or substantial obstructions are created by the States within whoise limits those rivers run, the citizens of the other States cannot complain. The substance of the in gilt secured, is, that of free transit. Suppose one State or Na- tion guaranty or grant to the citizens or subjects of another the right of freely traveling over its public roads, would it be denied that such State or Nation might narrow or change the location of such road, provided its free and commodious passage was not in- terrupted thereby*? It is the substance of the right that is to be observed, and when that is enjoyed no ground of complaint exists. The several States may, within their own jurisdictions, do what- ever they please with this river, so as they do not infringe upon these rights, nor otherwise violate the rights of others. This ]iower is necessary to the States for the proper management of their own domestic concerns, and has been habitually exercised by all ever -since their first formation. They may change the current of this river, or even stop up some of its confessedly navigable channels, whenever they find it necessary to their own well being, the same as any other highway, taking care that they leave a free navigation to those who have a right to navigate it. As in the case before us, admitting this eastern channel to be unquestionably nav- igable, and hence a part of the highway, this State has a right to fill it up entirely and unite the island with the main land, if the main channel is still left open to free and uninterrupted naviga- tion. If, in doing this, private property would be damaged, com- pensation would have to be first made for that. The exercise of such a power, at this or some other point, might be indispensable for the terminus of a railroad or canal or some other public work. Without this power, the jurisdiction of the States over this portion of their territory would not b>e wmrtli the name, (a) It re(]uires no vivid imagination to see in the future the immense improvements 781 . that are to spring* u}) all along* both banks ot* this river from its source to its mouth, which will be of immense advantage not only to the States in Avhich they are 'situated, and the local interests in their neighborhood, but to the general navigation of the streams, and all made, too, by the exercise of this power by tlie States ovei* this great public highway. To deny this, is to deny the right of improvement, as well as the power of injury. The absolute ne(;es- sity of this power may be illustrated by many familiar instances, such as the improvement of the Naples flats in the Illinois liiver. There the river is broad, and nearly as navigable in one part as another, and who would deny the right of the State to compress the water into a narrow compass, and thus deepen the channel? ^^If this Illinois channel is not a part of the public highway, then the public have no right to na^dgate it, and consequently whoever goes there is a trespasiser upon the owners of the soil. * * * ‘‘We cannot entertain a doubt that the eastern channel of the Mississippi Kiver between Bloody Island and the main land, is in fact, and within the meaning of the law, navigable, and part of the common highway. We have sought in vain for satisfactory author- ity, vesting in the court a discretion to continue or dissolve the in- junction, as it might deem most conducive to the public good. Had we that discretion we should not hesitate to affirm this decree; for if we were permitted to form an opinion we could not doubt, judging* from the facts as agreed upon in this case, that the best interests of the public, as a whole, would be thereby subserved. But that opinion, as the case stands, could only be expressed as individuals, and others might judge differently. The discretion involved is vested in another branch of the government. We are not at lib- erty to look at these general results in determining whether these works would amount to a nuisance. The executive or attorney general may very ])ro})erly have considered it an imperative duty, to protect the rights of the State against encroachment, leav- ing it to the Legislature, where the question properly belongs, to say whether permission should be given to proceed Avith these works. ******* “But where, as in this case, the nuisance could never be abated, and the public rights could never afterwards be enjoyed, the court may not evade its manifest duty as pointed out by the law, but must effectually and in earnest interpose its restraining power. It is the business of another department of the government to de- termine whether the welfare of the State, and the interests of the public, can permit these works to progress. While we might be of opinion that it would eminently promote the public welfare to fill up this eastern channel, and permanently unite Bloody Island AAuth the main land, it is possible that the Legislature might think that it would be better for the interests of the State to let the walc'r work its way, and a('(‘()jii})lisli wliat is antiei})ated in the re- j)()rt of one of the engineers, and change the main cliannel of the river to the east of the island. If sucli a result can he prevented ])y the exercise of any legitimate power by the owners of the banks, now being washed away, as by i-iveting them, we tliink the State conld not (‘omplain, ])nt propriety and self-interest, as well as pub- lic duty, sliould have dictated an ai)i)lication to tlie ])roper autliori- ties, before any attempt was made to fill n[) and entirely destroy a navigable channel of the river situated entirely within the State. It cannot, however, be denied tliat tlie State, as such, has a right to insist that one of the navigable channels of this river, lying en- tirely within its own Imrders, and which is a part of the public highway, shall not be destroyed without her consent. The Legis- lature is the proper department to judge what the interests of the State require, or may permit, and it is there, and not to the courts, that appeal must be made, for the sanction of, or permission to arrest these works. ‘^The decree of the Circuit court must be reversed with costs, and a decree entering here making the injunction perpetual.” [This iis a specific case directly holding that the provision of the ordinance of 1787, securing the free navigation of the river, is in force in Illinois, and it is the basis of the decision. The ordinance guaranteed the free highway through the little channel which ‘dn a very low stage is hardly navigable at all,” just as effectually as it did in the main channel of the river. There can be no manner of doubt that if the case at bar had been before that court which de- cided that case, it would have granted a perpetual injunction here just as it did there.] 1865 Illinois River Packet Company v. Peoria Bridge Associa- tion^ 38 111., 467. In this case the court was asked to treat the ordinance as for- bidding the bridging of the Illinois River. The court said : ‘‘It is unnecessary to decide the question whether this or- dinance is in force or not.” “The meaning of this expression, ‘shall be common high- wayis and forever free,’ is made very manifest by the conclud- ing words, ‘without any tax, impost or duty therefor.’ “This river is a common highway, free to the Indian in his bark canoe, and to eveiy other vessel floating upon the water, whether propelled by animal power, by the wind, or by the agency of steam. It is a common highway, free and so for- ever to remain, to all citizens of the United States, no matter where residing, not one of whom, in the free use of it, can be 783 ('oinpc'llcHl, mul(‘r any protoxi, to pay any tax, impost or duty wliatovoi* tlunad'or, nor ai>ainst its use shall tlima; ho any oh- striud ion. “ddierx^ is no r(\stri(‘tion on tlie ])()wer of tlie State, if this ordinaiu'o be still in force, to nse the most approved aidifieial means for crossing tliose waters. It oidy ])rohil)its its ob- struction, and the impoisition of any tax or duty on its naviga- tion. * * * /y-’ (iQ-yyi made, or a duty levied on ves- sels for oi)ening the draw, it might witli triitli be said the nav- igation was obstructed. * * * So that the navigation is left free, in tlie sense in wliich we expound this provision of the ordinance, nothing less than a total ohst ruction hij dams or other impediments of that nature, would be a violation of its provisions. Navigation on it would not then be free, for the very current itself would be in custody and mankind be ex- cluded thereby from its profitable use.” In applying the ordinance, the court said (pp. 479-1-82) : ‘‘It will be seen the ordinance of 1787 includes navigable waters leading into the St. Lawrence River, and they are de- clared forever free. The Chicago River is such a water, pour- ing, by the ocean-lakes, its comparatively trifling flood into the St. Lawrence, the latter wholly within a foreign jurisdic- tion. ‘‘On the borders of this little river, within the memory and active life of men yet young, now performing their parts on its busy stage, a city has grown u]), numbering near two hun- dred thousand people, who are separated, by the iieculiarities of the river, into three great divisions, with an ei^ual number of inhabitants, or nearly so, in each, the river, liy its main stem and branches, rising and running in directly opposite di- rections, capable of sustaining vessels of great draft of water, affording a harbor for them, of more than fifteen miles in ex- tent, is spanned in its course to the lake by several bridges, over which vast crowds of people and ]>roperty, in vehicles of every description, horsemen, footmen and carriages, hourly pass. Has any one ever isupposed the facilities of intercourse and business afforded by these structures should be, of right, subordinated to even the immense commerce which crowds the channel of this river and whitens, in the season of navigation, its bosom with tbeir canvass? Has any one advanced the idea that those bridges, furnished with capacious draws, for the passage of vessels, mateT'ially ol)struc*t its navigation? Or if they do, have not all yielded to the necessity of their erec- tion? How could the business and intercourse of that great and growing city be carried on without these facilities ; and while the navigation of the river is not su})jected to any tolls or duties, who has a right to complain of these structures? Has it ever been supposed that river is not a highway, as 784 (‘oinmioii and as frep for navigation as it was wlien animated only by tlie Indian in bis eanoe! it is a common liigliway, as every day shows, and free, because no duty, tax, impost or (Iiarge of any description is imposed upon tlie use of its water for i)ur|)oses of navigation. In the same sense is the Illinois Kiver a common highway and its navigation free, and will re- main so, when spanned by a hundred bridges, provided a suf- ficient channel is left, and no tax or duty levied on the use of its water. A mere delay in passing these bridges, which pru- dence would advise at unpropitious moments, when winds and currents are not favorable, can not, in our judgment, affix to them the quality of a material obstruction, or of any other description of obstruction, for the erection of which the own- ers should be liable in damages. It is a matter of necessity that the franchise of navigation should be constrained to meet the exigency and yield some of its asserted rights for the sake of works of such great public utility. As the bridge could not be built without the piers, the construction, being on an approved plan, and placed where they should be placed, relieve the defendants from any responsibility, if the piers were the cause of the injury, if no negligence be shown by them. ‘‘But it is not only the navigable waters which ishall be common highways and forever free, but also the ‘carrying places’ between the same. “To imderstand fully this provision, we must consider the condition of the country through which those streams flowed, and the mode by which the trifling commerce of that region was carried on, when the ordinance of 1787 was adopted. His- tory tells us it was then a barbarous region, peopled by sav- ages, whose frail barks were the only vessels which floated on these waters, and whose light paddles were then their only propelling power. These slight vessels, loaded with the prod- ucts of the chase or of isuccessful trapping, in their route to Montreal or Quebec, then the great markets for furs and peltries, on reaching the highest point accessible to them by ' water, would be unloaded, and the boats and cargo carried on the backs of the employes across, by land, to another stream, flowing in the required direction. These places were called ‘portages,’ or carrying places. Who shall say that these noted carrying places shall not, at some future day, be occupied by a railroad, or several of them, and by canals, should the wants of the extended and growing commerce of the fruitful regions where they are demand them! Shall this provision of the or- dinance be an insuperable bar to such improvements, and thus fetter forever the commercial energies of that region! All that can be claimed is, that as carrying places they shall re- main free as a common highway to all whose interests may re- quire their use as such — ^interests so trifling and inconsider- ahlo, so dwarfed by the growth and ])rogress of tin; eonatry, as not to stand in the way of the eanal )[)oat, the steamboat, and the railroad (^ar. The same eonsiderations a])ply to the rivers themselves, and must be made practieal, by the rieeessiti(‘s of our existence as a great conmiercial people.” in C'allaghaii & Company’s annotated edition of tlie Illinois Re- })orts, the late Judge Van Buren Denslow appends to this Peoria Bridge ease, a learned note, 38 111., pp. 482 et seq., in whieli lie sums iq) the decisions on the ordinance as follows : ‘^In TF. (& J. Hogg v. The Zanesville M. <£ C. Compang, 5 Ohio, 410 (1832), usually considered the leading case on the subject in the West, the provisions of the ordinance of 1787 were first invoked for this purpose. The defendants had been authorized by the Legislature of Ohio to erect a dam across the Muskingum River, putting therein a lock for the passage of boats. The lock became choked during high water, and plaintiff lost his boat in trying to pass over the dam. A ver- dict for ])laintiff was reserved for the opinion of the full court, wlio gave judgment on it, holding that the acts must be so construed as not to allow any interference with the naviga- bility of the river, and that when the lock got out of order so that boats could not ])ass conveniently, the dam became n nuisance. Under any other construction they say the nets would have been inconsistent with Art. 4 of the ordinance of 1787, which was as binding on the State of Ohio as its own constitution. See also Cox v. State, 3 Blackford, 193 (1838). Fox had been indicted for obstructing White River witli a mill-dam, under authority from the Legislature; and the Su- preme court of Indiana, while leversing the conviction on other grounds, held that the statute authorizing his dam was uncon- stitutional and void, because in conflict with that ordinance.” ‘‘The position thus taken was elaborately discussed and sustained by the U. S. (fircuit court for Ohio in the case of Spooner v. McConnell et al., 1 McLean, 337-383 (1838), in which very long and able opinions were delivered both by Mr. Justice McLean and by the District Judge, II. II. Leavitt. It was an application for an injunction to ])revent the State Canal Conmiissioners from erecting a dam across the Maumee River. It was refused on the ground that the plaintiff had not sufficient interest to sustain his interference, but with an inti- mation that had the petition been filed by a person actually engaged in the navigation of that river, the case would have been different. The opinion of McLean, J., seems to ns one of the finest ever delivered by that truly great judge. He shows that the provisions of the ordinance of 1787 res{)ecting navigable waters in the Territory were still in full force and effect, and that the Legislature could not (‘ontravene them ;s and in an (‘xtendcHl distaission of ‘State Sovereignty’ lie sliows that the sovei-eignty of the State of Ohio was not ineonsistent with this restraint on the powers of the Ijegislatiire. At tlie same time he intimates that this restriction would not extend to ordinary works of improvement. But this ])oint was more (‘learly i-ul(‘d in the suliseipient (ause of Palmer v. Cuyahoga Co., d Mcljean, 22G (1842), in wliich an application for an injunc- tion to pi-event the construction of a draw-liridge over tlie Chiyahoga River was refused. The opinion is a brief one. resting entirely on the preceding one; but the case decides (‘learly that a draw-bridge is not sucli an olistruction as the or- dinance forbids, and that no doubt is entertained of the power of the State to make one. “The next case of importance in chronological order vras ]Villiams v. Beardsley et al., 2 Carter, 7 (Ind.), 59 (1851), a case remarkably similar in all its circumstances to the one which has suggested the ])resent note. The plaintiff, wdiose boat was injured by collision with defendant’s bridge, asked the court below to charge (substantially) that if the effect of the lu'idge was to make necessary any change whatever in build- ing, manning or e(piii)])ing tlie boats used in navigating the river, or if it in any degree made navigation more dangerous, it was a nuisance, and (die plaintiffs could recover unless wil- fully^ negligent. The court modified these instructions by in- serting ffinless the general and public advantage arising from the bridge exceed any slight inconvenience arising therefrom,’ and other words to the same effect. The Supreme court held that those instructions ^Ye^e at least as favorable to the plain- tiffs, who apiiealed, as they had any right to demand; that a draw-l)ridge was not necessaiily a nuisance (as a dam was, Cox V. State, 3 Blackf., 193, supra) or forbidden by the ordi- nance of 1787; and followed the preceding cases in recognizing the paramount authority of that ordinance. “Meanwhile the ground had been cut away from under all these cases, by a series of decisions in the Supreme court of the United States that no part of the ordinance of 1787 re- mained in force since the adoption of the Constitution of the U. S. and of the States fonnecl from that Territory. See Pol- lard’s Lessee v. Hagen, 3 Howard, 212 (1845) ; Permoli v. First Muiiieipaliiy, eie., id., 589 (1845), and Strader v. Gra- ham, 10 Howard, 82 (1850). McLean and Catron, JJ., dis- sented in the last named case, and a very ])ow^erful argument bearing directly against all the reasons of the majority for their holding will also be found in the case in 1 INtcLean already cited. “The I". S. Su})reme court had also long before decided in the great case of Gibbons v. Ogden, 9 AVheaton, 1 (1821), that a State had no right to prevent any citizens of the Ignited 7H7 Stales fi-oin navi^’atia^’ tlie iiavigahle watca's williin its bouiuiarios, founding’ its dcK'isiorii oil tluM'onstitutioiial I'iglit of (\)iii>ross t.o 1 ‘egnlate coiniiuMTe and on the eni-ollnunit and lieensing a(dis. But it liUid also in Wilson v. The Block Bird Brcidi il/(/r,s7^ Co., 2 Peters, 245 (1829), decided that an M(‘t of the State of Delaware, ])erinitting a small navigable creek within that State to he closed by a dam, was valid on the ground that Oongress had not legislated on that subject. In the AVheeling Bridge case, next to be mentioned. Judge McLean attempts to distinguiisli that case from this (see 13 Howard, p. 5()()), but it seems to us impossible not to concur in the view of (;h. d. Taney in his dissenting opinion {Id., p. 585) that the case in 2 Peters was directly in point; in which case, however, it must also be considered as overruled by the later and more famous case next to be mentioned. “The Bridge over the Ohio at Wheeling, which the plaim tiffs in the case of The State of Pennsylvania v. The Whe.elmy and Belmont Bridge Co. et al., 13 Howard, 518 (1851), souglit to abate as a nuisance, had no draw, but was elevated far enough above the river to allow all but a few of the very larg- est boats plying on the Ohio to pass under it freely. Still the court held it to be a nuisance, and required it to be raised still higher, or else to be altered so as to admit of the passage of boats by a draw. This decision wms based entirely on the exclusive power of Congress to control commerce and naviga- tion and their acts regulating navigation on the Ohio, ft also repudiated the doctrine winch had crept into some of the later cases, that the lawfulnesis of such a l)ridge was to be ascer- tained by a comparison between the injuries and benefits it ])roduces, citing the cases of The King v. Sir John Morris, 1 Barn and Adoh, 441, in which it was held that the impiiry can not be balanced against the benefits secured, and The Kmg v. George Henry Ward, 4 Ad. & Eh, 384, holding that wdiere the jury found that an emhankment complained of was a nuisance, but that the inconvenience was (‘ounterbalanced by the ])ublic benefit arising from the alteration, it amounted to a verdi(*t of guilty.” “This case wuis followed by Works v. The Junction Bail road Co., 5 McLean, -1-25 (1853), by (ddnmb'iis Insurance Co. v. Cur- tenims et al., (> M('Lean, 209 (1854), and by Same v. The Peoria Bridge Co., Id., 70 (1853), the Inst fwo l}eing the same case under different yhiases. The second case came u]) on a de- murrer to the i)lea, and Judge Drummond, in a very able opin- ion held that a ])lea which avei*red exact compliance witli the. law authorizing the building of the l)ridge was not suflicient, but that defendants must also show that the bridge was- not an essential obstruction — in other words, that the State Legisla- ture could not conclusively determine what was oi* was not an essential obstruction or a sufficient i)assage-way. ” “In referenco to tlie validity of the ordinance, Judge I), remarks as follows: ‘it is said that tliis provision of the ordi- nance is not in force. This iseems to })e the doctrine now es- tahlislied by the Su))reine (k)urt of the United States, contrary to what has been the genei'al understanding for many years in the States carved out of tliat Territory (citing cases J and iO Howard, supra). It was never don])ted but tliat any pro- visions of the ordinance whicli were contraiy to the constitu- tion of the U. S. and the laws' jiassed in pursuance thereof, or to the constitutions of the States formed out of that Terri- tory, were abrogated, because the common consent mentioned in the ordinance was then presumed. But it seems certain that (Congress did not exactly regard the ordinance as at an end, hy tlie adoption of the Constitution of the United States, as is ])lain from the very first law on the subject adapting it to the constitution, 1 Stat. at Large, 50. And in allowing the various States which were formed out of that Territory to adopt State governments, provision was made that they should not do anything repugnant to the ordinance, with certain speci- fied exceptions. As to Ohio, Act of April 30th, 1802, Sec. 5. 2 Stat. at Large, i73. As to Indiana, Act of April 19, 1816, Sec. -f, 3 Stat. at Large, 428. And the same is true of the States 'Since admitted, Michigan and Wisconsin. And Congress extended the provisions of this ordinance, except the intro- ductory clause, over some of the South M^estern States.’ 6 McLean, pp. 212-13. But the learned judge also goes on to show that there has been legislation by Congress since the adoption of the Constitution securing to the people of the North Western States all the rights of navigation which the ordinance did or could provide for.” “In 1865 the long litigation over the Eock Island Bridge first appears in The United States v. The R. R. Bridge Co., 6 McLean, 517, in which an injunction against the building of that bridge was refused, on the ground that no irreparable injury was shown. But to follow out the line of decisions of which this is the precursor would lead us to questions adhuc sub judice, with which of course propriety forbids our med- dling, and this note has already been extended beyond its ex- tended limits. It will be seen that the fulcrum of judicial in- terference with the chartered interests of bridge-owners still rests on an uncertain basis. The question is an interesting one not only in this application, but with respect to other parts of the ordinance of 1787, and perhaps it may not be pre- sumptions to express a belief that the Supreme Court of the United States may hereafter change its attitude toward that ordinance, now that the secret influences which too long and' too powerfully swayed its judgments have lost their power.” lS(i9 Cltij of (Uiivaffo v. Mcilinn, 51 111., 2()(). Ill this case tlie City of Chicago brouglit action against a vessel owner for violation of the city ordinance regulating the time and manner of vessels in passing the swing bridges over the Chicago River. The judgment below was for the defendant, which was reversed above. In this case the court quoted the Peoria Bridge case, 38 111., 467, with approval, and said: ‘‘And remarking upon tlie provision of the ordinance of 1787, that 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 in- habitants of the Territory as to the citizens of the United States, and without any tax, impost or duty therefor, it was said there was no restriction on the power of the State, if the ordinance wms yet in force, to use the most improved artificial means of crossing those waters. The ordinance prohibits only its obstruction and the imposition of a tax or duty on its navi- gation. Nothing less than a total ohstruction by dams, or other inlpediments of that nature, would be a violation of its provisions. Navigation upon them ivoidd not then be free, for the very current itself ivould he in custody, and mankind be thereby excluded from its profitable use. That it does not mean that the river and its navigation shall be a common highway, free from all and every condition, but only that it shall be free from obstruction and free from any burden imposed in the shape of a duty or tax.” KECENT ILLINOIS CASES UPON THE ORDINANCE OF 1787. 1895 The People v. Thompson, 155 111., 451. In this case this court decided that the Act of June 15, 1893, making an apportionment of the State into Senatorial districts, was constitutional and had not disregarded the rexpiirements of the constitution then in force, on the subject of legislative ap|ior- tionment. Incidentally, tlu ])i()vision of the Ordinance of 1787 relative to proportionate representation was called to their atten- tion. The court said (pp. 471-2) : “Counsel for appellants, evidently realizing the extreme difficulty of determining, by legal interpretation or construc- tion, the precise bounds fixed to the discretionary power of the General Assembly in applying the constitutional require- ments of compactness of territory, and equality, as nearly as practicable, in population, when forming districts, while at tlie same time complying with other more definite limitations. have and (jiioted from tlie oi'dinaiu'e of 1787, passed l>y tlie Congress of t'ne Confeacration for tlie government of the Northwest Territory. Tliis ordinaru'e })rovided, among other things, that Cso soon as there shall he o,000 free male inhab- itants of full age in the district, u})OJi giving proof thereof to the (ioveinor tliey shall receive authority, witli the time and place, to elex't representatives from tlieir counties or town- shi])s to i'e])reisent them in the (Jeneral Assembly,’ and that 'the inh(il)it(mf,s of said territori/ * * * shall always he eatifled to the benefits of * * * f( proportionate repre- sentation of the people in the legislature.’ “Counsel do not seem to contend that this ordinance, even if to be treated as in force in this State, has any extra-consti- tutional force, hut refer to it as evidence of the inheritance by the |)eo])le of a State carved from that territory, of the riglit to equal representation in the Legislature as a birthright. We do not think that the existence of this right, so far as it can be ])ractically carried into effect by the instminentalities of hu- man government, imperfect at best, will be denied by any one. Jt is a right recognized and protected by the constitution to the extent thought necessary and practicable at the time of the adoption of that instrument. But if it be contended that the ordinance of 1787 has, on this subject, any force in this State, except so far as its principles are embodied in the constitu- tion, with that contention we cannot agree, but must hold the constitution — not the ordinance of 1787 — to be the supreme law by which the statute in ciuestion must be tested, it not in any wise interfering with any power delegated to the Federal government nor denied by the Federal coirstitution to the State. ’ ’ Incidentally the court refer to a number of federal cases in whicli the Ordinance of 1787 has been referred to and in various respects declared inoperative, viz. : 123 U. S., 288; 3 How., 588; 3 How., 212; 117 U. S., 151 ; 119 U. S., 544; 10 How., 82. And the opinion of Piis^xey, J., in 81 Wis., 440. Tlie only Illinois case cited on the Ordinance in 155 111., is Phoebe V. Jay, 1 B’s B., 268, the scope of which we have already seen. The federal cases cited we have elsewhere reviewed. 1897 Dixon v. The People, 168 111., 179. In that case the court held that a jiliysician regularly subiioe- naed and interrogated as an expert witness' only cannot refuse to tostily ii[)()n ilio groiiiid that no (‘oiiipeiisatioii groator than that allowed to ordinary witnes«es has })een paid or pron)is(‘d to him. In that case the court say: ‘H\)nnsel for api)ellant say, howevei*, that arti('le 2 of the Ordinance of 1787 ])rovided as follows: ‘No man shall })e de- prived of liis life, liberty or property, but by the judgment of Ills peers, or the law of the land: and should the public exigen- cies make it necessary for the common ])reservation, to take any man’s property, or to demand hks particular services, full compensation shall be made for the same.’ It is to be here noted, that, by the use of the expression, ‘to take any man’s })roperty or to demand his particular services,’ the article seems to draw a distinction between property and particular services. Therefore, if the knowledge of the expert witness is included within the meaning of particular services, it cannot be regarded as property. However this may be, the Ordinance of 1787 is not in force in the State of Illinois. In the recent case of People v. Thompson, 155 111., 451, this coiiid lield tliat the Ordinance of 1787, passed by the Congress of the Confed- eration for the government of the Northwest Territory, has no force in Illinois, except so far as its principles are embodied in the State constitution. In that case the whole subject is elab- orately discussed, and many authorities are referred to sus- taining the position there taken.” The Dixon case finally says: “The Ordinance of 1787 is not in force in the State of Illinois.” No court of fllinois had ever said it before. Mr. rrusti('e Ma- gruder, in the opinion in that case, inadvertently fell into an ina(‘- curate expression. The case in the 155th on proportional repi esentation did not say that the ordinance was not in force, but it did (piote some federal cases which stated that the ordinance had become ino})erative and inferentially seemed to a])prove them as ai)])lied to ‘'this suhjeci” of proportional representation. THE DUHATIOX OF THE OliDIXANCE. The provisions of the OiTliiiance with res[)ec‘t to tlieir duration as law divide theinselves hy tlieir own terms into two classes, viz.: 1. Provisions avowedly temporary. 2. Permanent provisions. I. Provisions avowedly temporary. Among these provisions, for example, are the following: ^‘That the said territory, for the purpose of temporary government, be one district.” (Sec. 1.) ‘‘This law relative to descents and dower shall remain in full force until altered by the Legislature of the district.” (Sec. 2.) “There shall be appointed * * * ^ Governor, whose commission shall continue in force for the term of three years, unless sooner revoked by Congress.” (Sec. 3.) “There shall be appointed * * * a Secretary, whose commission shall continue in force for four years, unless sooner revoked.” (Sec. 4.) “A Governor and Judges * * * shall adopt * * * such laws of the original States * * * as may be neces- sary, * * * which laws shall be in force in the district until the organization of the General Assembly therein, unless disapproved of by Congress.” (Sec. 5.) “9. So soon as there shall be five thousand free male in- habitants, * * * they shall receive authority, with the time and place, to elect Kepresentatives, * * * provided that for every five hundred free male inhabitants there shall be one Kepresentative, and so on, progressively * * * un- til the number of Representatives shall amount to twenty-five, after which the number and proportion of Representatives shall he regulated hy the Legislature.’’ IT. PERMANENT PROVISIONS. Under this head fall the provisions of the articles of compact, so far as they have not been altered by common consent. They are introduced as follows : “It is hereby ordained and declared by the authority afore- said that the following articles shall be considered as articles 79:\ of ('(HupiK'i ):('l\v(‘('n lli(‘ original Stnt(‘s aial Uk; i)('C)j)l(^ and Slates in the said d\nTit()iy, and r()r(‘vei- remain nnalt(‘rat)le, unless by ('onnnoii eonsent, to-wil: “Article 1. Freodoiii of relif^ious worship. ‘‘Article 2. Bill of rights. “Articled. Eeligion, morality and knowledge heing neces- sary to good government and the happiness of mankind, sclioels and the means of education shall forever he encouraged. * * * “Article 4 , * * * TPe navigation clause heretofore quoted. “Article 5. Subdivision into five states. “Article 6 . There vshall be neither slavery nor involuntary servitude in the said Territory otherwise than in the punish- ment of crimes whereof the party shall have been duly con- victed; provided always that fugitives may be lawfully re- claimed. ’ ’ In the Thompson case, 155 Ilk, the court had before it the tem- X^orary x:)rovision for x:)roportional rex')resentation which ax)plied until the Legislature reached the number of twenty-five, after which the number and proportion of the Representatives shall be regulated by the Legislature^^ The court most correctly held that this provision did not control and invalidate the Legislative apportionment of 1893, wdien the Legislature numbered 150 in the lower house and 51 in the upper house. The court was not called u])on to go beyond tliis and did not go beyond it, although it quoted arguendo some federal deci- sions which said that the ordinance was inoperative. In the case of Dixon, the ])hysi(*ian, in 108 Ilk, the court had to deal Avith the question whether the new hill of rights in the constitution had taken the i)lace of the old bill of rights. The old bill of rights had been “abrogated by (*onmion consent,” the new bill of rights taking its place. They are almost identical in word- ing, and are identical in meaning, and the i^rinciple truly apjilied that the constitution on this point was a re-enactment of the ordi- nance. But Mr. Justice Magruder inadvertently used the explicit negative statement “that the Ordinance of 1787 is not in force in the State of Illinois.” His only Illinois authority, the Jay case (Beecher’s Breese, p. 272) says:- — “The Ordinance, hoAvever, is, no doubt, still binding upon the people of this State, unless it has been abrogated by com- 71)4 moil (‘oiisonl. ‘By common consent,’ I understand tlie United States and the people of this State, and tvhcnaver they shall ayree that the whole or any pari of the Ordinance of 1787 sliall be re- pealed, it H'ill, so far as affects this State, become a dead letter.” And tlie court lield that the approval by (vongress of the Constitu- tion of 1818 embodying Article b. Section 8 thereof, concerning negroes, mulattoes and ])ersons bound to service, constituted an abrogation tiy common consent of the slavery clause for Illinois. That is the only clause wliicli liad lieen abrogated by common con- sent. It vras a sorry day for the history of Illinois when that common consent as to that particular provision wms reached; but never un- til 1897 has it heeii said liy an Illinois court tliat tlie rest of the Ordinance vnis not in force. As we have seen in The People v. St. Louis, 5 Gihn., 951, the State of Illinois in its sovereign capacity, asserted, relied on and enforced the Ordinance of 1787 as guaranteed to the State a free right of navigation in even the shallowest arm of the Mississippi, and it enjoined Ihe great City of St. Louis from attempting to in- terfere with such narrow channel. FEDERAL CASES ON THE ORDINANCE, OF 1787. 1838 Spooner v. McConnell, 1 McLean, 337 (22 Fed. Cases No. 13245). That was a bill for an injunction to enjoin the Canal Commis- sioners of the State of Ohio from damming the Maumee Eiver above its rapids for the purpose of supplying the canal with water. The showing was held insufficient for a preliminary injunction and the cause was continued. The case occupies 47 pages of Mc- Lean’s Reports. It specifically holds that some parts of the Ordi- nance were designed temporarily to regulate the government of the Territory, and these were necessarily abolished on the change from the Territorial to State government; that other parts were de- signed to he permanent and were sanctiond by compact and were unalterable except by common consent; that some of those being subsequently guaranteed by tlie Federal Constitution may be con- sidered as superseded by that Federal Constitution. This would include the ])rovisions embracing a bill of rights; that any ])rovi- 71)5 sioiis ol* till' OrdinniK'o rei)ni»n;iiit to the Constilulioii ot Ohio rtiny 1)0 (‘oiisidorod as anindlod, siiu'o the (5)nstitnli()ii of Oliio was sano- tionod by (\)ngTess. “ But that provision of the coiiipaet wildcli declared that the nav- igable waters falling into the St. Lawrence and the Mississipj)i and the carrying places between them shall be common highways and forever free &c., iras not proposed to he modified.” (1 McLean, pp. 344-5.) “It is a well established princi])le that no political change in a government annuls a compact made with another sover- eign power or with individuals. The compact is protected by that sacred regard for x^lighted faith, which should be cher- ished alike by individuals and organized coanmunities. A dis- regard of this great principle wtould reject ail the rights and advantages of civilization, and throw us hack on the age of vandalism. “This comi>act was formed between }3olitical communities and the future inhabitants of a rising territory, and the States which should be formed within it. And all who became in- hal)itants of the Territory made themselves parties to the comi)act. And this comx)act so formed could only he rescinded by the common consent of those who were ])arties to it.” *'# * * # * * * “But it is earnestly contended that the rights asserted by the complainant are wholly incompatible with the sovereignty of the State, and with the provision that the State was admit- ted on an ecpial footing with the original States. Does this provision mean that the new State shall exercise the same powers and in the same modes as are (‘xercised by any other State? “Now, this cannot be the true construction of the ])rovision, for there cannot be found, ])erhaps, any two States in the Union whose Legislative, Judicial and Executive jiowers are in every res])ect alike. If the argument be sound, that there is no equal footing short of exact eciuality in this respect, then the States are not ecpial. But if the meaning be that the peo- ple of the new State, exercising the sovereign powers whi(hi belong to the x)eo])le of any other State, shall he admitted into the Union, subject to such i)rovisions in their fundamental law as they shall have sanctioned; within the I'estrictions of the Eederal constitution, then the States are e(iual. lApial in rank, e(|ual in tlieir }) 0 wers of sovereignty, and only diifer in their restrictions, which, in the exercise of those ])owers, they may have voluntarily imx>osed ux)on themselves. Thus a State may, in her constitution, prohi})it the Legislature from incoi*- ])orating banks, or, in fact, from pasising any act of incoi*pora- lion; and yet tliis State would })e admitted into t'ne Union on an e(iual footing with tlie other States.” ‘^The same powers were exercised in forming a constitu- tion, but in the distribution of the powers of the State govern- ment they w^ere not given to the same extent, nor were they to ])e exercised in the same manner. But tliis produces no in- ecpiality. The States are equal, inasmucli as each has, by its own voluntary will, established its own government, and has the power to alter it. This is the principle on which the State governments are established, and consequently they all stand upon an equal footing. They have the same basis ; have been formed according to the will of the people, and may be changed at their discretion.” (1 McLean, pp. 344, 348, 349.) ‘‘If, then, there is nothing in the constitution of the State which is repugnant to the compact in the ordinance in rela- tion to navigable waters, and the parties to the compact have in no form annulled it, and it is not inconsistent with that equal- ity which the State of Ohio claims with the original States, it follows that this compact is in full force, and is a subject of judicial cognizance.” (1 McLean, p. 349.) * * # * * * * “The Supreme court of this State in the case of Williams & Hogg V. Zanesville Canal and Manufacturing Company, 5 Ham., 410, had occasion to examine the point now under con- sideration. “That was an action of trespass, in wdiich the plaintiffs claimed damages for the loss of a boat and cargo in crossing a dam over the Muskingum Eiver, which the Legislature had authorized the defendants to construct, but they were required to make and keep in repair a lock in the dam of certain dimen- sions, which wmuld afford a safe passage for boats. This lock had fallen out of repair, in consequence of which the loss was suffered of which the plaintiffs complained. “In their opinion the court say, ‘To the validity of certain statutes as affording a protection to the defendants, the plain- tiffs object on the ground that they interfere with the ordi- nance, '&c.’ This portion of the ordinance of 1787, the court say, is as much obligatory upon the State of Ohio as our own constitution. In truth, it is more so ; for the constitution may be altered by the people of the State, while this cannot be al- tered without the assent both of the people of this State and of the United States, ihrougb their representatives. It is an article of compact, and until we assume the principle that the sovereign power of the State is not bound by compact, this clause must be considered obligatory. Certain ‘navigable rivers’ in Ohio are ‘common highways.’ Of this character is the Muskingum Eiver. Every citizen of the United States has a perfect right to its free navigation. A right derived, not from the Legislature of Ohio, but from a superior source. 797 W'itli this riglit tlio Log’islature (‘aiiiiot interforo. In ollinr woi'ds, thoy (‘ainiot hy any law wlii(‘li they may pass inijxsh* or ohstrnct tlio navigation of that river. Tliat which they cannot do directly they cannot do indirectly. If they have not them- selves the power to obstruct or impede tlie navigation, they cannot confer this favor upon an individual or a corporation.” (1 ^[cLean, p. 351.) #**##** “The ])i*ovisions of the ordinance had reference to the navi- ga])le rivers and the carrying places, as they tlien were. And in tliat State they were to remain free, without tax, &c. But tliis does not prevent the Legislature from improving the nav- igation of rivers and the carrying places between them. Such improvements can in no sense be considered as repugnant to the ordinance, but in promotion of its great object. And it would seem to be no violation of the compact if the Legisla- ture should exact a toll, not for the navigation of the rivers in their natural state, but for the increased facilities established by the funds of the State.” (1 McLean, p. 352.) ******* “Navigable rivers and the carrying places between them are placed on the same footing by the compact ; and the only differ- ence between them is, the rivers have estahlished channels, whilst the carrying places are unmarked. They are both in their natural condition, and the State, it would seem, is no more prohibited from improving the navigation of tlie rivers than the carrying places between them. And if a toll may l)e charged, for the increased facilities in the one case, for the same reason it may be in the other. “We, thei*efore, can entertain no doubt that the Legislature may imi)rove, at their discretion, the navigable rivers of the State, and authorize the construction of any works on them which shall not materially obstruct their navigableness. They may huild a dam over the Maumee, if it shall he so constructed with a lock or otherwise, as not materially to obstruct its nav- igation.” (1 McLean, 353.) 1843 Palmer v. Commissioners of CuyaUofja County, 3 McLean, 226 (18 Fed. Cases, 10688). In this case the court adhered to the decisions in 1 McLean ami' held that the construction of a draw-bridge over the Cuyahoga Kiver was not a violation of the ordinance. 3845 Permoli v. First Municipality , 3 How., 589, holds by dictum Ordinance of 1787 inoiierative in conseijuence of the ad- mission of new State on ecjual footing with original States. Note. — This decision related to territory outside of the original 798 Norlliwest Territory, viz., Louisiana, and was ])y its terms not ap- 1)1 ied to the Nortliwest Territory or States carved therefrom. Tlie (piestion i*aised tliere was whetlier an ordinance of tiie City of New Orleans, enacted Septemhei* 26, 1827, concerning public liealth, and forbidding the ex})osure of dead bodies in a public church, violated the religious liberty of people who sought to con- duct ])ubli(‘ funerals, and in so doing carry bodies into the churches. The court declined to take jurisdiction. Incidentally the court said : “The princi])al stress of the argument for the plaintiff in error ])roceeded on the ordinance of 1787. The Act of 1805, C. 88, having provided that from and after the establish- ment of the government of the Orleans Territory, tlie inhab- itants of the same should be entitled to enjoy all the rights, privileges and advantages secured by said ordinance, and then enjoyed by the people of the Mississippi Territory. It was also made the frame of government, with modifications. “In the ordinance there are terms of compact declared to be thereby established, between the original States and the peo- ple of the States afterwards to be formed northwest of the Ohio, unalterable unless by common consent— one of which stipulations is that ^no person demeaning himself in a peace- able manner shall ever be molested on account of his mode of worship, or religious sentiments, in the said Territory.’ For this provision is claimed the sanction of an unalterable law of Congress; and it is insisted the city ordinances above have violated it; what the force of the ordinance is north of the Ohio, we do not pretend to say, as it is unnecessary for the purposes of this case. But as regards the State of LoU’ isiana, it had no further force, after the adoption of the State constitution, than other acts of Congress organizing, in part, the Territorial government of Orleans, and standing in con- nection with the ordinance of 1787. So far as they conferred political rights, and secured civil and religious liberties (which are political rights), the laws of Congress were all superseded by the State constitution; nor is any part of them in force, unless they were adopted by the constitution of Louisiana, as laws of the State. It is not possible to maintain that the United States hold in trust, by force of the ordinance, for the people of Louisiana, all the great elemental principles, or any one of them, contained in the ordinance, and secured to the people of the Orleans Territory, during its existence. It follows, no repugnance could arise between the ordinance of 1787 and an act of the Legislature of Louisiana, or a city reg- ulation founded on such act; and therefore this court lias no jurisdiction on the last ground assumed, more than on the precedino’ ones. In oiir jiid^nient, the (luestioii present(Ml })y the reeord is exclusively of* State co^Tiizan(*.e, and e(iually so in the old States and tlie new ones; and that the writ of (otoi* must he dismissed.” (.‘I ilow., p. *()!().) Judge McLean, who had rendered the two previous de(‘isions, was a member of tlie court at the time. No dissent is shown. 1845 Pollard, Sc., v. Hagan, 3 How., 212, construes the navigation clause of tlie enabling act for Alabama and holds it valid as a regulation of commerce. The case was ejectment to recover shore property below high- water mark in the Mobile River. The court, in effect, held the following propositions : The stipulation contained in the 6th section of the Act of Congress, passed on the 2d of March, 1819, for the admission of the State of Alabama into the Union, viz: — ‘That all the navigable waters within the said State should forever remain ]:)ublic highways, and free to the citizens of that State, and the ITnited States, without any tax, duty, or impost or toll there- for, ini])osed by that State,’ conveys no more power over the navigable waters of Alabama, to the Government of the United States, than it ])ossesses over the navigable waters of other States under the provisions of tlie constitution.” And it leaves as much right in the State of Alahama over them as the original States ])ossess over navigable waters within their respective limits. The shore of navigable waters, and the soils under them, were not granted hy the constitution to the United States, but were reserved to the States resjiectively ; and the new States have the same rights, sovereignty and jurisdiction over this subject as the original States.” The United States never held any muniUpal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama, or any of the new States, were formed, except for temporary ])urposes, and to execute the trusts created by the acts of the Virginia and Georgia Legislatures, and the deeds of cession executed by them to the United States, and the trust created by the treaty of the 30th April, 1803, with the Frencli Repiihlic ceding Louisiana. U])on the admission of Alabrma into the Union, the right of eminent domain, which had been temporarily held by the United States, [lassed to the State. Nothing remained in the United States but the ])ublic lands. (3 How., 212.) Respecting the ordinance of 1787 the court said: “The declaration, therefore, contained in the compact en~ soo 1(‘r(Ml into tliein w1i(‘ti Al;il)aina was admitted into the Union, ‘that all naviga])le watei*s within the said State sliall iorever remain i)nl)lie higliways, free to the eitizens of said State, and of the United States, without any tax, duty, impost, or toll therefor, imposed by the said State,’ would he void if in(‘oiisistent witli the eonstitution of the United States. But is tliis ])rovisioTi repugnant to the eonstitution? By tlie 8th sec'tion of tlie 1st article of the eonstitution, power is granted to Oongresis ‘to regulate eoinmerce witli foreign nations, and among tiie several States.’ If, in the exercise of this ])ower, Uongress can impose the same restrictions u])on tlie original States, in relation to their navigable waters, as are imposed, by this article of the compact, on the State of Alabama, then this article is a mere regulation of commerce among the sev- eral States, according to the constitution, and, therefore, as binding on the other States as Alabama.” “Tn the case of Glhhons v. Ogden, 9 Wheat., 196, after ex- amining the preliminary questions respecting the regulation of commerce with foreign nations, and among the States, as connected with the subject matter there in controversy. Chief Justice Marshall said: ‘M^e are now arrived at the inquiry, AVliat is this power? It is the power to regulate, that is, to ]:)rescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution.’ ” Here the power exercised by Congress in 1789 in continuing the navigation clause of the Ordinance of 1789 in etfect, and exercised by the Act of March 3, 1817, admitting Alabama into the Union, wdiich extended certain poriions of the Ordinance of 1787 to the Constitution of the new State, one of which was the navigation clause, is held by the court to be the power to regulate interstate commerce. The Act of 1789 co)itinuing the Ordinance of 1787 in effect ivas the first act to regulate interstate commerce. It is as much lau' as the Interstate Commerce Act of 1887. 1866 Bates v. Brown, 72 IT. S. (5 AValh), 710. The U. S. Su])reme Court here held that the rule of common law commonly called the rule of shifting inheritance, is not in force in Illinois, and the reason assigned is that the Ordinance of 1787 had provided a different rule. The court, in its preliminary statement of the case, said: ‘‘To understand the matter fully it may be well to state that SOI ilio C\)iii>*ressional ()r(liiiaii('(‘ of 1787 foi- tlio <>()verimi(‘nt of tlic Nortlnvevsterii Territory, of wliich Illinois was ori^'inally a part, created a court which it declared should have VK)mrnon law ,jurisdi(‘tion,’ and the Ordinaiu'e guaranteed also to the people of the territory ^judicial proceedings, according to the course of the coniinon law.’ This Ordinance declared that the estates of persons dving intestate” (here (pioting its y)rovi- sions, which provide for distribution in equal shares aniong all children, with no distinction between wdiole and half blood). ‘On 1819, after Illinois had become a State, a statute adopted ‘the common law of England’ iu general terms; and in 1845, another statute declared that the common law of England, ‘ so far as the same is applicable and of a general nature, shall be the rule of decision, and shall be considered as in full force until repealed by legislative authority.’ ” The court then quotes the Illinois Statute of 1829, Section 43, on Intestate Descent of Intestate Estates and add (the opinion being by S WAYNE, J.) : “It is said the Ordinance of 1787, which embraced the terri- tory now constituting the State of Illinois, and the acts of the legislature of that State of the 4th of February, 1819, and of the 3rd of March, 1845, are to be considered in this connec- tion. “The Ordinance created a court which it declared ‘shall have common law jurisdiction,’ and it guaranteed to the people of the territory ‘judicial proceedings according to the course of the comomn law.’ There is no allusion in it to the common law but these. The two acts of the Ijegislature contain sub- stantially the same provisions.” Then, after summarizing the principles of descent accordiiig to the common law, the court say : “The dominant principles in the British constitution have always been monarchical and aristocratic. These canons tend to prevent the diffusion of landed property, to promote its accumulation in the hands of a few. They thus conserve the splendor of the nobility and the influence of the leading fam- ilies, and rank and wealth ai'e the bulwarks of the throne.” * * * “Before the Kevolution, some of the colonies had passed laws regulating the des<‘ent of real property upon julnciples essentially different from those of the common law. In most of them the common law subsisted only after the close of the Bevolution and the retuiii of ])eace. It ])revailed in Virginia until the act of her Legislature of 1785 took effect, and it was, perhaps, the law u])on this subject in ‘the Northwestern Ter- ritory,’ at the time of its cession in 1784 by Virginia to the 802 Ijiiitod States. AVitli tlie close of the I'evolution came a new state of things. There was no monai'cli and no privileged (‘lass. The equality of the legal rights of every citizen was a inaxini universally recognized and acted upon as funda- mental.” * ***#%=* ^^The Ordinaiu'e ot 1787 ('ontains a ('om])lete series of pro- visions u})on the sulqect. They are the type and reflex of the a(dion of many of the states at that time.” * * * ‘'We find liere not a trace of the common law. These pro- visions are diametrically o])pos'ed to all its leading maxims. AVe cannot infer from their silence that anything not ex- pressed was intended to be adopted from that source by implication or construction.” There had been no legislation by the State of Illinois on the sub- ject of descent from the time of its admission in 1818 until the enactment of the Statute of 1829. But the case finally holds that the Ordinance of 1787 remained in force on the subject until the Legislation of 1829, although the estate in question was not ac- quired until 1830 and did not become intestate until 1832. 1850 Strader v. Graham, 51 U. S. (10 How.), 82. Error to Kentucky. Bill against owner of steamboat for aiding the escape of slaves, and for lien on boat therefor. Decree upholding the lien in Kentucky. AVrit of error dismissed by U. S. Court for want of jurisdiction. The plaintiff in error claimed, by virtue of the slavery provision of the Ordinance of 1787, that the decree was erroneous. Taney, C. J., said (p. *94) : “But it seems to be supposed in the argument, that the law of Ohio upon this subject has some peculiar force by virtue of the Ordinance of 1787, for the government of the Northwestern Territory, Ohio being one of the States carved out of it.” # ^ ^ ^ “The argnment assumes that the six articles wliicli that Ordinance declares to be perpetual are still in force in the States since formed within the territory, and admitted into the Union. “If this proposition could be maintained, it would not alter the question. For the regulations of Congress, under the old Confederation or the present constitution, for the government of a particular territory, could have no force beyond its limits. 803 It (*ertaiiily could not restrict the power ot tlie States witliin their respective territories; nor in any manner interfere with their laws and institutions; nor g-ive this (‘ourt any (control over tlieiu. The Ordinance in (|uestion, if still in force, could liave no more operation than the laws of Ohio in the State of Kentucky, and could not influence the decision upon the rights of the master or the slaves in that State, nor give this court jurisdiction upon the subject. ‘‘But it has been settled by judicial decision in this court, that this Ordinance is not in force. “The case of Permoli v. The First Municipality, 3 How., 589, depended upon the same principles with the case before us.’^ # # ^ ^ “In the case above mentioned, Permoli claimed the pro- tection of the clause in one of the six articles which provides for the freedom of religion, alleging that it had been violated by the First Municipality. And he brought the question be- fore this court, upon the ground that it had jurisdiction under the Ordinance. But the court held that the Ordinance ceased to be in force when Louisiana became a State, and dismissed the case for want of jurisdiction. This opinion is, indeed, confined to the territory in which the case arose. But it is evident that the Odinance cannot be in force in the States formed in the Northwestern Territory, and at the same time not in force in the States formed in the Southwestern Terri- tory, to which it was extended by the present government. For the Ordinances and pledges of the Congress of the old Confederation cannot be more enduring and obligatory than those of the new government; nor can there be any reason for giving a different interpretation to the same words used in similar instruments, because the one is by the old Confed- eration and the other by the present Government. And when it is decided that this Ordinance is not in force in Louisiana, it follows that it cannot be in force in Ohio. “But the whole question upon the Ordinance of 1787, and the acts of Congress extending it to other territory afterwards acquired, was carefully considered in Pollard v. Hagan, 3 Howe, 212. The subject is fully examined in the opinion pro- nounced in that case, with which we concur; and it is sufificieut now to refer to the reasoning and jirinciples by which that judgment is maintained, without entering again ujion a full examination of the (piesfion. “Indeed, it is impossible to look at the six articles which are supposed, in the argument, to be still in force, without seeing at once that many of the provisions contained in them are inconsistent with the ])resent constitution. And if they could he regarded as yet in operation in the States formed within the limits of the Northwestern Territory, it would l)hu‘e tlieiii in an inferior eondition as compared witli tlie other States, and subject tlieir domestic; institutions and muni- cipal regulations to the constant supervision and control of this court. The constitution was, in the language of the Ordi- nance, ^adofpted ])y common consent,’ and the ])eople of the territories must necessarily l)e regarded as parties to it, and hound ])y it, and entitled to its benefits, as well as the people of the then existing States. It became the supreme law thi'ougliout the United States. And so far as any obligations of good faith had been previously incurred by the Ordinance, they were faithfully carried into execution by the power and authority of the new government. ‘‘In fact, when the constitution was adopted, the settlement of that vast territory was hardly begun; and the joeople who filled it, and formed the great and populous States that now cover it, became inhabitants of the territory after the consti- tution was adopted; and migrated upon the faith that its ])rotection and benefits would be extended to them, and that they would in due time, according to its provisions and spirit, be admitted into the Union upon an equal footing with the old States. For the new government secured to them all the public rights of navigation and commerce which the Ordi- nance did or could provide for; and moreover, extended to them when they should become States much greater power over their municipal regulations and domestic concerns than the Confederation had agreed to concede. The six articles, said to be perpetual as a compact, are not made a part of the neve constitution. They certainly are not superior and para- mount to the constitution, and cannot confer power and juris- diction upon this court. The whole judicial authority of the courts of the United States is derived from the Constitution itself, and the laws made under it. ‘Ut is undoubtedly true, that most of the material pro- visions and principles of these six articles, not inconsistent with the constitution of the United States, have been the established law within this territory ever since the Ordinance was passed; and hence the Ordinance itself is sometimes spoken of as still in force. But these provisions owed their legal validity and force, after the constitution was adopted and while the territorial government continued, to the Act of Congress of August 7, 1789, which adopted and continued the Ordinance of 1787, and carried its provisions into execu- tion, with some modifications, which were necessary to adapt its form of government to the new constitution. And in the States since formed in the territory, these provisions, so far as they have been preserved, owe their validity and authority to the constitution of the United States, and the constitutions and laws of the respective States, and not to the authority of llio Ordinance of the old Confederation. As we have already said, it ceased to be in force ui)on the adoption of the con- stitution, and cannot now be tlie sonr(‘e of jurisdiction of any description in tliis court. ‘‘in every view of tlie subject, tlierefore, tliis court Inis no jurisdiction of the case, and tlie writ of error must on tliat ground be dismissed.” The case belongs to the same unfortunate category as the Dred Scott case, 19 Howard, 393, decided six years later (March 6, 1857), loaded with the same kind of obiter dicta as xiervade the Dred Scotf case. Mr. Justice McLean in his separate opinion pointed this out, as follows: “I agree that there is no jurisdiction in this case, and that it must be dismissed.” * ^5= “The provision of the Ordinance in regard to slavery was incorporated into the constitution of Ohio, which received the sanction of Congress when the State was admitted into the Union. The constitution of the State, having thus re- . ceived the consent of the original parties to the compact, must be considered, in regard to the prohibition of slavery, as sub- stituted for the Ordinance, and conseciuently all questions of freedom must arise under the constitution, and not under the Ordinance. “This, in my judgment, decides the question of jurisdiction, which is the only question liefore us. And anything that is said in the opinion of the court, in relation to the Ordinance, beyond this, is not in the case, and is, consequently, extr^i- judicial.” Mr. Justice Catron pointed out the same thing, and in particular that the obiter dictum of (diief Justice Taney should not abrogate the navigation clause of the Ordinance. He said : “1. The sixth article declares, that slavery shall be pro- hibited. “2. And that absconding slaves there found shall be sur- rendered to their owners. “The constitution of Ohio incorporates the first part of the sixth article, but leaves out the second part. The State constitution having received the sanction of Congress, the alteration was made by common consent, as this was the mode of consent contemplated by the compact; that is to say, by the States in Congress assembled, whether under the Con- federation or present Constitution. This being an ‘engage- ment entered into’ ])efore the adoption of the Constitution, was 80 G equally binding on tlie one Congress as the other, according to tlie sixth article of the new constitution; and the new Con- gress, e(|ually with tlie former one, had power to consent to alterations. The power to alter necessarily involves the power to annul, or to suspend; and when the 'State constitution of Ohio was assented to by Congress, the articles stood sus- pended, or abolished, as an engagement among the states, and can now only be recognized as part of the organic State law. And as this law is drawn in question here, no jurisdiction exists to examine the State decision. ^‘But in regard to parts of the other five articles, I am nnwilling to express any opinion, as no part of either is in any degree involved in this controversy. ‘‘The fourth article secured the free navigation of the waters leading into the rivers Mississippi and St. Lawrence, and the carrying places between them, as common highways ; and exempted them from tax, impost or duty. The mouths of the two great rivers were in possession of foreign powers, and closed to our commerce, at the date of the Ordinance and constitntion ; and therefore it was more necessary that the tributaries should be always open, and the carrying places free, so that the Ohio and St. Lawrence could be reached from the great lakes, and back and forth either way. Some of these tributary rivers and the carrying places, it was known, would fall into a single new State, as contemplated by the Ordinance. This is true of every carrying place, and is equally true as respects most of the rivers leading to the carrying places; and as Congress had only power given by the new constitu- tion ‘to regulate commerce among the States’ it is a question now unsettled whether such inland rivers and carrying places could be regulated, where the navigation and carrying places began and ended in a single State.” “For thirty years, the state courts within the territory ceded by Virginia have held this part of the fourth article to he in force, omcI binding on them respectively ; and I feel imivilling to disturb this udiolesome course of decision, which is so conservative to the rights of others, in a case where the fourth article is in no luise involved, and when our opinion might be disregarded by the State courts as obiter, avd a dictum uncalled for. When the question arises here on the fourth article, it is desired by me that no such embarrass- ment should be imposed on this court as necessarily must be by now passing judgment on the force of the fourth article, and pronouncing that it stand superseded and annulled.” The case is decisive only on the question of jurisdiction before it, and all else is, as Mr. Justice MeLean said, ‘^extra-judicial,’’ and is, as Mr. Justice Catron said “obiter, and a dictum uncalled for.” 807 The })l'ain ti’uth is that (hiief flusti(*e Tani-:y liad alrea(Jy entered upon tlie work ot* fortifying the cause of slavery by judicial dicta. The opinion of the American Bar on tlie subject is summed up in Carson’s History of the 'Supreme Court of the United States, 7 >p. 370-371, thus: ‘‘AVithout entering into teclinical niceties it is perliaps sufficient to say that the general judgment of the profession, entirely irrespective of the political questions involved, is to the effect that the court after holding, upon consideration of the plea in abatement, that Dred Scott was not a citizen of the United States, and that therefore the Circuit Court had no jurisdiction, ought to have dismissed the case, without enter- ing upon the consideration of the second question involved, and that in doing so they transcended the proper bounds of judicial authority, and indulged in mere obiter dicta of no legal validity or conclusiveness.” The court itself recognized this in Strader v. Gradiam, 18 How., G02. There the successful party moved for a judgment for costs and the court decided that where, as there, a case is dismissed for want of jurisdiction, this court cannot give a judgment for costs. They could not give a judgment for costs wliere they had no jurisdiction to give a judgment at all, and they could not give a judgment annulling the Ordinance of 1787 without any jurisdiction to give a judgment at all. Their only jui*isdiction was jurisdiction to dismiss. It will be noticed that Taney, (3 3., overstates tlie scope of the Permoli case, 3 How., 581). The thing decided in the Peianoli case was that ^SSo fai* as they (a('ts of Congress) ('onferred ])olitical rights and secured civil and religious liberties, which are ])olitical rights, the laws of (h)ngress were all superseded by the State constitution. * * * It is not ])ossible to maintain that the United States, hold in trust t)y force of ilte Ordinance for the ])eople of Ijouisiana atl tlie great cleniental principles or any one of them contained in the OrdinaiK'e and secured to the ])eople of the Orleans tcnatory during its existence.” The Permoli case was confined to this proposition. It had nothing to do with the other portions of the Ordinance. Again, Chief Justice Taney erred in his statement of Pollard v. Hagan, which, as we have seen, did deal with the navigation clause, 808 Mild tlio statutes I'e-enactting it as \uilid reflations of inter-state eonnnei'ee. Tlie i-easoning of Cliief Justice Taney, even if it were correct, and even if it Avere the ratio decidendi and not tlie oibter dictum wliicli it is, Avould be good only as to the extra-territorial effect of the sldveri) clause of tlie Ordinance in Kentucky wliere obviously it had no effect; and would leave the navigation clause unatfected. The coininents of AmiAiixM Ltmcolx upon tlie Dred Scott de- cision apply with e<|iial force (the names being changed) to the dictum of Cliief Justice Taney upon the Ordinance of 1787. Mi. Lincot-n said : ^^What are the uses of decisions of courts? They have two uses. As relates to property they have two uses. First — they decide upon the question before the court. They decide in this case that Dred Scott is a slave. Nobody resists that. ‘‘Not only that, but theA say to everybody else that persons standing just as Dred Scott stands are as he is. That is, they say that when a question comes up upon another person, it will be so decided again, unless the court decides in another way, unless the court overrides its decision. “Well, we mean to do what we can to have the court de- cide the other way. That is one thing we mean to try to do.” 1 Lincoln’s Complete Works, p. 255. “There is no escape from this conclusion but in one way, and that is to deny that the Supreme Court, in the Dred Scott case, properly applies this constitutional guaranty of prop- ertx. ” - ^ Ibid, 417. “That burlesque upon judicial decisions, and slander and profanation upon the honored names and sacred history of Kepublican America, must be OAmrruled and expunged from the books of authoriW.” Ibid, 427. “We propose so resisting it as to have it reAmrsed if we cau, and a new judicial rule established upon this subject.” Ibid, 463. “I belieAm the decision was imporperly made, and I go for reAmrsing it. ’ ’ Ibid, 512. What was it that had aroused the hostility of the southern states- men and jurists to the Ordinance of 1787? Doubtless it resulted 809 from Mr. Webster first sipoooli on Foote’s resolution, (Jelivered in the U. S. Senate January 20, 1830. Mi*. Webster said : ‘‘At the foundation of the constitution of tliese new North- western States lies the celebrated Ordinance of 1787. We are accustomed. Sir, to praise the law-givers of anticiuity ; we help to perpetuate the fame^ of Solon and Lyciirgus; but I doubt whether one single law of any law-giver, ancient or modern, has-produced effects of more distinct, marked, and lasting character than the Ordinance of 1787. That instru- ment was drawn by Nathan Dane, then and now a citizen of ^Massachusetts. It was adopted, as I think I have understood, without the slightest alteration ; and certainly it has happened to few men to be the authors of a political raeasure of more large and enduring consequence. It fixed forever the char- acter of the population in the vast regions northwest of the Ohio, by excluding from them involuntary servitude. It im- jiressed on the soil itself, while it was yet a wilderness, an incapacity to sustain any other than free men. It laid the in- terdict against personal servitude, in original compact, not only deeper than all local law, but deeper, also, than all local constitutions. Under the circumstances then existing, I look upon the original and seasonable provision as a real good at- tained. Tv^e see its consequences at this moment, and we shall never cease to see them, perhaps, while the Ohio shall flow.” 3 Webster’s Works (Little & Brown, 1851), pp. 263-4. This was the speech which called out the addresses of Benton and Hayne. Mr. Webster repeated and amplified this statement in the reply to Hayne. Bud, 277, 278, 282, 283. As we have seen elsewhere, Mr. Lincoln adhered to these views, and insisted upon the permanent validity of the Ordinance of 1787. 1853 Jolly, et al v. Terre Haute Draiv-Bridye Company, 6 Mc- Lean, 238, per Leavitt District Judge. The court there said: “The Constitution of the United States contains an explicit grant of power to Congress, to regulate (‘ommerce among the several States. Under this grant, there can be no question of the competency of Congress to exercise jurisdiction over all the navigable streams, to the extent that may be necessary for the encouragement and protection of commerce between two or more States.” * * * * “There is another ground on which the right of every citi- 1 810 zeii oi* the United States to the free and unobstructed naviga- tion of the Wabasli river, may be confidently asserted. The State of Indiana is one of the States carved out of the North- Avestern Territory, and therefore subject to the operation of tliat article of the compact contained in the Ordinance of 1787, Avhich declares that Uhe navigable waters leading to the Mississippi and the St. Lawrence, and the carrying places between the same, shall be common highways,’ &c. While it is admitted that some of the articles of compact in that Ordi- nance have been superseded by the admission of the States within the North Western Territory into the Federal Union, it has been held by repeated judicial decisions, that the solemn guaranty referred to is still in full force, and is a perpetual inhibition to such states from authorizing any impediments or obstructions to the free navigation of the water-courses within its scope.” Spooner v. McConnell, et al, 1 McLean, 337 ; Palmer v. Commissioners of Cuyahoga County, 3 McLean, 226 ; Hogg y. Zanesville Man. Co., 5 Ohio E., 416. ‘‘But in maintaining the paramount jurisdiction of the national government over navigable streams, and the opera- tive force of the guaranty in the Ordinance of ’87 in regard to them, it does not follow that the States are deprived of all power of legislation. Judge McLean, in the case above cited” from the third volume of his Eeports, says: ‘A State, by virtue of its sovereignty, may exercise certain rights over its navigable waters, subject, however, to the paramount power of Congress to regulate commerce among the States.’ This prin- ciple is distinctly recognized in all the cases referred to whether arising under the commercial power of the general government, or the Ordinance of ’87. It has never been claimed that the States do not rightfully possess jurisdiction upon and over the navigable Avater-courses, within their limits. Such a claim is clearly in derogation of the sovereignty of the States, and therefore, wholly inadmissible. But, while the right of the States is thus conceded, it is well settled that, in the exercise of their jurisdiction, they shall not infringe on that granted to the national government by the Constitution of the United 'States ; and that in reference to the States formed from the Nortli Western Territory, they cannot disre- • gard the provision of the ordinance referred to.” •854 Columhus Insurance Co. v. Curtenius, 6 McLean, 209. ^^By the Ordinance for the gOAmrnment of the territory northwest of the river Ohio, of 1787, it was provided (article 4) that the navigable waters leading into the Mississippi and St. Lawrence should be common highways, and forever free to all the citizens of the United States. 'Mt is said that this proAusion of the Ordinance is not in force. Tliis seems to be the doc^trine now established by tli(i Supreme Court of the United States, contrary to what has been the general understanding for many years, in the States carved out of tliat territory.” Pernioli v. Tlie First Munici- pality, 3 Howard, 589; Pollard v. Hagan, 3 Howard, 212; Strader v. Graham, 10 Howard, 82. ‘Ht was never doubted but that any provisions of the Ordi- nance which were contrary to the Constitution of the United States, and the laws passed in pursuance thereof, or to the Constitutions of the States formed out of that territory were abrogated, because the ‘common consent’ mentioned in the Ordinance was then presumed. But it seems certain that Congress did not exactly regard the Ordinance as at an end, by the adoption of the Constitution of the United States, as is plain from the very first law on the subject adapting it to the Constitution. 1 Stat., 50. And in allowung the various States which were formed out of that Territory to adopt State gov- ernments, provision was made that they should not do any- thing repugnant to the Ordinance, wfith certain specified excep- tions. As to Ohio, Act of April 30, 1802, Sec. 5, 2 Stat., 173, 289. As to Illinois, Act of April 18, 1818, Sec. 1, 3, Stat., 428. As to Indiana, Act of April 19, 1810, Sec. 4, 3 Stat., 428. And the same is true of the States since admitted, Michigan and AVisconsin. And Congress extended the ])rovisions of this Or- dinance, except the introductory clause, over some of the Southwestern States. But without dwelling upon this })art of the sul)ject, which is only mentioned for the ]uirpose of show- ing hoiv fully this Ordinance ivas folloired up by Congress, let us see how the (piestion sta.ncls u])on Acts of (hmgress ])assed from time to time since the organization of the Government. The (Government stalled with the declaration, that the navi- gable waters leading into tlie Mississi})])i should be common liighways and forever free. It is said by the Court in the case of Strader v. Graham, already referred to, that the new goV' ernment ((Constitution and Laws of the United States), secured to the peo])le of the Noi thwestern States all the ])ublic rights of navigation and ('ommerce which the Ordinance did or could provide for. It would be a curious commentary u})on this language to say 'that the AVestern States can materially ob- struct or dam up the great navigable rivers within their liorders. But the legislation of Congress seems to warrant the opinion expressed by the (‘ourt. l^esides the Acts already referred to, many others may be mentioned as indicating the views of Congress as to AA^estern rivers. In the Act providing for the sale of lands northwest of the (Ihio and above the mouth of the Kentucky, of May 18, 179(5, 1 Stat., 464, the ninth section declares that all navigable rivers within the Territory to be disposed of by that Act, shall be deemed to be and remain l)ul)lic lii^'liways. iViul so in relation to tlie rivers within cer- tain honinlaries, by tlie (itli See. of tlie Act of June 1, 1796, 1 Stat., 491. The same ])rovision was applied to all the rivers of the Indiana Territory, North of the Ohio and East of the Mississi])})i, of which Illinois then formed a ])art, by the sixtli section of tlie Act of Marcli 26tli, 1804, 2 Stat., 277, the 17th Section of the Act of March J, 1803, 2 Stat., 235, made the same rule applicable to all navigable rivers within the terri- tory of the United States South of the State of Tennessee. And so, as to the navigable v/aters in Louisiana, Act Feb. 20, 1811, Sec. 3. And it vras an express condition of her admission into the Union, that tlic Mississippi and the navigable waters leading info the same should be forever free. Act April 8, 1812. 2 Stat., 642, 703. The same rule was applied to the rivers of Alabama, Act March 2, 1819. And to Mississippi, Act March 1, 1817, 3 Stat., 492, 349. And to Missouri, Act June 4, 1812, Sec. 15, 2 Stat., 747. Indeed, without proceeding further, if may be safely affirmed that in no instance has Congress per- mitted an occasion to pass without declaring that the Missis- sippi and its navigable tributaries shall remain public high- ways and forever free. These various enactments clearly prove the extraordinary solicitude with which Congress has from the very foundation of the government watched over this subject. It would seem impossible to misapprehend the motive of such legislation. ^‘But it is said, that the new States having come into the Union upon an equal footing with the original States, these various laws in relation to the navigable rivers are not bind- ing on the new States, unless as regulations of commerce, and that, being contained in land laws, most of them are mere Territorial regulations, and temporary in their character. Now, it is immaterial whether Congress has legislated under the impression that a part of the Ordinance of 1787 was still in force, although it is not; provided it is apparent from its whole tenor of legislation that it has re-enacted such part and given it continued operation. And that does seem to be the fact in this instance. If we find a law of Congress, and more especially if we find a series of laws all tending to the same result, the main question is not, whether Congress was looking to this or that part of the constitution for the power to enact, but is the power in the instrument? If it is, it is a binding, valid law, no matter what part of the constitution Congress was thinking of at the time of its passage. It has sometimes happened that Congress has passed laws as they supposed under one part of the constitution, and the Supreme Court has given them effect under another. I think, therefore, that Congress has intended, and carried that intent into effect, to make the Mississippi, and the navigable waters leading 81 into it t'roni this State, eoiuiiioii piiblie liigiiways and free to all tlio citizens of tlie United States.” 1867 Woodman v. KUhouni Mfg. Co., 1 I^issell, 546: Tliat was a bill to restrain the erection of a dam rvitli locks and provisions for navigation in conformity to a statute of Wis- consin authorizing the same across the Wisconsin Itiver. The court withlield the question of injunction to the final hearing, when it was heard upon pleadings and briefs before Justice Davis, and Miller, 1). J., and the bill was dismissed. W^e have seen what seven years later Mr. Justice Davis said in the Montello case. He evidently saw no inconsistency between what he held in the one and what he held in the other. At the preliminary apjilic-ation Miller, D. J., gave an opinion sustaining the rights of the State to confer authority to erect a dam with locks to protect the navigation, and that the same was not a violation of the Ordinance or the act admitting AVisconsin. The reasoning is the same as that in the other dam and bridge cases, which will be noticed more fully. 1874 The AIontello, 87 XT. S. (20 AAhill.), 430: This case is quoted elsewhere very fully, and shows that the Ordinance of 1787 wms regarded by the court as a valid regulation of navigation. The court said, p. 444: ‘‘To preserve the national character of all the rivers lead- ing into the Mississippi and St. Lawrence, and to prevent a monopoly of their waters, was the ]nirpose of the Ordinance of 1787, declaring them to be free to the public; and so im- portant was the ])rovision of this Ordinance deemed by Con- gress that it was imposed on MTisconsin as a condition of admission into the Union.” It was imposed in like manner and in almost identical vrords as a condition to the admission of Illinois into the Union. 1877 Pound v. Turch, 95 U. S. 459. This was an action for injury to a raft coining down the Chip- pewa Eiver by defendant’s dam. The defendants pleaded the Statute of Wisconsin, Pr. L., 1857, Chapter 235, authorizing the dam and booms. By Section 7 the Act ])rovided as follows: “A¥hicli 1)00111 or booms shall lie so arranged as to permit the passage of boats at all times; and at times of running 814 Iiiiul]'er, a siiriicierit spac'e sliall ])e kept open at some con- venient place for the passing rafts, and the said dam or dams shall be built Avith suitable slides for flie rnnnin'g; of lumber in rafts over the same, and the said dam or dams and boom or booms sliall be so constructed as not to obstruct the run ning of lumber rafts in said river.” Ih'ivate laws of Wisconsin of 1857, p. 538. The court held that the statute of Wisconsin, authorizing this dam Avith this protection of navigation therein Avas not unconstitu- tional. It did not quote the passages of the Ordinance. Blit there is no act of the State of Illinois authorizing any dam here, so tliat this case rightly considered becomes an authority for the complainant. The dam in the case of Pound v. Turck would confessedly have been a nuisance if it had not been authorized by such a statute ; and in the case at bar the dam is not authorized by any such act. 1882 Escanaha Co. v. Chicago^ 107 U. S., 678. The validity of the ordinances of the City of Chicago, regulat- ing the opening and closing of draw bridges over the Chicago River, upheld. Upon the Ordinance of 1787 the court. Field, J., said : ‘‘It is, however, contended here that Congress has inter- fered, and by its legislation expressed its opinion as to the navigation of Chicago River and its branches; that it has done so by acts recognizing the Ordinance of 1787, and by ap- propriations for the improvement of the harbor of Chicago. “The Ordinance of 1787 for the government of the territory of the United States northwest of the Ohio River, contained in its fourth article a clause declaring that, ‘The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between them, 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 confederacy, without any tax, impost or duty therefor.’ “The Ordinance was passed July 13, 1787, one year and nearly eight months before the Constitution took effect; and although it appears to have been treated afterAvards as in force in the territory, except as modified by Congress, and by the act of May 7, 1800, c. 41, creating the Territory of in- diana, and by the act of Feb. 3, 1809, c. 13, creating the Ter- ritory of Illinois, the rights and privileges granted hy the Ordinance are expressly secured to the inhabitants of those 81 5 'r(M‘i*ilori(\s ; and tlio ac't of April 18, 1818, (\ 07, onabllno' tlio 'I'X'oplo of I llinois 'Torritory to form a ('onsfjtuiiori and State ^ovorninent, and tlie resolution of Congress of Hoe. n, 1818, declaring the admission of the State into tlie ITnion, refer to tlie principles of the Ordinance acording to which the constitution was to he formed, its provisions conld not control the anthority and poirers of the State after her admission. Whatever the limitation upon her powers as a government whilst in a territorial condition, whether from the Ordinance of 1787, or the legislation of Congress, it ceased to have any operative force, except as voluntarily adopted hy her, after she became a State of the Union. On her admission she at once became entitled to and. possessed, of all the rights of dominion and sovereignty ndiich belonged to the original States. She was admitted, and could he admitted, only on the same footing with them. The language of the resolution ad- mitting her is ^on equal footing with the original States in all respects whatever.’ 3 Stat. 536. Equality of constitu- tional right and power is the condition of all the States of the Union, old and new. Illinois, therefore, as was well observed hy counsel, could afterwards exercise the same power over rivers within her limits that Delaware exercised over Black Bird Creek, and Pennsylvania over the Schuylkill River. Pollard’s Lessee v. Hagan, 3 How., 212 ; Permoli v. First Muni- cipality, id. 589; Strader v. Graham, 10 id. 82. ^‘But aside from these considerations, u'e do not see that th(- clause of the Ordinance upon whPh reliance is placed materially affects the question before ns. That clause con- tains two provisions: One, that the navigable waters leading into the Mississippi and the St. Lawrence shall he common highways to the inhahitants ; and the other, that they shall be forever free to them without any tax, impost, or duty therefor. The navigation of the Illinois River is free, so far as ive are informed, from any tax, impost or duty, and its char- acter as a common highway is not affected by the fact that it is crossed^ by bridges. All highways, whether by land or water, are subject to such crossings as the public necessities and con- venience may require, and their character as such is not changed, if the crossings are allowed under reasonable con- ditions, and not so as to needlessly obstruct the use of the highways. In the sense in which the terms are used hy pub- licists and statesmen, free navigation is consistent with ferries and bridges across a river for the transit of per*sons and merchandise as the necessities and convenience of the com- munity may require. In Palmer v. Commissioners of Cuya- hoga County we have a case in point. There application was made to the Circuit Court of the United States in Ohio for an injunction to restrain the erection' of a drawbridge over a 816 I'iver in tliat State on the ground tliat it would obstruct the navigation of the stream and injure the property of the plain- titf. The ai)plication was founded on the provision of the fourtli article of the Ordinance mentioned. The court, which was presided over by Mr. Justice McLean, then having a seat on this bencli, refused the injunction, observing that ‘This l)rovision does not ])revent a State from improving the navi- gableness of these waters, by removing obstructions or by dams and locks, so increasing the depth of the water as to extend the line of navigation. Nor does the Ordinance pro- hibit the construction of any work on the river which the State may consider important to commercial intercourse. A dam may be thrown over the river, provided a lock is so con- structed as to permit boats to pass with little or no delay, and without charge. A temporary delay, such as passing a lock, could not be considered as an obstruction prohibited by the Ordinance.’ And again: ‘A drawbridge across a navigable water is not an obstruction. As this would not he a work con- nected with the navigation of the river, no toll, it is supposed, could be charged for the passage of boats. But the obstruc- tion would be only momentary, to raise the draw; and as such a work may be very important in a general intercourse of a community, no doubt is entertained as to the povrer of the State to make the bridge.’ 3 McLean, 226. The same observa- tions may be made of the subsequent legislation of Congress declaring that navigable rivers within the Territories of the LTnited 'States shall be deemed public highways. Sec. 9 of the act of May 18, 1796, c. 29; sec. 6 of the act of March 26, 1804, c. 35. “As to the appropriations by Congress, no money has been expended on the improvement of the Chicago River, above the first bridge from the lake, known as Rush Street Bridge. No bridge, therefore, interferes with the navigation of any por- tion of the river which has been thus improved. But, if it were otherwise, it is not perceived how the improvement of the navigability of the stream can affect the ordinary means of crossing it by ferries and bridges. The free navigation of a stream does not require an abandonment of those means. To render the action of the State invalid in constructing or authorizing the construction of bridges over one of its navi- gable streams, the general government must directly interfere so as to suiDersede its authority and annul what it has done in the matter.” In this case the doctrine is for the first time definitely and com- pletely formulated that the admission of a State in the Union “on an equal footing with the original State in all respects whatever,” ipso facto abrogates the Orctlnance. 817 Wo shall see that tliis is a mistake. The Onlinanee of 1787 hoimd Illinois, and it also hound all the other States. This was true at the time of its enactment. When the Act of August 5, 1789, was passed, continuing the Ordinance in effect, this was a fresh act by the new government under the new constitution in the exercise of its power to regulate interstate commerce, which bound the Northwest Territory and all the other State alike. And when in 1818, Congress admitted Illinois into the Union, imposing the con- dition that its constitution shall be ^^Not repugnant to the Ordi- nance of the 13th of July, 1787,’^ and by its resolution of December 3, 1818, found that the new constitution was ‘Un conformity to the principles of the articles of compact between the original States and the people in States in Territory northwest of the Ohio,” it continued this regulation of interstate commerce in force as bind- ing alike upon the new States and on the old States, into associa- tion with which she was admitted. It protected the Mississippi lliver from its source in Minnesota to its mouth in Louisiana, and throughout its course amid all the States through which it passed, and it protected the tributaries of the Mississip])i Eiver, forming highways connecting with the Great Lakes through whatever States they might lead. It did bind the old States and the new alike, and made no distinction between them. The court had already in the IVheeling Bridge case, 13 How., 518, upheld the compact between Virginia and Kentucky, securing the navigation of the Ohio Eiver, and held that it was ratified by the act admitting Kentucky into the Union. 1 U. S. Stat. at Large, 189, and that it constituted a valid regulation of commerce, re- straining the power of Virginia to obstruct the navigation of the Ohio Eiver by erecting a bridge thereon. Again it will be seen that all this discussion of the Ordinance in the Escanaba case is a dictum arguendo. After liaving given his view of the Ordinance, the court, by Field, J., says : ^‘But aside from these considerations, we do not see that the clause of the Ordinance upon which reliance is placed ma- terially affects the question before us. * * * * ‘'The navigation of the Illinois Eiver is free, so far as we are informed, from any tax, impost, or duty, and its character as a common highway is not affected by the fact that it is crossed by bridges.” 818 lie simply adopts tlie Illinois doctrine, announced in 88 111., that tile Ordinance is not violated by the construction of a bridge across one of the protected rivers. There was, therefore, no oc- casion for the coui't to say that the Ordinance was not in force. It was not only unsound in reasoning, but it was not called for by the facts of the case. It takes its place with the dictum of (diief Justice Taney, upon which it rests as a dictum, which is outside the subject. 1883 Duluth Lumber Co. v. St. Louis Boom, Sc. Co., 17 Fed. liep. 419. Miller, J : ^^St. Louis Boom & Improvement Company — Act of 1872 of Minnesota — Bight to Compensation. “The act of the Legislature of Minnesota, of February 24, 1872, relating to the Knife Falls Boom Corporation, authorizes tlie St. Louis Biver Boom Company to receive, control, scale, deliver, and to take charge of all loose logs coming down the river within townships Nos. 49 and 50, — in fact, makes them bailees of such logs, with certain duties to perform in regard thereto ; and the owners of such logs, whether they have re- quested the services or duties to Tie performed or not, are bound to compensate the company therefor.” * * * * “The case made by the plaintiff is that it is the owner of a considerable lot of logs which came into the possession of the defendant, the boom company, and that they are entitled to the present possession of them, and have made a demand, which was refused. The facts seem to be that the Duluth Lumber Company had logs above the location of the boom company, which were run down singly and irregularly, and came within the limits of the boom company’s corporate ter- ritory, and were taken possession of by that company, and certain acts performed with regard to them, such as scaling them, helping them over the rocky places within the limits of the boom company’s domain, and finally delivering all of them to the lumber company, except some that they retained on account of a lien for the services to the whole of them.” # # # ^ “Something is said in this ease about the organic law ad- mitting the State into the Union; about the old act for the government of the Norlh-western Territory. AYe have long ago decided that the original act concerning the North-western Territory ceased to be of any force when Congress and the State chose to organize and admit the State into the Union. That Ordinance, then, is of no force in such a State. Nor do 1 think it worth while, myself, to notice the argument about the provision in the law admitting Minnesota into the Union; 819 nhoiil i\\\ iia.vii>*ab'lo sti-(‘aiiis i)ros(‘rv(‘(l for tlic^ iisa of llio (‘itizoiis of tlie different States free of toll. 'Tliis is no toll i'oi* naviij;-ation, in the ordinary sense. Tli(‘ word ‘navigation,’ in all ilie statutes of the United States, and in tlie eonj^titu- tioivs and all the treaties, does not mean the running of saw- loi>\s down a river; and tliat is a])out all that is necessary to say. “We are of tlie opinion tliat the aetioii in this case is not sustainable, and judgment will be rendered for the defendant. “ ft is proper to say that many statutes of many States, for the very purpose of preserving these small streams for the use of saw-logs and various kinds of smaller water-craft, de- clare such streams navigable. There is hardly a stream in the western country that can float a log that has not, by statute of the State, been declared to he navigable, to prevent people from putting dams across it ; but that has nothing to do with the great point of the navigability of streams of the United States concerning interstate navigation or international navi- gation. Those are statutes made by the States for their own uses, and they can declare, and often do declare, that a little branch is a navigable stream. That does not make it so, within the meaning of any constitutional provision, treaty, or ordinance of the United States.” 17 Fed. Eep., 419, 424, 42o. Here Judge Miller treated the matter orally, and quasi in furore rejected any suggestion that the Ordinance, or any statute had any application. He rejected any distinction between Wisconsin Territory, and the part of Minnesota, east of the Mississippi on the one hand, and other States like Illinois. He treated them as alike discharged from the Ordinance, when in reality they are alike subject to it and its re-enactments. 1884 Wallamet v. Hatch, 19 Fed. Eep., 847, ]:>er Oeadv, J. That case arose on a bill of review to reverse a decree enjoining the construction of a bridge across the Wallamet river at FMrtland, Oregon. The opinion at the original hearing was rendered in 1881, 6 Fed. Eep., 329. Heady, J., tliere said : “Again, the act of Congress of February 14, 1859 (11 St. 383), admitting Oregon into the Union, |)rovides (section 2) Hhat all the navigable waters of said State (Oregon) shall be common highways and forever free, as well to the inhal)itants of said State, as to all other citizens of the United States, without any tax, dutv, toll, or im])()st therefor.’ * 4 . # ‘ * * * * “The power to authorize the erection of a bridge over a navigable water of a State, for the convenience of the in- liahitants tliereof, belongs to the State as a part of its general police power. Congress does not possess this authority direct- ly, eo iio'uilne; but its control over the navigable waters of the States, as a means of commerce, gives it a practical veto upon the power of the State in this respect. Therefore, no State can authorize or maintain the erection of a bridge over a navigable water, which in etfect contravenes or conflicts with the law of Congress concerning the navigation of the same; and the fact that such water is wholly within the State is im- material, if it is accessible from another State, or forms a part of a navigable way between itself and other States.” ‘‘Does the act of February 14, 1859, supra, conflict with the act of the State Legislature authorizing the erection of this bridge!” ******* “Its only purpose is to preserve them for the free use of all the citizens* of the United States as common highways. It was passed by Congress in pursuance of its control over them as a means of commerce {Pollard v. Hogan^ 3 How., 229), to secure their free navigability to the inhabitants of the Union, against the possible exactions and obstructions of local authority, prompted by considerations of local convenience or selfishness. The provision, even to its very language, is as old as the articles of compact between the original States and the people and the States of the territory northwest of the Ohio, contained in the Ordinance of 1787' for the government of said territory, from the fourth of which it is copied. This Ordinance wias ratified or recognized by the first Congress under the constitution (1 St. 50), and the provisions securing the freedom of ‘the navigable waters leading into the Mississippi and St. Lawrence’ has been continued in force in all the States formed out of said territory to this day. ^‘Columhiis Ins. Co. v. Ciirtenius, 6 McLean, 209. “In Penn. v. W. S B. Bridge Co., 13 How., 518, it was held that a provision in a compact (December 18, 1789), between Virginia and Kentucky concerning the erection of the latter into a State, to the effect that the navigation of the Ohio, so far as the territory of the two States joined thereon, ‘shall be free and common to the citizens of the United States,’ which was afterwards sanctioned by Congress in the passage of the act (1 St. 189), admitting Kentucky into the Union, was a restraint upon the power of Virginia to obstruct the naviga- tion of said river by the erection of a bridge thereon within her own limits, and that a bridge so erected, which was a 821 substantial obstruction to such navigation, was a nuisance and unlawful. ^‘To the same etfeot is the decision in Columbus Ins. Co. v. Curienius, supra ^ in which it was held that Congress had de- clared, by the Ordinance of 1787 and otherwise, that the navi- gable tributaries of the Mississippi were free and common liighways to the citizens of the United States, and that there- fore an act of the legislature of Illinois, authorizing the con- struction of a bridge across the Illinois River, near Peoria, was void if such bridge was a material obstruction to the navigation of said river, as being in conflict with the federal legislation declaring it free and common. These decisions are the authoritative and uncontradicted exposition of the effect of federal legislation declaring a navi- gable river forever free and common to the citizens of the United States, upon the otherwise unlimited power of a State to obstruct or impede the navigation thereof within its own limits. And the reasoning upon which they rest seems unan- swerable. It is self-evident that a river cannot be a common highway, forever free to all the citizens of the United States, which the legislature of any one State has the power to es- sentially obstruct.’’ The cause having been tried, a final decree was rendered by Circuit Judge Sawyer and District Judge Deady sitting together, 6 Fed. Rep., 780. Sawyer, C. J., said: ‘‘I have very little to add to what the district judge has said. I fully concur with him in the conclusions that he has reached. It is very clear that, under the admitted law of the case, the act admitting the State into the Union, which pro- vides that the navigable waters of the State shall be free and common highways ; and in view of the decision of the Supreme Court in the Wheeling Bridge Case, 13 How., 518, in which it was held, under a similar act, that any obstruction to the navigation of the Ohio River was unlawful, except by the con- sent of Congress ; and the judiciary act of March 3, 1875, giv- ing this court jurisdiction of a suit arising out of an act of Congress, — that this court has authority to restrain the de- fendant from placing any stiaicture in this river which will obstruct its navigation. ******* ‘Ht may be of importance to the cities upon either bank of the river that they should have communication by means of a bridge; but these are considerations to be addressed to an- other tribunal than this court. They should be addressed to Congress, where, upon an application for permission to bridge the river, these conflicting interests can be considered and adjusted as may be thought best for the public good. ‘Mint this court umst simply ascertain whether the bridge will he a material obstruction to the navigation of tlie river. It cannot balance tliese conflicting interests and determine that the one will be more l)enefited by the bridge than the other will be injured thereby. Its power is confined to the determination of the (piestion wliether it will be a material obstruction to navigation or not. In the Wheeling bridge Case tlie ol)struction caused by the bridge, as compared with the benefit, was exceedingly small, ddiat suit was commenced in 1849, wdien the commerce on the Ohio was more limited than now, and the bridge was a (‘onnecting link in a great public highway by rail and other- wise. The referee reported that, of all the steam-boats then running on the river, only nine were prevented from yjassing the bridge on account of the great height — from 63 1-2 to 80 feet — of tlieir ^chimneys,’ and they for only a few days in the year. And although these chimneys might have been short- ened or lowered, w^heii passing the bridge, by means of hinges, and although the benefit resulting to navigation in the in- creased draft given by such tall chimneys must have been small in comparison to tlie benefit to comnnerce resulting from the bridge, yet the latter was determined to be a violation of the act of Congress declaring the navigation of the river ^free and common to the citizens of the United States,’ and the court ordered it abated as a nuisance.” On the hearing of the bill of review, 19 Fed. Kep., 347, Ueady, J., said : ^Un The Daniel Ball, 10 Wall., 557, it was held that Grand River, a comparatively insignificant water lying wholly within the State of Michigan, but empt^nng into the lake of that name, and only navigable 4-0 miles from its mouth to Grand Rapids, for a boat of 123 tons burden, is a navigable water of the United States, and subject to 'its control as a highway of com- merce, interstate and foreign, on account of its junction with Lake Michigan, of which it forms a part. ***#*#* Escanciba Co. v. Chicago. 107 U. S., 678 (2 Sup. Ct. Rep., 185), it was held that the Chicago River, lying wholly within the City of Chicago, and a little local stream, compared with the AVallamet, is a navigable water of the United States, because it leads into Lake Michigan; and in Miller v. City of Neiv York, 109 U. S., 385, the same rule was applied to the East River, a water wholly within the State of New York, but connecting the Hudson and the sound, and therefore a high- way of interstate and foreign commerce. Mr. Justice Field delivered the opinion of the court in both these cases, and re- IVrred to and relied oil the above (‘itatioii 1‘roin the o[)inion of the ('oiirt in tlie ease of the Daniel Bell. See also, Ildich, v. Wallamet L B. Co., (> Fed. Rep., 326.” The learned judge then eonsidered the suggestion that (Congress eonld not legislate specially for a i^iarticnlar river, which he sliowed was an error, and tlie furtlier contention that Congress could not impose conditions on the admission of Oregon. As to this last he said : “But the clause in section 2 of the act of 1859 declaring the navigable waters in Oregon to be ‘common highways,’ is no part of these propositions, and does not even purport to derive its force or vitality from this or any compact, but solely from the fact that it is an act of Congress, duly passed by it in pursuance of its power to regulate commerce. The admission of the State and the enactment of the regulation are simply coincident in point of time. The one was admitted unconditionally and the other enacted absolutely; and the regulation might have been enacted on the day before or the day after the admission, or at any time since as well as then. But even if it had been made a condition of the admission of the State into the Union that the people thereof should con- sent to this regulation, it would nevertheless be valid, as an act of Congress, because that body had the power to pass it without their consent. Their consent would add nothing to its force or validity. In the leading case on this subject of Pol- lard V. Hagan, 3 How., 221, the court say (page 229) of the following declaration contained in the compact entered into between the United States and Alabama, u})on the admission of the latter into the Union, ‘that all navigable waters within the said State shall forever remain jiublic highways, free to the citizens of said State and the United States, without any tax, duty, impost, or toll therefor, imposed by the snid State,’ (3 St., '492), that it was nothing more than a regulation of commerce, and, as such, a valid and binding act of Congress, without reference to the su})posed conpiact or the consent of the people of Alabama.” He then took up and dealt with the remaining contention as followiS : “(4) That the provision in sedion 2 of the ad. of 1859 — ‘all the navigable waters of said State (Oregon) shall be common highways and forever free, as well to the inhabitants of said State as to all other citizens of the United States, without any tax, duty, im]X)st, or toll therefore’ — was not intended, and should not be construed as a restriction or limi- tation on the power of the State to impede and obstruct tlie navigation of the Wallamet River at its pleasure, but only 824 on its power to impose a toll upon any citizen of the United States on acc'ount of such navigation. This clause liad its origin hi Uie fourth of the articles of compact of the ordinance ot .1887, tor the government of the Northwest Territory, in which it was provided tliat Ulie navigable waters leading into the Mississippi and the St. Lawrence, and the carrying places between the same, shall he common highways and forever free, as well to the inhabitants of 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,’ and has been applied to the States admitted to the Union since the formation of the constitution, and formed out of territory other than that included in the ordinance, it being generally supposed, until a comparatively late day, that these articles of compact, and particularly the clause in ques- tion, continued in force in the States formed out of such ter- ritory, except so far as altered by ^common consent.’ Strader V. Graham, 10 How., 97, McLean and Caton, JJ. ; Palmer v. Com’rs Cuyahoga Co., 3 McLean, 226; Columbus Ins. Co. v. Curtenius 6 McLean, 209. It is admitted that the provision does prohibit this State from imposing any tax or toll on any citizen of the United States on account of the navigation of the river. But the authority of the national government to restrain the State in this particular is no clearer than it is to prevent the State from authorizing or causing obstructions to tne navigation of the river that may as effectually deprive the citizen of the United States of its use as a highway as any tax or toll could. ******* ‘‘And in this connection it should be remembered that the court did not decide that the act of 1859 prohibited the erec- tion of any bridge across the Wallamet. It prohibits, of course, the erection of a low, solid bridge, for that would be an impassable barrier — a complete closing of the highway. And it is equally certain that it does not prohibit the erection of a high, suspension bridge under which vessels navigating the river might pass without hindrance or delay. Neither does it prohibit a low bridge, properly constructed with a good and sufficient draw, through which vessels may pass without unnecessary danger or delay — the commerce, size and condition of the river, as well as the state of the art of such bridge building being taken into consideration. It is well known that all highways, whether of land or water, are sub- ject to be crossed by other highways. The commerce of the country cannot be conducted on parallel lines. But where and in what manner such crossing shall be made or allowed depends largely upon the particular circumstance of each case. Hatch V. Wallamet I. B. Co., supra.^^ * * * * * * * 825 “^riio d(H‘isi()ii in Esca/naba Co. v. Chlcdfjo, supra, so rniK']i relied on by tlie phiintiff herein, is not in conflict with these A^iew's. In a legal point of view, the case is not new, though it contains some wliolesonie suggestions ux)on the application of the law to the facts and circumstances of that case, whicli are peculiar and altogether different from this. A small bayou, called a river, with a current less than a mile an hour, not a mile in length below its two branches, not exceeding two miles in length each, not naturally over 150 feet in width, and lying in the heart of a great city, was deepened and widened so as to serve as a canal or convenient waterway, whereon to move the lake boats from the harbor in the lake outside, into which it drained, to the docks and warehouses along its banks. Over it there are a number of draw-bridges, erected by public authority, on which pass daily great numbers of people, par- ticularly in going to and returning from their business and employment in the morning and evening. Amer. Cycle., Chi- cago. The city, by authority of the State, and with a Anew of preventing the inconvenience resulting from the unregulated and conflicting use of the bridges and the waterway, passed an ordinance requiring the draws to be closed for the l3enefit of the land travel for one hour in the morning and evening, and limiting the period during which a draw might be kept open for the passage of vessels to ten minutes at any one time. The suit did not involve the right to build the bridges, nor the suf- ficiency of the draws. The right of the city on both these points was taken for granted, and the only question made and decided was whether, under the circumstances, this was a rea- sonable regulation, one that did not needlessly obstruct the use of the waterway, and the court, if I may be alloAved to say so, very properly and wisely held that it was. The case was brought in the Circuit Court of the United States upon the as- sumption that the provision of the fourth article of compact of the ordinance of 1787, whereby the navigable waters of the Northwest Territory were declared ‘common highways’ was still in force in Illinois, and therefore the reasonableness of the city ordinance, when judged by this United States law, was a federal question, and the national courts had jurisdiction of the casCy and the decision was actually made upon this hypothesis. But the learned justice who delivered the opinion of the court went further, and said that by the admission of Illinois into the Union ‘on an equal footing with the original States in all respects whatever,’ the ordinance ceased to have any effect within her limits, and therefore there was no law of the United States regulating the use of the navigable waters of the United States within the 'State of Illinois, and therefore the latter was the judge of what Avas reasonable in the prem- ises. 820 “I'lie ('ases cited in support of tiiis latter (‘onclusion are PolUu'd V, llar/av, 3 Tiow., 212; Permoli v. Ne)v Orleans, Id., 589, and Strader v. (iraliani, 10 How., 82. By tlie first one, as we liave seen, it was simply lield that Congress cannot, by any ('oni])act or (‘ondition made witli or laid upon a State on lier admission into the Union, restrain or limit her municipal power as such State, but that, if the subjejct of the compact or (‘ondition is within tlie power of (Congress to enact or regulate, without the consenf of the State — as to declare that the navi- gable waters therein shall be ^common highways’— it is good a.s a law. In PennoU’s ease the court only held that so much of the articles of compact as secured religious freedom to the inhabitants of the Territory of Orleans — the same having been specially extended there by Congress — ceased to have any force or effect therein upon the admission of the Territory into the Union as the State of Louisiana, because the subject of religious freedom in a State was beyond the power of Con- gress, and exclusively vUthin that of the State. In Strader’s ease it vras decided on a writ of error to the Supreme Court of Kentucky that the condition of a negro held as a slave in that State, and who had been allowed to visit Ohio, but afterwai'ds returned, was, after such return and in said State, a ([uestion arising solely under the laws of Kentucky, and therefore not within the jurisdiction of the Supreme court. But, in deliv- ering the opinion of the court, Mr. Chief Justice Taney, refer- ring to some sort of claim that had been made in the argu ment that the provision in the articles of compact of the ordi- nance of 1787, prohibiting slavery in the Northwest Territory, of which Ohio was a part, had some bearing on the question of the status of the negro, denied that it could have any effect outside of such Territory; and then took occasion further to say that the ordinance wms no longer in force, even in Olu’o, where it had been superseded by the organization and admis- sion of the Territory into the Union as a State, and added that it had been so decided in the cases of Permoli v. New Orleans and Pollard v. Hagan, supra. But this statement, tlioiigh true generally, and in the light in which the chief justice was co]i- sidering the articles — that is, so far as they trenched upon the municipal power of the State, or were inconsistent with its control over its domestic affairs — was not otherwise accu- rate or correct. And for this reason both Justices ^[cLeax and C'ATEox, while assenting to the decision that the ordinance had no application to the case, in any view of the matter, and that the court had no jurisdiction to review the judg]uent of the Kentucky court, protested against this dictum of the chief justice, the latter putting his dissent especially on tire naviga- tion clause of the fourth article of the compact, and saying: ‘For thirty years, the State courts within the territory 827 ('(hIchI by Virg'inia have held this ‘])art of the rourth artic^le to be ill force, and binding on them respeetively ; and \ feel un- willing to (iistiirb this wholesome ('ourse of decision, wliicli is so conservative of tlie rights of otliers, in a case where the fourth article is nowise involved, and when our opinion might be disregarded by the State courts as ohiter and a dictivni uncalled for.’ ‘‘And, as we have seen, the only question decided in Per- holi’s case was that the clause in the compact securing re- ligious freedom to the inhabitants of the territory was nec- essarily superseded upon its admission into the Union as a State, while it is admitted that the principle of this ruling would include all similar provisions in the compact. In Pol- lard V. Hagan, while it was held that a State could not be ham- pered or bound, in its admission into the Union, with condi- tions or compacts that would limit or restrain its municipal power and right, as compared with the other States therein, it was distinctly decided that the clause in the ordinance, as ap- plied to Alabama by the Act of Congress of March 2, 1819 (3 St., 489), authorizing the people of that territory to form a constitution, declaring the navigable waters of the future State ‘common highways,’ was not such a condition, but a valid law which Congress had the power to enact, whether the waters were within a State or Territory. “I, therefore, respectfully submit that the clause in the fourth article of the compact in the ordinance of 1787, relat- ing to the navigable waters in the Northwest Territory, hav- ing been enacted by Congress (1 St., 50), was a valid commer- cial regulation as to the navigable waters in said territory or 'the States afterwards formed therein imfil repealed hy it, and therefore it is still in force in Illinois. “ But be this as it may, the decision does not touch the (jues- tion of the validity or force and etfect of the Act of 1859. Foi* on what possible ground can it be claimed that the admission of Oregon into the Union set aside or superseded an otherwise valid clause in the very act of submission, declaring the navi- gable watei's of the future State ‘common highways?’ “This case, having been heard before the Circuit judge, and the decree under review having been made by him, I thought 1 ought not to decide the matter witliout consulting him. A(‘- cordingly, I submitted this opinion to Judge Sawyer,, wuth coj)ies of the briefs of counsel, and he has authorized me to say that he concurs in it.” 1887 Willamette Iron P ridge Co. v. Hatch, 125 U. S., 1. This case went on appeal to the Su})reine (*ourt of the [Inited States. In tlie statement of the case the (*ourt mentions that “on the 18th of Octobei', 1878, the Legislature of Oregon passed an Ad 828 eniillod ‘An Act to aiitliorize tlie coTistriiction of a bridge on the Willamette ]\iver, etc.,’ aTul inoceeded to state that the bridge in question was Jmilt under this authority. Bradley, J., delivered the opinion. On the subject now before us lie said: “But, as we liave stated, the court below held that the Act of (’ongress of 1859 was a law which prohibited any obstruc- tions or impediments to the navigation of tlie public rivers of Oregon, including that of the AVillamette Eiver. Was it such an act! Did it have such an effect! “The clause in question had its origin in the 4th article of the compact contained in the ordinance of the old Congress for the government of the territory northwest of the Ohio, adopted July 13fh, 1787, in which it was amongst other things de- clared that Ahe 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 in- habitants 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.’ 1 Stat., 52 n. This court has held that when any new State was admitted into the Union from the North West Territory, the ordinance in question ceased to have any operative force in limiting its powers of legislation as compared with those possessed by the original States. On the admission of any such new State, it at once became entitled to and possessed all the rights of dominion and sovereignty which belonged to them. See the cases of Pollard^ s Lessee v. Hagan, supra; Permoli v. First Municipality, 3 How., 589; Escanaha Co. v. Chicago; Cardwell v. American Bridge Co.; Huse v. Glover; qua supra. In admitting some of the new States, however, the clause in question has been inserted in the law, as it was in the case of Oregon, whether the State was carved out of the territory northwest of the Ohio, or not; and it has been supposed that in this neiv form of enactment, it might he regarded as a regula- tion of commerce, which Congress has the right to impose. Pollard^ s Lessee v. Hagan, 3 How., 212, 230. Conceding this to he the correct vietv, the question then arises, ivhat is its fair construction? What regulation of commerce does it atfect! Does it prohibit physical obstructions and impediments to the navigation of the streams ! Or does it prohibit only the impo- sition of duties for the use of the navigation, and any dis- crimination denying to citizens of other States the equal right to such use! This question has been before this court, and has been decided in favor of the latter construction. “It is obvious that if the clause in question does prohibit physical obstructions and impediments in navigable waters, the State Legislature itself, in a State where the clause is in 829 force, would not have tlie power to cause or authorize sucli obstructions to be made without the consent of Congress. But it is well settled that the Legislatures of such States do have the same power to authorize the erection of bridges, dams, etc., in and upon the navigable waters wholly within their limits, as have the original States, in reference to which no such clause exists. It was so held in Pound v. Turck, 95 U. S., 205, in reference to a bridge without a draw, erected on the Amer- ican River in California, which prevented steamboats from going above it; and in Hamilton v. Vicksburg, £c., Railroad Co., 119 U. S., 280, relating to railroad bridges in Louisiana; in all which cases the clause in question was in force in the States where they arose, and in none of them was said clause held to restrain in any degree the full power of the State to make, or cause to be made, the erections referred to, which must have been more or less obstructions and impediments to the navigation of the streams on which they were placed. In Cardwell v. American Bridge Co. the two alternate con- structions of the clause above suggested were brought to the attention of the court, and, on consideration, it was held as follows: ^Upon the mature and careful consideration which we have given in this case to the language of the clause in the act admitting California, we are of opinion that, if we treat the clause as divisible into two provisions, they must be construed together as having but one object, namely, to insure a highway equally open to all without preference to any, and unobstructed by duties or tolls, and thus prevent the use of the navigable streams by private parties to the exclusion of the public, and the exaction of any toll for their navigation; and that the clause contemplated no other restriction upon the power of the State in authorizing the construction of bridges over them whenever such construction would promote the convenience of the public.’ In Hamilton v. Vicksburg , Sc., Railroad Co. it was said: ^llntil Congress intervenes in such cases, and exercises its authority, the power of the State is plenary. When the State provides for the form and charac- ter of the structure, its directions will control, except as against the action of Congress, whethei* the bridge be with or without draws, and irrespective of its effect upon navigation’; question in Cardivell v. American Bridge Company was reiter- ated, namely, that it was intended to prevent any discrimina- tion against citizens of other States in the use of navigable streams, and any tax or toll for their use. In Huse v. Glover, 119 U. S., 543, where a portion of the Illinois River had been improved by the State of Illinois, by the erection of locks in the river, and a toll was charged for passing through the same, it was held that this was no encroachment upon the power of Congress to regulate commerce, and that whilst the ordimuKH^ oi* 1787 was no longer in force in Illinois, yet, if it were, tlie ('onstnudion g'iven to the clause in the C'ardwell case was approved, and the following o!)servation ,was made: — ‘As thus ('onstrned, tlie clause would [)revent any exc'hisive use of the navigable waters of tlie State — a possible farming out of the pi-ivilege of navigating tlieni to particular individuals, (‘lasses or corporations, or by vessels of a particular cliarac- ter.’ It was also held that the exaction of tolls for passage through the locks as a compensation for tlie use of tlie arti- ficial facilities constructed, rvas not an impost upon tlie navi- gation of the stream. The same views are held in the recent case of Sands v. Manistee River Improvement Co., 123 U. S., 288.” ******* “What the people of the old States wished to secure was the free iLse of the streams and carrying places in the North- west Territory, as fully as it might be enjoyed by tbe inhab- itants of tliat Territory themselves, without any impost or discriminating burden. The clause in question cannot be re- garded as establishing the police poiver of the United States over the rivers of Oregon, or as giving to the federal courts the right to hear and determine, according to federal law, every complaint that may he made of am impediment in, or an encroachment upon, the navigation of those rivers. “We do not doubt that Congress, if it saw fit, could thus assume the care of said streams, in the interest of foreign and interstate commerce; we only say that, in our opinion, it has not done so by the clause in c[uestion.’’ We take it up out of chronological order, because it is a con- tinuation of the cases just considered. It will be seen that Mr. Justice Bkadley here concedes it to be the correct view that the navigation clause of the Ordinance of 1787 as re-enacted in the legislation of the new Congress under the Constitution of 1789 is valid legislation as an exercise of the power to regulate interstate commerce. As we have seen, the new Congress passed an act on August 5, 1789, continuing the provisions of the old ordinance in etfect. In 1796, by the Act establishing the office of surveyor general, they re- peated this very clause as to these very lands. In the Act of 1801, establishing the Indiana Territory, they repeated it again. And finally Congress imposed it as a condition upon Illinois by the Act of 1818, and Illinois acceded to it and recited that she did by the preamble of her constitution, and, again. Congress, by resolu- tioii adinittiiii*' Illinois, tlie ('onstituiion with sucli i-(‘(*ital to he ill eoiifonnity with liie jirovisioiis of the OnliTianee. There is, therefore, no ground left for the eontention that this [irovision, thus four times repeated as to Illinois, is not in foree. The thing decided the Supreme Court, Bradley, J., is, that these acts do not in and of tliemselves assume the care of the streams, and constitute federal policing thereof, which is para- mount and exclusive; and, secondly, that the proposed liridge was not a nuisance per se. Neither of these ciuestions involve the ques- tion whicli is before the court in the case at bar. That question may be stated as follows: Has the dedication of the Des Plaines Biver as a free, common highway been protected, and if so when and by what means? As to this (juestion the State insists that the Ordinance of 1787 was the act of a sovereign proprietor that not only governed the terri- tory but owned the territory, and in this act of sovereign propri- etorship the United States of the confederation dedicated this river to be ever a free public highway, and that the Congress of the United States under the new Constitution of 1789 reaffirmed the dedication by the Act of 1789, hj the Acts of 1796, and by the Acts of 1804, and imposed upon Illinois, as a condition of admission to the Union, that her constitution should not be repugnant to that dedication. Now, the Supreme court, by Mr. Justice Bradley, says : ‘Ht has been supposed that in this new form of enactment it might be regarded as a regulation of commerce which Con- gress has the right to impose. Concedincj this to he the correct view, the question then arises what is its fair construction?” And he answered this by saying that it prohibits only the impo- sition of duties for the vse of the navigation, and could any dis- crimination deny to citizens of other States the pqiial rir/Jit to such use. This construction is entirely sufficient for the purposes of the state in the case at bar. It concedes that there is a valid dedica- tion of a highway, that it was made as a regulation of interstate commerce by the Congress under the Statute of 1789, and that it is still in force, but declines to give it federal x)olicing, turning that 832 over to tlic State authorities. And for that reason the ease was brouglit in the State court. 3884 Cardivell v. Bridge Co., 113 U. S., 205. This was a bill for the removal of a bridge over the American River in California. The bill was dismissed on demurrer, and the decree was affirmed in the court above. In tlie statement of the case it is said that ‘‘the defendant was a corporation, organized under the laws of California, and pursuant to the authority conferred hy an act of its Legislature, had con- structed a bridge,’^ etc. Field, J., delivered the opinion, and said : “The complainant, however, contends that Congress has intervened and expressed its will on this subject by a clause in the Act of September 9, 1850, 9 Stat., 452, admitting Cali- fornia as a State into the Union, which declares ‘that all the navigable waters within the said State shall be common-high- ways and forever free, as well to the inhabitants of said State as to the citizens of the United States, without any tax, im- post, or duty therefor.’ 9 Stat., 453. This declaration is sim- ilar to that contained in the Ordinance of 1787, for the govern- ment of the territory of the United States northwest of the Ohio River, so far as the latter related to the navigable waters flowing into the Mississippi and the St. Lawrence. And in Escanaba Co. v. Chicago we held, with respect to the State of Illinois, that the clause was superseded by her admission into the Union, for she then became entitled to, and possessed of, all the rights of domain and sovereignty which belonged to the original States. The language of the resolution admitting her declared that it was on ‘an equal footing with the original States in all respects whatever,’ so that, after her admission, she possessed the same power over rivers within her limits that Delaware exercised over Blackbird Creek and Pennsylvania over Schuylkill River.” He then refers to Pound v. Turck, quoted above, and says : ‘ ‘ That clause is not, it is true, commented on in the opinion, but the section containing it is referred to, and the declara- tion that navigable streams within the State are to be com- mon highways must have been in the mind of the court.” * * * * * “The clause, therefore, in the Act admitting California, (j noted above, upon which the complainant relies, must be con- sidered, according to these decisions, as in no way impairing the power which the State could exercise over the subject if tlie clause had no existence. But independently of this con- slderat lon wo do not think tlie ohiiise itsell' mini res tlio oon- struotion which the eourt below placed upon it, and which (‘onnsel urges so earnestly for our consideration. Tliat court hold that tho clause contains two provisions, one that the nav- igable waters shall be a connnon highway to the inhabitants of the State as well as to citizens of the United States; and the other that they shall be forever free from any tax, impost or duty therefor ; that these provisions are separate and dis- tinct, and that one is not an adjunct or amplification of the other. Possibly some support is given to that view by lan- guage used in the opinion in Escanaha Co. v. Chicago. In that case all the bridges over the Chicago River had draivs for the passage of vessels^ and ive there held that a bridge constructed with a draiv could not be regarded ivithin the Ordinance of 1787 as an obstruction to the navigation of the stream. We were not required to express any further opinion as to the meaning of the ordinance. But upon the mature and careful consideration, which we have given in this case to the language of the clause in the act admitting California, we are of opinion that, if we treat the clause as divisible into two provisions, they must be construed together as having but one object, namely, to insure a highway equally open to all without pref- erence to any, and unobstructed by duties or tolls, and thus prevent the use of the navigable streams by private parties to the exclusion of the public, and the exaction of any toll for their navigation; and that the clause contemplated no other restriction upon the power of the State in authorizing the con- struction of bridges over them whenever such construction ivould promote the convenience of the public. The Act admit- ting California declares that she is ^admitted into the Union on an equal footing with the original States in all respects whatever.’ She was not, therefore, shorn by the clause as to navigal)le waters within her limits of any of the powers which tlie original states ])ossessed over such waters within their limits.” It will he noted that tlie court, by Field, J., here limits the de- cision in the Escanaba case by the clause italicized above. ^^We there held that a bridge constructed with a draw could not be regarded within the Ordinance of 1787 as an obstruc- tion to the navigation of the streams. We were not required to express any further opinion as to the meaning of the ordi- nance.^^ This, then, is what is determined by the great Escanaba case, that a draw bridge does not violate the ordinance, this and noth- ing more. Ajid the American Bridge (knnpany case liolds that the naviga- lioji (‘lauso ill llio Act adinilthig (^ilit'ornia did “insure a liigliway e([ually open to all without preference to any, and unobstructed by duties or tolls.” # * * “And that the clause contemplated no other restriction upon the power of the State/m authorizing the construction of bridges over them whenever such construction would promote the convenience of the public.” This, then, was decided by the American Bridge Company case, that the navigation clauses did insure a public highway, but did not limit the power of the State to authorize a bridge. In the case at bar, the State has not authorized any bridge and the State has not authorized any dam. The Congressional legis- lation does secure a public highway, and the 'State is here in this case trying to protect and enforce its public highway. 1885 Van BrocMin v. State of Tennessee, 117 U. S., 151. The court here held that property situated in Tennessee owned by the United States for the purpose of carrying on the federal government, is exempt by the constitution of the United States from State taxation. The case is a noteworthy rehearsal of the history of the relation of federal property to the State governments, making quotations from the early cases, and arguments from the Articles of Confed- eration and the Ordinance of 1787 and Acts admitting numerous States to the Union and the exemption Acts of the ditfer^^nf States. Incidentally Mr. Justice GtRay lets fall upon page 159 the follow- ing: “In the Articles of Confederation of 1778 it had been ex- pressly stipulated that ‘no imposition, duties or restriction shall be laid by any State on property of the United States.’ Aud in the articles which the Ordinance of 1787 for the gov- ernment of the Northwest Territory declared should ‘be con- sidered as articles of compact between the original States and the people and States in said Territory, and forever remain unalterable, unless by common consent,’ it had been provided that ‘no tax shall be imposed on lands the property of the United States.’ Constitutions and Charter, 8, 432. “The ^Articles of Confederation ceased to exist upon the adoption of the Federal Constitution; and the Ordinance of 1787, like all acts of Congress for the government of the Ter- ritories, had no force in any State after its admission into the Union under that constitution. Permoli v. The First Munici- palUy of New Orleans, Ilovv., (389, OK); H trader v. Oraham, 10 liow., 82.” This was a mere remark by the jud^e in passing, and is not in any wise involved in the case. It is an attempt to make a con- densed statement of tlie Permoli case in 3 How., and of Chief Jus- tice Taney's decision in the Strader case in 10 How. These cases have been fully explained heretofore, and the Van Brocklin case adds nothing to them. 1886 Hamilton v. Vicksburg , Etc., Railroad, 119 U. S., 280. In this case the court. Field, J., upheld the constitutionality of an Act of Arkansas authorizing a bridge with a draw to protect navigation. He said : ‘‘The line of road crossed a small stream, one of the tribu- taries of the Ouachita Biver, called Bouff River, which was navigable for about six months in the year. This river has its rise in Arkansas, and by its connection with the Ouachita, which empties into Bed Biver, its waters find their way to the Mississippi. Over this river the company constructed a bridge with a draw sufficiently large to allow the passage of steamers. It was used for years without complaint from any one, so far as the record discloses. But in 1880*it was found, upon inspec- tion, to be decayed and unsafe for the passage of trains. The defendant, which had succeeded to the property and interests of the Vicksburg, Shreveport and Texas Company, therefore determined to rebuild it. To carry out this purpose with as little inconvenience as practicable to vessels navigating the river, the company contracted with an experienced builder to construct the bridge during the summer months, when the river was usually too low for navigation. The work could not be begun until the subsidence of the water in July. In order to expedite its construction, the company stipulated with the contractor to prepare the timbers at its workshops and trans port them to the ground as soon as the state of water would permit the work to be commenced ; and it carried out its stipu- lation in that respect. In the construction of the new bridge it became necessary to dismantle the draw of the old one, and to erect temporary supports, while the timbers and draw of the new bridge were being put in place. To prevent the stoppage of its trains while this building was going on, the company constructed a temporary bridge adjoining the old one, for their transportation, expecting to have the new bridge com- pleted before the winter rise, which usually began near the close of December, should render the river navigable. But, early in August, rains set in, and continued almost incessantly for iiioiitlis, loiiclering- the river naviga])1e in Novem})er, moieli earlier than usual. The work on the new bridge was tlierehy greatly impeded. To obviate this impediment, as far as pos- sible, tlie company added to the contractor’s force a gang of its own bridge la])orers, who assisted by working at night and on Sundays. “The court below found that tlie company did everything in its po‘wer to accelerate the work on the new” bridge, but it was not completed until December 20'tb following. The water in the river being increased by the unusual rains, there was suf- ficient depth on the 6th of November to carry the plaintiff’s steamer wdth freight above the bridge. But the steamer could not pass owing to the temporary structure and the supports used in the erection of the new bridge. For the losses alleged to have been sustained from this obstruction between the 6th of November and the 20th of December the plaintiff brought this action.” * * * * * * * ‘NV similar provision is found in the acts admitting the States of California, Wisconsin and Illinois 'into the Union, w"ith respect to the navigable rivers and waters in them, the purport and meaning of which have been the subject of con- sideration by this court.” ^tr. Justice Field now •reiterated his statement in the Cardwell case, that the object of this Congressional legislation was in- sure a highu'ay equally open to all ivithout preference to any, and un oh str acted hy duties or tolls/’ * * And that the. clause contemplates no other restriction upon the power of the State in nuthorizing the construction of -bridges over them, whenever such 'construction would promote the convenience of the public. ’ ’ Here again the navigation clauses, ^of the Acts of Congress are ■especially recognized to be in force, and are especially recognized as having the effect to insure a highway and as constituting no other restriction upon the power of the State to authorize a bridge. This is plainly authority that the legislation in question is in force here. - 1886. Tluse v. Glover, 119 U. S., 542. This case came up from the U. S. Circuit court. Northern Dis- trict of Illinois, where it was reported in 11 Bissell, 550. (s. c. 15 Fed. Kep., 292.) It involves the navigation dams for improv- ing the navigation of the Illinois Biver at Henry and Copperas Creek, w”hich w”ere authorized by the Illinois Legislature in 1867. A hill wns (iUhI hy n hnn (Migaged in (uittin^' ice at Peru and else- wliere on the Illinois River and transi)orting the same by boats on the Illinois and other rivers, to enjoin the Illinois (yanal (com- missioners from exacting- tolls for passage thi-ough the dams at Henry and (V)pperas Creek of tlieir ice boats and barges. “The defendants are Canal Commissioners appointed in })ursuance of certain statutes of Illinois, which provided, among other things, for the construction of locks and dams on the Illinois River at Henry and Copperas Creek. The former were completed in 1872 and the latter in 1877, at an aggregate cost of about $854,739.42, the whole of which was paid by this State except about the sum of $62,359 paid hj the United States. ‘‘By the statutes referred .lo, the Commissioners were au- thorized to establish and collect reasonable tolls for the pass- age and use of the locks by boats. To that end a schedule was adopted, in accordance with which complainants have been required to pay and have paid, always under protest, tolls for the passage of the locks by their boats, such tolls being ascer- tained as to amount, upon the basis of the tonnage measure- ments of the boats and their cargoes.” Harlan, d., said, in deciding the case: “The doctrines of the adjudged cases sustain the authority of this State — there being no act of Congress forbidding it — to construct locks and dams upon the Illinois River. Her . avowed object in so doing was to improve the navigation of that river and effect a reduction of freights to the head waters of Lake Michigan and to the Mississip])i River. The mode and extent of such improvement, in the absence of national legis- lation, based upon the power of Congress to regulate com- merce, was for her determination. Her discretion in such matters, is not to be controlled by the courts so long as Con- gress does not interfere. That locks and dams cause some delay to, or in some degree affect the interests of those whose business on the Illinois River does not absolutely require the use of such instrumentalities, may be conceded. But if, in the judgment of the State, which has jurisdiction over all persons and things within its limits except as restrained by the Na- tional Constitution, the system of locks and dams is more ad- vantageous to the general x)ublic than the river in its natural condition ; if she deems it important to improve the navigation of the Illinois River, although thereby certain claisses engaged in commerce may be subjected to inconveniences which do not exist in the use of the river in its unimproved or natural con- dition, — her determination in the premises is not to be ques- tioned by any authority except Congress. “Until the National Legislature interposes its paramount authority, the State cannot be controlled by the judiciary as to the mode and extent of improving sucli navigable streams as are wholly witliin her limits. ‘‘Nor do we perceive that the power of the State in this re- spect is in any degree affected by the ordinance of 1787, even if that ordinance as to the matters now under consideration be not su])ersoded l)y tlie constitution of the United States.” * statute of Virginia, authorizing the cession to the United States of the territory northwest of the Ohio River, and in the deed of cession, one of the conditions prescribed was that the States formed out of that territory should be ad- mitted ‘members of the Federal Union, having the same rights of sovereignty, freedom and independence as the other States.’ The ordinance itself provided for the admission of the new States ‘on an equal footing with the original States, in all re- spects whatever.’ So that, it seems to the court, Illinois has as full power and jurisdiction over her navigable streams as Virginia has over the navigable streams within her limits. But if her powers in that respect are in any degree affected or controlled as to their exercise by the ordinance of 1787, it is not perceived that the position of complainants can be main- tained. The recognition of the right of the State, when un- restrained by Acts of Congress, to improve navigable streams within her borders in such manner and to such extent as to her seems conducive to the public interests, is not necessarily in- consistent with the provisions of that ordinance. Tlie declara- tion therein that the navigable streams leading into the Mis- sissippi River shall be common highways, and be forever free to the inhabitants of the territory and to the citizens of all the States, ivas certainly not intended as an inhibition upon the improvement of such highways by the Federal Government or by the respective States formed out of the Northwest Terri- tory. We cannot suppose that Virginia intended, when ced- ing this vast domain, to withhold from the future States to be erected therein that control of navigable streams which, upon the adoption of the constitution, she would have over those within her own limits. “The utmost, perhaps, which can be claimed is that that provision teas intended to secure the use of such navigable streams as highivays upon terms of equality, that is, ivithout discrimination against inhabitants of that territory or against citizens of any of the United States. Tlie Illinois River is none the less a common highway because its navigability has been improved so as to meet the wants of the public in a larger degree than it was capable of doing in its natural state. It is still a common highway, for use alike by all citizens of the Imited States under regulations which do not seem to be in- consistent u'ith the ordinance of 1787. '' liesidcs, in the opinion of the eonrt, the rights secured t)y the provisions of that ordinance, so far as it relates to navi- gable streams, are in substance secured^ by the constitutioai of the United States. Oonsequently, if that wliieli Illinois has done towards the improvement of the llliiiois River he not for- bidden by the National Constitution, it is not in eonfhet with the provisions of the ordinance of 1787.’’ It will be noticed that Mr. Justice Harlan here quotes witli some reserve the general dictum of Chief Justice Taney in the Strader case. He next says that the ordinance does not forbid the improve- ment of rivers, nor the charge of tolls for the improvements, and finally he adds the new proposition : “The rights secured by the provisions of that ordinance, so far as it relates to navigable streams, are in substance secured by the Constitution of the United States.” The ordinance and the early legislation of 1791) and 1804 derive further importance from the fact that that legislation was passed before the invention of the steamboat, and secured the rights of public highways in rivers which irere navigable by the primitive methods of navigation which prevailed before the steamt)oai was invented. This is equally true of the constitution. It went into effect eighteen years before Fulton’s steamboat made its voyage. 1887 Sands v. Manistee River Improvement Company, 12.4 1^. S., 288. The case is stated by the court as follows: “The ])!aintiff below was a (‘orporation oi-gmiized under a statute of Michigan for the itnprovement of Maiiistee River, a stream wholly within that State. The present action was brought to collect from the defendant the amount of tolls levied for the use, in the years 1878, 1879, 1880 and 1881, of the rivei* as improved. The improvements consisted in the removal of obstacles to the floating of logs and lumber down the stream, principally by cutting new channels at different })oints, and by confining the waters at other })oints by embankments. The statute, under ivhich the plaintiff below was organized, (con- tained various provisions to secure a careful consideration of the improvements proposed, of their alleged benefit to the ])ublic, and, if adopted, of their ])roper construction, and of the tolls to be charged for their use. The company must first obtain the assent of the Governor and of the Attorney General S-IO lo (lie proposed iniprovements, and then submit to the Board of (Umtrol designated, a map of the sections of the stream which it proposed to improve, and plans shoiving the nature and character of the improvements. If, in the opinion of the Boai‘d, the eonstruction of the proposed improvements would he a public benefit, and the company was a proper one to make them, the Board was required to endorse its approval upon the map and plans, give the consent of the State to their con- struction, and fix the time for their completion. Upon such approval, the corporation was authorized to make the improve- ments ; and, whenever they had been completed to the satis- faction of the Board of Control, and accepted, that body was to fix the rates of toll which the company might charge for running vessels, boats, rafts, timber, logs, or lumber through the improved stream. These rates were to he graduated with reference to* the distance run upon the river, and were not to l)e increased or changed without the consent of the Board, and could not be increased at any time, so that they would amount to more than fifteen per cent, of the cost of the improvements after deducting necessary expenses and repairs. The collec- tion of tolls was to be confined strictly to that part of the river improved, and to the floatable material benefited, by the im-^ proveinents. The streams improved under the statute were to be opened to all persons for the passage of vessels, boats, logs, rafts, timber and lumber, upon payment of the prescribed tolls; and unifonn rates were to be charged.” ******* ‘ ‘ The defendant, however, contended and requested the court to instruct the jury in substance as follows : * * * * * ^‘Second. That the statute in authorizing the improvements of rivers and the collection of tolls for them was in conflict with the clause of the Constitution of the United States which declares that no State shall pass any law impairing the obli- gation of contracts, in that it impairs the contract contained in the ordinance of 1787.” ******* ^^But the court refused to give these instructions or either of them, and the defendant excepted. The jury found a ver- dict for the plaintiff for $8,731.88, upon which judgment was entered. On appeal, the judgment was affirmed by the Su- preme Court of the State, 53 Mich., 593, and the case was brought here on writ of error. ^ ’ Field, Judge, said: ^‘Iii authorizing the Board of Control to fix rates of toll for the floating of logs and timber over the improved portions of the Manistee Kiver certain limits are prescribed to its action; but within those limits the matter is left to its judg- H41 iiieiii. No iioti(‘e (*aii he ^ivcai to particis who may have o(;ea- sion to use tlie stream to attend Irefore tlie Board and [)resent their views upon the tolls to he eliarged. Such parties eanuot be known in advance. The occasion for using tlie improved stream may arise at any time in the year; perhaps after the tolls have been estahlished. The whole subject is one of ad- ministrative regulation, in which a certain amount of discre- tionary autliority is necessarily confided to officers entrnsted with its execution. Should there be any gross injustice in the rate of tolls fixed, it would not, in our system of government, rem.ain long nncorrected. ^^The Manistee River is wholly within the limits of Michi- gan. The Staie^ therefore, can authorize any improvement which in its judgment tvill enhance its value as a means of transportation from, one part of the State to another.” * * * * * * * And to meet the cost of such improvements, the States may levy a general tax or lay a toll upon all who use the rivers and harbors as improved. The improvements are, in that respect, like wharves and docks constructed to facilitate commerce in loading and unloading vessels. Huse v. Glover, 119 U. S., 543, 548. Regulations of tolls or charges in such cases are mere matters of administration under the entire control of the State. ’ ’ Having thus decided the question before the court, Mr. Justice Fiei *d proceeded : ‘‘There was no contract in the fourth article of the Ordi- nance of 1787 respecting the freedom of the navigable waters of the territory northwest of the Ohio River emptying into the St. Lawrence, which bound the people of the territory, or of any portion of it, when subsequently formed into a State and admitted into the Union. “The ordinance of 1787 was passed a year and some months before the Constitution of the United States went into opera- tion. Its framers, and the Congress of the Confederation which passed it, evidently considered that the jirinciples and declaration of rights and privileges expressed in its articles would always be of binding obligation upon the ])eople of the territory. The ordinance in terms ordains and declares that its articles ‘shall be considered as articles of compact between the original States and the jieople and States in the said territory, and forever remain unalterable unless by common consent.’ And for many years after the adoption of the con- stitution its provisions tvere treated hy various Acts of Con- gress as in force, except as modified hy such acts. In some of the acts organizing portions of the territory under sepa- rate territorial governments, it is declared that the rights and 842 privileges granted by the ordinance are secured to the inhab- itants of those territories. Yet from the very conditions on which the States formed out of that territory were admitted into the Union, the provisions of the ordinance became inoper- ative except as adopted by them. All the States thus formed were, in the language of the resolutions or acts of Congress, ‘admitted into the Union on an equal footing with the original States in all respects whatever.’ Michigan, on her admission, became, therefore, entitled to and possessed of all the rights of sovereignty and dominion which belonged to the original States, and could at any time afterwards exercise full control over its navigable waters except as restrained by the Consti- tution of the United States and laws of Congress passed in -pursuance thereof. Permoli v. First Municipality of Neiv Or- leans, 3 How., 589, 600; Pollard v. Hagan, 3 How., 212; Esca- naha Co. v. Chicago, 107 U. S., 678, 688; Van Brocklin v. Ten- nessee, 117 U. S., 151, 159; Huse v. Glover, 119 U. S., 543, 546.” These remarks of Mr. Justice Field are an amplification of what he said in the Escanaba case and are subject to the same criticism which was there made. Mr. Justice Field realized that this was so, and accordingly proceeded to hold that they were really not involved in the case. He said : ‘‘But independent of these considerations, there is nothing in the language of the fourth article of the ordinance respect- ing the navigable waters of the territory emptying into the St. Lawrence which, if binding upon the State, ivoidd prevent it from authorizing the improvements made in the navigation ' of the Manistee River. As we said in Huse v. Glover, 119 U. S., 543, decided at the last term, ‘ The provision of the clause, that the navigable streams shall be highways without any tax, im- post or duty, has reference to their navigation in their natural state. It did not contemplate that such navigation might not he improved hy artificial means, by the removal of obstruc- tions, or by the making of dams for deepening the waters, or by turning into the rivers waters from other streams to im crease their depth. For outlays caused by such works the State may exact reasonable tolls.’ 119 U. S., 548. And, again: ‘By the terms tax, impost and duty, mentioned in the Ordi- nance, is meant a charge for the use of the government, not compensation for improvements.’ Ibid., 549. “We perceive no error in the record, and “The judgment of the Supreme court of Michigan must be affirmed ; and it is so ordered. ’ ’ This places the Minnesota case on the same footing as the Bridge cases. The Bridge cases say the Ordinance is not in force, and the legislation regul-ating the river is not in force, and besides they don’t prohibit bridges anyway. The Minnesota case and the case of II use v. (Hover, 119 U. S., 54*1, says the Ordinance is not in force and Congressional Legislation is not in force, and besides a toll upon a lawfully authorized dam for improvement purposes is not prohibited by the Ordinance or the legislation needed. As to both the bridges and the dams, since they do not violate the Ordi- nance or the Congressional Legislation and are specificall}" held not to violate them, it follows that question of whether the Ordi- nance was in force or not, was not necessary to the decision of the cases. The decision of Harlan, J., 11 Bissell, was affirmed in 119 U. S., 544. Mr. Justice Field repeated his holdings in the Eiscanaba case, both that one which followed the dictum of Taney, C. J.. and said that the Ordinance ‘‘ceased to have any operative force except as voluntarily adopted by her after she became a State of the Union,” and also the following: “We also held, in that case, that, independently of these considerations, the terms of the ordinance were not violated because the navigable streams were subject to such crossings as the public necessities and convenience might require. The rivers did not change their character as common highways, if the crossings were allowed under reasonable conditions, and so as not unnecessarily to obstruct them. The erection of bridges with dams, and the establishment of ferries for the transit of persons and property, are consistent with the free navigation of the rivers.” * * * * # * “A similar clause as to their navigable rivers is found in the acts providing for the admission of California, Wisconsin and Louisiana. The clause in the act providing for the ad- mission of California was considered in Cardivell v. Amerienn Bridge Compamj, 113 U. S., 205. We there held that it did not impair the power which the State could have exercised over its rivers had the clause not existed; and that its object was to preserve the rivers as highways equally open to all persons without preference to any, and unobstructed by duties or tolls, and thus prevent the use of the navigable streams by private parties to the exclusion of the public, and the exaction of toll for their navigation. The same doctrine we have reit- erated at the present term of the court in construing a sim- ilar clause in the act for the admission of Louisiana. Hamil- ton V. Vicksburg, Shreveport & Pacific Railroad, ante, 280. As thus construed the clause would prevent any exclusive use of 844 the navigable waters of tlie 'State — a possible farming out of the privilege of navigating them to particular individuals, (‘lasses or c.ori)orations, or hy vessels of a particular charac- ter. That the apprehension of such a monopoly was not un- founded is evident from the history of legislation since. The State of New York at one time endeavoreci to confer upon Liv- ingston and Fulton the exclusive right to navigate the waters within its jurisdiction by vessels propelled in whole or in part by steam. ‘‘The exaction of tolls for passage through the lociks is as compensation for the use of artificial facilities constructed, not as an impost upon the navigation of the stream. The pro- vision of the clause that the navigable streams should be high- ways without any tax, impost or duty, has reference to their navigation in their natural state. It did not contemplate that such navigation might not he improved hg artificial means, J)tj the removal of obstructions, or hy the making of darns for deepening the ivaters, or hy turning into the rivers waters from other streams to increase their depth. For outlays caused hy such tvorks the State may exact reasonable tolls, They are like charges for the use of wharves and docks con- structed to facilitate the landing of persons and freight, and the taking them on board, or for the repair of vessels.’’ 1892 Monongahela Nav. Co. v. U. S., 148 U. S., 312. That was a case of eminent domain, by which under the river and harbor act of August 11, 1888, the United States Government condemned and acquired the locks and dams of the Monongahela Navigation Company. The court upheld the river and harbor act, the validity of which was challenged, and incidentally rehearsed several of the holdings heretofore cited as to the rights of a State to authorize the erection of such locks, dams, and their existence as lawful property when constructed under such authorization. 1893 Shively v. Boivlhy, 152 U. S., 1, at 26, 33, 34. This most interesting case arose on a bill to quiet the title to lands below high water mark in the City of Astoria along the Co- lumbia Eiver. Without going into any question of title or defini- tion of navigable streams, we notice the case here because Mr. Justice Gray, in the great wealth of citation with which his opinion is enriched, cites the Ordinance on page 26, and most of the pre- ceding cases referring to it, and on pages 33 and 34 says : “By the ordinance of 1787 for the government of the North- west Territory, ‘the navigable waters leading into the Missis- sippi and 8t. Lawrence, and the carrying places ])etween the same, shall be common highways, and forever free, as well to the inhabitants of the said Teri-itory as to the citizens of tli(i United States, and those of any other States that may be ad- mitted into the Confederacy.’ Charters and Constitutions, 4o2; act of August 7, 1789, c. 8; 1 Stat., 50. And the acts re- lating to the Territories of Louisiana and Missouri co*ntained similar provisions. Acts of March 3, 1811, c. 46, sec. 12; June 4, 1812, c. 95, sec. 15 ; 2 Stat., 666, 747. ^ ‘In the acts for the admission of the States of Louisiana and Mississippi into the Union, it was likewise declared that ‘the Kiver Mississippi and the navigable rivers and waters leading into the same, or into the Grulf of Mexico, shall be common highways, and forever free, as well to the inhabitants of the said State as to other citizens of the United States.’ Acts of Februarv 20, 1811, c. 21, sec. 3; April 8, 1812, c. 50, sec. 1; 2 Stat., 642, 703; March 1, 1817 c. 23 sec. 4; 3 Stat., 349. “In Withers v. Buckley (1857), 20 How., 84, this court, af- firming the judgment of the highest court of Mississippi in 29 Mississippi, 21, held that this did not prevent the Legislature of the State from improving by a canal the navigation of one of those navigable rivers, and thereby diverting without com- pensation the flow of water by the plaintiff’s land; and Mr. Justice Daniel, in delivering judgment, said: ‘It cannot be imputed to Congress that they ever designed to forbid, or to withhold from the State of Mississippi, the power of improv- ing the interior of that State, by means either of roads or canals, or by regulating the rivers within its territorial limits, although a plan of improvement to be adopted might embrace or affect the course or the flow of rivers situated within the interior of the State. Could such an intention be ascribed to Congress, the right to enforce it may be confidently denied. Clearly, Congress could exact of the new State the surrender of no attribute inherent in her character as a sovereign inde- pendent State, or indispensable to her equality with her sis- ter States, necessarily implied and guaranteed by the very na- ture of the Federal compact. Obviously, and it may be said ])rimarily, among the incidents of that equality is the right to make improvements in the rivers, watercourses and highways, situated within the State.’ 20 How., 93. See also Willam- ette Bridge Co. v. Hatch, 125 U. S., 1, 9-12 ; Monongahela Co. V. United States, 148 U. S., 312, 329-333.” 1905 Maoiigault v. Springs, 199 U. S., 473. The court here held that in the absence of legislation by Con- gress, a State has full i>ower to improve its land and promote the general health by authorizing dams across interior streams, though previously navigable to the sea. A hill had l)eeii filed by the appeilant to enjoin the damming of Kinlocli (h'eek by tlie defendant under a statute authorizing the same. A demurrer to the hill was' sustained and the hill suhse- ([ueiitly dismissed. 123 Fed. Hej)., 700. The case rehearsed the doctrine of the American Bridge Company, 113 U. S. ; The Fsca- naha Co., 107 U. '8.; the Willamette Bridge Co., 125 U. S., and the other cases heretofore noted. It is a reiteration of the doctrine that the right of navigation and the right of bridging are of equal dignity and value. We have now examined all of the federal cases. It develops that no one of them necessarily involves any decision detracting from the force of Congressional Legislation re-enacting the navi- gation clause of the Ordinance of 1787 ; that several of them do by dicta say that the ordinance is not in force, but most of th^se same cases add that the ordinance as re-enacted hy the acts admitting the States then in question and providing for the sales of public land is still in force and is a valid regulation of interstate com- merce, and that that clause as so re-enacted does secure the exist- ence of the highivay ivhich existed at the time of its enactment, and protect it against monopoly or discrimination. Most of the cases arise upon bridges or dams and locks lawfully placed by State Legislation and such State Legislation is upheld. The bridges do not violate either the original ordinance or its re- enactment in Congressional Legislation. Neither do dams and booms and locks, lawfully authorized by State Legislation. * If now the defendant had secured a statute from the State of Illinois authorizing it to construct this dam, then these cases would be authority for the lawfulness of such dam. But the defendant has obtained no such Legislative authority. The defendant is proceeding without any Legislative authority or Executive authority from the State. These eases are thus clear authority that the act of the defend- ant is without right. The cases further show that in the absence of some special Con- gressional Legislation, an authority to erect structures in such streams as were legislated on by Congress in 1790 and 1804, that 847 is, the Dos l^lainos and Illinois Rivers, must bo obtained fr()^H. the State. THE ORDINANCE OF 1787 IS HELD BINDING IN THE OTHER STATKS CARVED OUT OF THE NORTHWEST TERRITORY. Ohio. 1831. Hog() V. Zanesville Canal dc. Co., 5 Oliio, 410. Muskingum River, held navigable and iprotected by the ordinance. ‘‘Hitchcock, J. : This portion of the ordinance of 1787 is as much obligatory upon the State of Ohio as our own con- stitution. In truth, it is more so, for the constitution may be changed by the people of the State, while this cannot be altered without the assent both of the people of this State and of the United States, through their representatives. It is an article of compact, and until we assume the principle that the sover- eign power of the State is not bound by compact, this clause must be considered obligatory. ’ ’ Michigan. 1853 Moore v. Sanborn, 2 Mich., 519-20. Pine River, Michigan (a small stream emptying into the St. Clair), held navi- gable and protected by the ordinance. The court below ruled : “I shall rule that Pine River up to that point where you may find the parties cut and put into it, and from which point logs are run to market, or to the mouth of the river, is a pub- lic highway, in tvhich the whole public have an easement.** The court above said : “The ordinance of 1787 would supersede this doctrine of the necessity of usage or custom, to establish a public right over our rivers, even were such the established rule of the common law. It declares that the navigable waters flowing into the Mississippi and St. Lawrence shall be common highways and forever free. It was framed without regard to the common law rule as to what constituted navigable waters, and was de signed to extend over all streams which were capable of being used for any purpose of public utility. This ordinance, it will be remembered, was established long before any considerable settlement of the territory over which its provisions were to extend, and it was intended to provide for future contingencies rather than for immediate application — was, in fact, the dec- laration of a perpetual reservation of rights to the public, sub- ordinate to which, individual rights should be acquired. ” 848 ‘NMviga])le waters,’ as used in ordinance 1787, ])roviding that tlie navigable waters leading into the Mississippi and St. Ijawrence, and the carrying places between them, shall be com- mon highways and forever free, does not include every little rill or brook whose waters finally reach these great highways. Tt was intended to, and did, apply only to such streams as were then common highways for canoes or bateaux in the commerce between the northwest ivilderness and the settled portions of the United States and foreign countries, and as to such rivers not then in use as would by law be embraced in the definition of navigable waters.” Burrough v. Whitman, 59 Mich., 279; 26 N. W., 491, 492. Indiana. '898 State v. Wahash Paper Co., 51 N. E., 949. Wahash River held navigable and protected by the ordinance. Wiley, J. : ^ Again, if the Wabash River is a navigable stream, then, under the authorities, it is a public highway, and a public highway is a public place. By the act of March 26, 1804, Par. 6 (2 Stat., 279), it was provided by Congress that ^all navigable rivers, creeks and wmters within the Indiana Territory shall be deemed to be and remain pub- lic highways.’ It must follow from this act of Congress that so much of the Wabash River as was in fact navigable in 1804 must be held navigable now, and to remain a ^public highway.’ In the "Western Gazeteer for 1817 (page 39), the Wabash River was said to be navigable for keel boats for 400 miles 'from its mouth; and at page 73 it was said that it was navi- gable for 470 miles. In 1819 there was a reprint of the Gazet- teer in Ireland, and at pages 40 and 75 the same statements are made. In the Indiana Gazeteer, published in Indianapolis in 1850, at page 21, it was stated that the Wabash River was navigable for 450 miles. In article 4 of the ordinance of 1787 (Rev. St., 1881, p. 1430) it is provided : ‘ The navigable waters leading into the Mississippi and Saint Lawrence and the car- rying 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 State that may be admitted into the Confederacy.’ It is a matter of public history that the Wabash River was used as a public highway between its mouth at the Ohio River and the portage somewhere between Huntington and Ft. A¥ayne for many years prior to the time when George Rogers Clark drove the British from Ft. Vincennes by this route up into Canada, February 25, 1778. In the case of Depew v. Board, 5 Ind., 8, the Supreme court held that the ordinance above cited has been 849 a(lo})t(H] niid i*ecog‘iiizod by Congress, and is a valid and sul)- sisting law of the United States. See also Neaderkouscr v. Sf(ff(', :28 Ind., 2()(); (^ooley, (\)nst. Law, ]). 20. January 2J, 1829, the Ijegislature passed an act entitled ‘An Acd relatives to navigable streams declared highways by the ordinance of (\)ngress of 1787.’ Acts 1829, p. 79. It was there provided: ‘ Uvery person or persons who shall erect or keep, or who have erected and shall continue to keep, any mill dam or other arti- ficial obstriudion across the bed or channel of any stream or river which is navigable, and the bed or channel of which has ]iot been surveyed and sold as land by the United States, shall, upon conviction by indictment, be fined in any sum not less than $3 nor more than $500 for every week when such ob- struction may be kept and continued. ’ Even as late as 1850 the Legislature passed an act authorizing William MoDowell, of Adams County, to erect a milldam across Wabash Kiver, in said county. Local Laws 1850, p. 175. This act provided that said dam was ‘not to exceed six feet in height, with suit- able slope or lock so as not to interrupt the navigation of said river, when the river is in the proper state for the same.’ In Dmvson v. James, 64 Ind., 162, it was held that the W^abash Liver was a navigable stream, the bed of which had never been surveyed or sold. Courts take judicial knowledge of the geograxJiy of the country, and hence judicially know tliat Wa- hash and Miami counties are less than 400 miles distant from the month of the Wabash Liver. We also judicially know that the cities of Wabash and Peru, and other towns in said coun- ties, are situated on the banks of such river.” Wisconsin. Attorney General v. The City of Eau Claire, and Others, 37 Wis., p. 400. That was a case where the Legislature of Wisconsin l)y the ad of 1875 had assumed to authorize the City of Eau Claire to build a dam across the Chippewa Liver, within the limits of the city, to construct ivater ivorks; to establish water rents and ])rovide for the collection thereof. It required the city to construct booms and piers in the slack water time for protecting the navigation of the river, and for sorting and sawing up the logs. It authorized the city to lease the water power of the dam for manufacturing purposes except so much as might be needed by the city for hydraulic purposes, and to lease the piers and booms, and fix the rate of booming and storage. Section 4 re(iuired tbe dam to be constructed with a lock for 850 sl(‘ainl)()ats, and a chute for logs and lumber, and the act required an (he(‘tiou to acce})t the work, and in the case of such acceptance, authorized the issue of bonds by the city in aid of the work and pi'ovided for their ]>aynient out of the revenue of the work and a tax to supply all deficiencies. On the information by the Attorney General, the court held that these several powers were distinct and independent powers, and that the power to erect and maintain the dam not being dependent upon any public use, the city took no authority under the act to build a dam across the river or to borrow any money or to levy any taxes. The Court then says (Kyan, C. J.) : ‘AYe have already intimated that we are indis})osed to ex- tend the original jurisprudence of this court to cases of en croachment on local highways. As Stow, C. J., says, it is dif- ficult, in considering such things, to conceive what is not local in some sense. But in considering what is or what is not local for the purpose of jurisdiction, we should surely distinguish between a thoroughfare by railroad, of common interest to all, and an alley in some municipality known of few only. And there may be highways by water, local in this sense. But navigable waters leading into the Mississippi and St. Lawrence constitute a peculiar class of highways, which cannot be con- sidered local for jurisdiction. They are not merely highways. They are a trust from the federal government to the state, ac- cepted by the state, which the state is bound to keep as com mon highways forever free to the people of the state and of the United States. Ordinance of 1787, Art. .IV; Act of Con- gress, April 20, 1836, Sec. 12; Act of Congress, August 6, 1846, Sec. 3; Const., Art. IX, Sec. 1; Pollard v. Hagan, 2 Howard, 312; W. R. I. Co. V. Lijom, 30 Wis., 61. ‘AVhat are properly local highways in the sense we have been considering, are generally within the limits of one munici- pality, existing under its authority, in charge of its officers. These may generally be left in the protection of local authori- ties, and local jurisdictions. Public rivers are highways by no local authority and are rarely, if ever, within a single municipality or in charge of its officers. They are in charge of the state, and the state cannot abdicate its charge of them. That cliarge is a duty to the federal government, and a trust for the whole people, not of the state only, but of the several states. An unauthorized encroachment upon any of them is a violation of the duty assumed by the state, in its aggregate and sovereign character, to keep them forever open. Every such encroachment is a pourpresture, which concerns the sov- h:)\ oroi^ii prerogjitivo of the slate, and the pi'er'o^ati v(* jiirisdi(‘- tion ot* this eoiirt. Original jurisdiction of such (aises h(n*e is too nianifest for disciisison. “ddie (|nestion does not arise what works tlie legislature ('an, under the (‘onstitution, 'authorize in or over navigable waters. Neither does the (jiiestion wlietlier, under a valid statutory power, providing against material obstruction, an injunction could properly go against the work autborized upon a mere averment in advance that it would unlawfully obstruct navi- gation. Because the statute of 1875, in our view, is inopera- tive either to give any power or to impose any restriction upon the city in relation to the dam in question. In our view of tlm statute, if the city should proceed with the work, it would dam a public river within tiie constitutional protec- tion, without any statutory authority or statutory limitation. If the city do not take the power, it is not bound by the con- ditions of the powder. It would act outside of the power, and without power. We must consider the proceedings as if Gh. 333 of 1875 had not been passed. And it is impossible not to regard an undertaiking to huikl the dam as an nnlaicfnl attempt to ohstrurt the navigation of the river. ‘‘The actual navigation may he little, and the obstruct ion might he slight. So the affidavits tend to show. But neither the right nor the rvrong is a question of degree. We cannot listen to one about to put an unlawful work in a ])uhlic river, that it will not materially obstruct navigation. If the obstruc- tion he undertaken, without valid authority, it is our duty, in a proper case, without counting convenience or inconvenience, to interpose the prerogative writ of the state to secure the pre! rogative right of the state from infringement. ‘‘And it is proper to say here that, if the court take juris- diction of the information on this ground, it tvill not ignore the other branch of the case, although that was insufficient to give jurisdiction. The general rule is familiar, that a court of equity, when it has taken jurisdiction of a matter for one purpose, will give the remedies ])roper to it for all purposes.” A ttorney (teneral v. City of Eau Claire, 40th VVis.. }). 533. “We held in the former (uise. Attorney General v. Eau Claire, 37 Wis., 400, that the statute then before us, (3i. 333 of 1875, authorized the erection of a dam at public (mst across a navigable river, either for the ])urpose of water works for the city, or for the purpose of leasing the water power for private purposes; and that so the power was alternative and optional, either for a public or a private use, and therefore void. “Since that decision, and o])viously in view of it, the legisla- lature has amended the statute of 1875 by Ch. 231 of ISIO. And the amendment so clearly and emphatically makes the power to construct the dam dependent on the power to con- struct n'dicr n'orks^ and limits tlie x)ower to lease the water power to the excess not required for the water works, as to ])lace the power beyond criticism in that respect. “The averment is therefore directed, not against the execu- tion of the power by the authorities of the city, hut against the power itself as granted by the lepslature. We did not understand counsel as seriously questioning the right of the legislature to authorize the erection of a dam, on a navigable river*, not materially obstructing navigation, for a public pur- pose other than the improvement of the navigation. (Citing authorities). We therefore need not consider that question.’’ iNriXNhkSOTA (1852). (That portion of Minnesota east of the Mississippi was part of the Northwest Territory governed by the ordinance.) Castner v. Steamboat Dr, Franklin, 1 Minn., 73. [Mississippi held navigable — ^Steamboat plying therein and in slough thereof, held liable in attachment for damages to a raft boomed in slough. Case gives peculiar discussion of Ordinance of 1787 ; says it was confined to waters leading into' Mississippi and St. Lawrence, and did not apply to those two rivers themselves ; and owing to foreign control (Spain commanded the mouth of the Mississippi) — so that the United States had no authority by a “new declaratory act to impart to those rivers any such quality or any higher or lower one.” The court (Meeker, J.) further says (pp. 77-8): “But we think the language of the ordinance is not suscept- ible of such a construction, and as already stated, does not embrace the Mississippi. Does then the common law apply arbitrarily in reference to this subject, and are we to be bound by it in the decision of this case? Or shall we assume that, owing to the conceded navigability of the Mississippi, and the palpable absurdity of considering it a private stream, that in this respect the common law is not applicable to our local situa- tion? This has been the course of the Supreme Courts of the States of Pennsylvania and South Carolina, and perhaps some others. See Carson v. Blazer, 2 Bin. Bep., 475; SJiunk v. Schuylkill Navigation Co., 14 S. & Rawle, p. 71; Cates v. Waddington, 1 McCord Eep., 580. See also 3 Devereux (N. C.) Rep., 79. From the view, however, we have taken of the law in this case, we have not deemed it necesasry to declare judici- ally, that the in’inciple of the common law we have been dis- cussing is not applicable to our situation. “M^e think from the policy of our Government, evinced in Ilie administration ot' its public land system, and the re[)eated lei^'islativo I’ecognitions thereof, the national legislature lias (‘learly enough controlled and limited the common law in re- gard to this subject. In tlie disposition of tlie public domain it has from the beginning reserved the Mississippi and tlie soil it flows over from its surveys and grants. The surveyors in its employ have always hounded their plats by the meander- ings of its hanks, and its patents liave been issued to in- dividuals only to the same extent. It is obvious that what has not been so let to and vested in individuals, still remains in the Grovernment, for the use of the public which that Government rei3reseiits. The conclusion, then, we have come to is, that the Mississippi is in law, as in fact, a navigable river — and that all navigators and craftsmen of whatever description thereon, enjoy the same rights and are entitled to the same exemptions, that they would have had on rivers navigable at common law, among^ which is the right to land freight and passengers and to receive the same on its banks, and this privilege extends to high water mark.” XII. NO PERMIT 01^ APPROVAL OF THIS PROPOSED DAM WAS EVER GRANTED BY EITHER STATE OR FEDERAL GOVERNMENT. IT VIOLATES THE ACT OF CONGRESS OF MARCH 3, 1899, REQUIRING SUCH PERMIT AND APPROVAL. (30 U. S. Stat. at L., 1157; 3 U. 8. Gomp. St., p. 3510.) Tlie AVar Department declined to give any ])ermit therefor. Letter of Acting Secretary of AVar (Abst., ]). 1301.) Testimony of Gen. McKenzie, Chief of U. S. Engineers (Abst./pi). 175, 280.) DIVISION FOUR DIVISION FOUR. Errors p^y the Trtal (\)tjrt. ERRORS TN THE DECREE. Our discussion of the merits has left us no space for a review of the proceedings in detail. The assignments of error are each and all of them insisted on. 1. The court plainly erred in dissolving the injunction (Assign- ment 3), and in not decreeing a permanent injunction (id. Nos. 4 and 23), and the removal of the structure already placed in the stream (id. No. 24). The court erred in dismissing the Information (id. Nos. G, 7, 25 and 26). That the court erred in these res])ects necessarily follows from the law heretofore ])resented. 2. Tlie court erred in not finding and de(‘reeing that each and evei'y of the contracts by the (hinal Commissioners set up in the Information was void (Assignments Nos. 5 and 8-19). 2). The court erred in not finding and decreeing that the i)ei'- petual fiowage conti*act, ‘‘Exhibit A” was vo/d and without right in so far as it assumed to grant a right to do the acts and main- tain the works therein mentioned in ])erpetuity (/V/. No. 12). 4. As to “Exhibits 1> and in not finding and decreeing th.at each of the same was void, in so far as it assumed to confer any right in excess of the original term of 20 years (id. Nos. 13-17). 5. The court erred in not finding and decreeing that the Slate owned the bed of the stream at the site of the dam in Section 25 (id. No. 20). 6. Th.e court erred in not finding and decreeing that the Des Plaines and Illinois Rivers are navigable streams, (id. Nos. 21 - 22 .) s5(; |)r()j)()sit ions ai-e (lis( iissed in dolail in tlio proceeding- i)or- tion of tli(‘ brief and arginnenl. ei-rors of Hue (‘ourt in admitting and excelnding evidence are eai)able of eoi-reetion here, ddiis court can treat as admitted the evidence, so far as preserved in tlie (certificate, which was offered and excluded; and it can, on the otlier hand, disregard and exclude tlie evidence which was ei*roneously received. But these errors indicate tlie unconscious, inadvertent tendency of the court ])elow, which was to rule strictly adverse to the State as if this were an indictment. And they show that tlie court erred in judging the weight of the evidence. By adding the excluded evidence to that received the preponderance for the State becomes clear. II. ERRORS TX EXCLUDING EVIDENCE. 1. The court erked in striking out the historical reputation AND tradition EVIDENCE AS TO THE USE OF THE RIVER. The motion by the defendant to strike out is found in the ab- stract, pp. 955-7, and the ruling is found on abstract pages 1223- J23S. The best evidence rule is a rule both of requirement and of in- dulgence. The best evidence that the nature of the case affords is required, and the best evidence that the nature of the case affords is competent. Omycliund v. Barker^ per Lord Hardwicke and per Willes, J., 1 Atkins, 21. 3 Blackstone’s Commentaries, 368. Burke’s opening argument in the trial of Warren Hast- ings (11 Burke’s Works, Little tk Brown’s ed., p. 77). Best on '‘Evidence,” Section 295. The rule is thus stated by Mr. Wigniore, 2 IVigniore on Evi- dence, Section 1582, under the general lieading: "Exceptions to the Hearsay Buie: Beputation About Land-Bights”: 8:>7 LAND-P.orNDAKlKS AN!) La N !)-( ’ I \ST( ) M S. 1. Till’: NFAJKSSn’Y IMilNCMlMiF. ^17)8:^. Maitfr must i’»F ANciFNT. In lli(i (ifTort to put a iiinit to the use of repiitation-ovidence, and to phrase the con- ditions of necessity in which it could be resorted to in default of better evidence, tlie element of anticpiity came to l)e made the fnndamntal characteristic of this branch of the Exception. When the phrase about ‘])est evidence’ began to he invoked {ante, ^1173), and its corollary was referred to, that the ‘best evidence’ might 1)e dispensed with if it could not l)e had, one of the specific rules sometimes associated witli it was the present one; that is to say, in ancient matters of certain sorts the ‘best evidence’ obtainable was reputation-evidence. An ‘ancient’ matter would ordinarily be a matter upon which no living witnesses haAung personal knowledge were attain- cd^le; so the reputation is often predicated as coming merely from deceased persons, or deceased old persons. The phras- ing varies loosely; Imt the common idea is the same, namely, that it is to be the reputation of a past generation, and thus is to deal with a matter of which there can be no witnesses of the present generation having a personal knowledge.” Here ^Mr. Wdgmore (juotes : “1810, Swift, C. d., Evidence, 131: ‘The law has there- fore wisely rejected all hearsay evidence, excepting where it is impossible in the nature of things to obtain any other. * * * This ha})i)ens in matters of long standing, where the witnesses who were knowing to them are not in being. Such are * * * the ancient boundaries of land.’ 1800, Selden, J., in ]\I chin non v. lUiss, 31 N. Y., 318: ‘The fact sought to he ))roved being of too aiuhent a date to be proved by eye-witnesses, and not of a character to be made a niatter of ])ublic recoi’d, unless it ('ould be ])roved by tradition tliere would seem to be no mode in which it could be estab- lished. It is a universal rule, founded in necessity, that the best evidence of whi(‘h the nature of the case admits is always receivable.’ Tn the ITnited States the (piestion. (‘ame up most frequently with reference to lioundaries of land, and the s])ecial neces- sity of re])utation-evidence in such (‘ases was often noticed: 1797, per enriam, in Mont(f()}nery v. Dieley, 3 Yeates, 313: ‘Tt must be obvious that when the country becomes clearecT and in a state of im])rovenient, it is oftentimes difhcult to trace the lines of a survey made in early times. The argu- ment ex neeessitate rei will therefore ajiply.’ 1837, Tucker, C. J., in Tlaniman v. Broirn, 8 Leigh, 707 : ‘Questions of boundary, after the lapse of many years, be- come of necessity (piestions of hearsay and reputation. Eoi* 858 hoiiiidarios are arlificiai, arbitral y, and often ])erisliable ; and when a generation or two have passed away, they (ainnot lie established by tlie testimony of eye-witnesses.’ 1855, IhvLTZKiJ., (\ d., in DdfjfjeH v. Willey, (> Fla., 511': ‘Re])ntation or iieaisiay, taken in connection witli other evi- dence, is entitled to respect in (aises of lioundary wlien the la})se of time is so great as to render it difficult, if not im- possible, to prove the boundary by the existence of tlie primi- tive landmarks or other evideiu'e than that of hearsay.’ The repdidiioH offei'ed must also be ancient, i. e., of a [last generation. (5) if the reputation is sliown by means of the retiorted statements of individuals {post ^158-t), the persons whose statements are rejiorted must be shown to be deceased. '1. THP:: CIKCUMSTANTTAL GUARANTEE OF TRUST WORTHINP^SS. ^1588. (General principle, He]mtation as Trustwortliy. The element liere Ojierating to supply a fair degree of trust- worthiness is the third alieady notic^l {diife, ^1422), namely, the consideration that the ])rolonged and constant exposure of a condition of things to observation and discussion by a whole community wall in certain cases sift the ])ossib!e errors and will bring tlie resulting belief down to us in a residual form of fair trustworthiness. These conditicns are usually found wdiere the matter is one which in its rmture affects the common interests of a number of persons in the same locality, and tliiis necessarily becomes the subject of active, general, and intelligent discussion; so that whenever a single and definite consensus has been reached in tlie sliape of common reputation, it may be supposed to have considerable evi- dential value. * * * * * (§1584.) * * * "ppg common form of question put to a reputation-witness was: ‘What have you heard old men, now deceased, say as to the reputation on this subject?’ The judges constantly siieak of ‘reputation from deceased per- sons.’ Thus, thoiigli in form the information may be merely wdiat deceased persons have been heard to say about a cus- tom, yet in effect it comes or ought to come from them as a statement of tlie re])utation. (§1586.) * * * rough-and-ready test, we may thus say that the matter should lie one of public, or yeuerdl, or public dud gencrdL hit crest: and this is the common phras- ing; though it varies thus looselv. But this is still only a rule of thumb. To decide difficult cases it is necessary still to seek the living principle, and ask anew whether the matter is of such general interest to the community that by the thor- silling of at'tivo, ('onslant, and inlolligcnit discussion a fairly tnislwoidliy ro])iitation is likely to arise. 1895, SEVMOua, ,1.. in liobivFon v. Deirhrirst, 15 (k C. A., 4()(); ()8 Fed., od(): ‘Tlie exception raises a (piestioii regard- ing tliat exception to tlie general rule excluding liearsay evi- dence wliicli permits such evidence to he given, under cer- tain limitations, in cases of ancient boundaries. Tlie excep- tion, as it originated in the English courts, was confined to such boundaries as were matters of public concern, and was part of a larger exception to the rule. On (puestions respect- ing the existence of manors; manorial customs; customs of mining in ])articular districts; a parochial modus; a boundary between counties, parishes, or manors ; the limits of a town ; a right of common; a prescriptive liability to rei)air bridges; the jurisdiction of certain courts, — matters in which the, public is concerned, as having a community of interest, from residing in one neighborhood, or being entitled to the sar^e privileges, or subject to tlie same liabilities, — common reputation and the declarations of deceased persons are received, if made, ante litem niotam, by persons in a ]iosition to be ])roperly cognizant of the facts.’ (Foot note.) In the following additional cases reputation- evidence was admitted: 1899, Evans v. Meythyr Tydfil, 1 Ch., 241 (whether a piece of land was subject to commonable rights) ; 1901. Klinker v. Schmidt, 114 la., 685, 87 N. W., 661 (street boundary) ; 1888, State v. Vale Mills, 68 N. IT., 4 (the former line of the road which the iilaintifF was charged with obstructing) ; 1874, Cox v. State, 41 Tex., 4 (county lines) ; 1824, Ralston v. Miller, 8 Rand, 49 (street lines). # * # * (§ 1587) * * * Ij] tli0 ITnited States the result has been otherwise. The earliest English practice had clearly been to admit reimtation as to ]irivate titles, and it is therefore nat- ural to find, on questions of ])rivate boundary, that reputa- tion was regularly admitted without question in the early American cases. Then, when the English cases of the early 1800s became known to our judges, and the (piestion was ar- gued on its merits as a matter of principle, the decision was reached— entirely in harmony with the conditions of life at the time — that the rule ouglit to admit reputation-evidence of the landmarks of ])rivate title: 1887, Tucker, J., in Harriman v. Broirn, 8 Leigh, 708: ^Re- cause we have not manors, shall we therefore lose the benefit of the rule which considers boundary as matter of i*e])uta- tion and permits hearsay evidence of its locality? Ff a like state of things exists among us, if the principle will be found to apply in its utmost strictness, shall we reject the evi- 0 (l(‘ii('(‘ l)(*(‘aiis(‘ the (Mse is not identical? l>y no means * * ( Artec (|iioting l.ord Kenyon’s language, supra.) If rep- utation is admissible to establish tlie boundaries of a manor because all tlie tenants of a manor are interested therein and naturally conversant about tlie boundary, and may be presumed to discourse together about it, what shall we say in the case of our wild lands, which were covered with early adventurers whose chief concern was to make themselves ac- (juainted with the lines and corners of all around them! * * * Kvery one knows that such subjects were not only the familiar topics of conversation, but that they were the all- absorbing topics. I will venture to conjecture that for one discussion in private conversation about the boundaries of an Kngiish manor, there have been a hundred animated and interested debates about the situation of a corner tree in our western countries. I take it therefore that every motive for the admission of hearsay testimony as to boundary in case of a manor applies with equal force to its admission in questions of boundary with ns.’ 1860, Field, C. J., in Morton v. Folger, 15 Cal., 279: ‘In this country the admissibility of this kind of evidence * * has been uniformly maintained when the tract originally surveyed was large, and was subsequently subdivided into nu- merous farms, the boundary of the original tract serving as a boundary of the several farms. In cases of this kind, the principles upon which the evidence is received has been re- garded as similar to that which relates to boundaries of a manor or parish.’ ***** (§ 1593, 1801, Foot-note 4) 1882, Neill v. Duke of Devon- shire, L. R., 8 App. Cas., 147 (Selborne, L. C.) : ‘Such evi- dence, admissible in cases in which evidence of reputation is received, is not itself in any proper sense evidence of repu- tation. It really stands upon a higher and a larger prin- ciple, especially in cases like the present, of prescription; ^ * It comes within the category of res gestae and of declarations accompanying acts. * * * Tpg effect of this evidence * * * is extremely strong to establish a state of possession and enjoyment of the fisheries;’ Lord O’Hagan: ‘I think the proceedings were admissible, not as evidence of reputation, which I agree they are not, but of something higher and better than reputation, * * * of the posses- sion in fact at the time of the bills being filed of the several fishery * * * Evidence of acts and proceedings ivitli reference to the river generallg — the leases, the covenants and reservations, the actions, the judgments, the licenses, and the successful assertions of right under the patents — was prop- erly admitted.’ 861 . {>5 1596) 1>. P]veiits ol* (xeiioral llistoi'y. The g(MUM*al ])riiK‘ipIes of tins l)ranoli of the (‘X(‘oi)tion do not differ niaterially from those of the prec^eding one; but the line of ])recedents is a separate one, and the seope of a[)plieation is in some respect broader; so that it seems niorci })rofital)Ie to regard it as a distinct branch of the excey)- tion. 1597) Matter must be ancient; statutory regulation. Tlie principle of necessity, allowing the use of this class of evidence, is the same as that already examined (ante, § 1582), namely, the matter as to which the history or other treatise is offered must be an ancient one, or one as to which it would be unlikely that living witnesses could be obtained. In other words, it must be a matter concerning a former generation. ^ ^ ^ (§ 1598) * 1847, Sanford, V. C., in Bogardus v. Trinity Church, 4 Sandf. Ch., 724: ‘The statements of his- torians of established merit * * * are from necessity re- ceived as evidence of facts to which they relate * re- stricted to facts of a yiublic and general nature.’ 1599, Footnote 1) Other examyiles are as follows: Eng- land: 1672, St. Katherine’s Hosy^ital, 1 Vent., 151, (‘It was shewn out of Syieed’s Chronicles y^u'oduced in Court, that at that time Queen Isabel was under great Calamity and Oyo- pression, and what was then determined against her was not so much from the Right of the Thing as the Iniipiity of the Times’) ; 1682, Bronuker v. Atkyns, Skinner 14 (‘Speed’s Chronicle was given in evidence to ])rove the Death of Isabel, Queen Dowager to E. II ; and though Maynard seemed to o])y)ose it, and Dobbins said it was done by Consent; yet the Chief Jus- tice said he knew not what better Proof could be made. And Wallop said that in the Lord’s House it was admitted by them as good evidence in the Lord Bridgewater’s Case’); 1684, L. C. J., Jeffreys, in Lady Jvy’s Trial, 10 How. St. Tr. 555, 625 (rejecting a history offered to show the date of Charles V’s abdication and Philiy) and Mary becoming king and (pieen of Spain, over a century before: ‘Instead of records, the uyi- shot is a litle lousy history ^ * y^ a y^rinted history, writen liy I know not who, an evidence in a court of law!’); 1718, Proceedings respecting the Education, etc., of the Royal family, 15 How. St. Tr. 1202, 1203, 1206, 1209 (the Judges drew up an opinion upon the King’s prerogative in the matter, and cited precedents on the exercise of the preroga- tive from Rymer’s Poedera, Lord Clarendon’s History, Cot- ton’s Record, Kennett’s History of England, Burnet’s His- tory of the Reformation) ; United States: 1834, Marguerite v. Chouteau, 3 Mo., 540, 555 (l)iiPratz, Harlfe Marbois and others’ works consulted as 1o tlie existence of slavery of Indians in America in the 1700s; 1830, Co. V. Alburger, 1 Whart, 409, 473, (a letter of William Penn confirming a certain grant; its mention ^in Proud and various other historical works’ treated as sufficient, the matter being ancient) ; 1809, Baird v. Rice, 03 Pa., 489, 490 (in determining the ancient plan of London’s streets, etc., so as to interpret Penn’s ])lan of Philadelphia, the following works were consulted; Maitland’s Histoi’y of London, 1754; Bohn’s Pictorial Hand- book of London, 1854; Great London Directory, 1855); 1811, lladfield v. Jameson, 2 Munf., 53, 71, per Tucker, J. (Edward’s History of the West Indies, used to show the gov- ernment of Plispaniola).” (Wigmore on Evidence, Vol. 11, pp. 1933-1947.) See also as to reputation and tradition evidence: 1869, Ringhouse v. Kelner, 49 111., 471. Testimony of friends that ^diis death was announced in the newspapers and he was spoken of by his acquaintances as dead.” Onondaga Nation v. Thatcher, 29 N. Y. Misc., 421; 61 Y. Y. Supp., 1027. ^‘Morgan’s League of the Iroquois” received ''a subject of special history should receive evidence of such special history.” Birmingham v. Anderson, 40 Pa. St., 506. Fisher v. Carter, 1 M^alh, Jr., 69; 9 Fed. Gas., 4815. THE DES PLAINES RIVER IS A LAND BOUNDARY AND HIGHWAY. It has all the physical characteristics of a line and boundary, extending through the land and dividing ownership of one from another. This river is itself a houndary between Cook County and DuPage County, between Lockport and lYest Lockport, and is the boundary of several town sites and plats all the way down the stream. Its use marking it as navigable characterizes it as a higluvay and fixes the houndary hetiveen private and public rights. It follows that according to the strict rule laid down by the authorities assembled by Mr. IVigniore, reputation and tradition 8 (;:{ evidoiuo as to tlio iiso of tlio sti'oani as a liigliway by nnai of tlic* foniier generations is eonipetent evidence. In l) 0 (j(iydus v. Triiiity Church (Sanford’s (^lancery Ileports), tlie leaiaied Vic'e-diancellor, Sanford, speaking in 1847, stated the princi[)les thus (]). 772) : First. The sole possesion of Queen Anne, and her grant to tlie defendant’s corporation on tlie 23rd day of November, 1705. It is to be observed that the plea does not assert that the. Queen was the owner of the farm granted, or that slie had any estate or title whatever. The averment relates ex- clusively to her possession and its character. These are facts of which written evidence can scarcely be expected. Such testimony rarely exists in any case. And after the lapse of more than one hundred and forty years not only is the testimony of living ivitnesses of such facts utterly im- possible, blit even oral tradition respecting them has almost invariably faded aivay in the dim shadoivs of the past. In their search for truth the courts are required in instances like the one under consideration, to receive evidence ivhich ivoidd be inadmissible, if offered, respecting events occurring irithin the memory of living witnesses. Thus, the statements or historians of established merit, the recitals in public rec- ords, in statutes and legislative journals, the proceedings in courts of justice, and their averments and results, and the depositions of witnesses in suits or in legal controversies are, from necessity, received as evidence of facts to which they relate, but always with great caution, and with due allowance for its iupierfections and its capability of misleading, and restricted, as to historical evidence, to facts of a public and general nature. (Bullen v. ]\lichel, 4 Dow’s Pari. Cases, 297, 323, 324)” (House of Lords 4819). The case is stated by the learned reporter thus: ‘‘Ap])eal from the e^piity side of the Court of Fxchecpier. The respondent, Michel, is vicar of the parish of Sturminster Newton, in the County of Dorset; and the appellant, Bullen, is the occupier of Bagber farm in that ]iarish. The (juestion is, wliether a certain yiayment in lieu of small tithes for that farm is or is not a modus. Michel, as plaintiff below, claimed tithes of Bullen, the defendant below, who set up moduses, ancient customary payment in lieu of tithes. At a second trial of an issue ordered to be tried at law, after evidence tending to prove the appellant’s conten- tion, the respondent produced several documents to show that the ])ayments were so large that it was incredible they could liave been made so far back as the time of legal memory. Then nil (‘xtract from J)()iiiesday 'Book was read, to sliow the state ot‘ the parish, and the value of laud tliere at the time of that survey. It was found that tlie elmreh of (jlastouliury held the Ilia 7101* of Newton. In oi'dei* to iutrodiiee what was ealled the Chartulary, a seaix'h was ])roved in the Bisho])s of Bristol and Salisbury’s I\egisti*ies for tlie original endowment, or a record of it, and that none was to he found. Tliomas Davis, steward of the Mai*({uis of ]>atli, produced tlie liook, called the Chartulary, from tlie muniment room of the Marquis, who was proprietor of certain lands which had once belonged to the abbey, though he had none in Sturminster Newton. This book, together with entries relative to the rights of the abbey, contained a great deal of miscellaneous matter, including several idle stories; such as an account of the giants who originally in- haliited the British island, a genealogy of the kings of England, beginning tTom Adam, something de pondere lanae, a cal- endar a list of bulls and licenses, etc. Then, after an entiy of the date 1333, came the entries, without date, relating to the appropriation of the recotry and endowment of the vicarage of Newton. * Then the several articles, with the an- nual value of each, were separately stated, from wliich it ap- ])eared that the net annual value of the vicarage was, at the time of the entry, L9 12s bjd. There was no mention in it of any money payment in lieu of tithes. A witness proved the handvvndting to be of the time of the 1st, 2d, or 3d Edwards, or about the end of the 13th or beginning of the 1-lth cen- tury. The taxation of Pope Nicholas (afterwards mentioned) proved’ that the endowment itself must have been made before 1291 ; and the judge, having overruled objections which had been urged against the reading of the entries, stated to the jury that the entry appeared to be contemporaneous with the endowment, and was material evidence, as raising the inference that such a money payment as that now contended for could not then have existed. Thayer’s Cases on Evi- dence,” pp. 442-3.) The evidence is held rightly admitted, the opinions being l)y Lords Pedesdale (Mitford) and Eldon. Eedesdale said: “They are evidence of reputation as to matters where no other evidence could be had to rebut the presum]>tion raised by the other side ; for it is merely a presumption. * ^ This then is the next best evidence, and perhaps evidence still more inferior might have been admitted if this could not have been produced.” (Thayer’s “Cases on Evidence,” p. 446.) In BogarduH v. Trinity Church (Sanford’s Ch. lie])orts), evi- dence of this character was received on both sides subject to ob- jection. The [)rc‘liinin{iry stntoinenl by the Vi(*o-(biaii(*(ilk)i* shows tliat ilio objoctions wore all (‘oiisidered as roservod and wei^ijbed. Among tbo ovidenoe that was roceivod by the court wci’(‘: ‘‘An ancint engraved map of the city, exhibiting New York in 1()95 (id. "T)53.) INfaerschalck’s ‘Ylap of New York, 1755,’ id. Smith’s ‘History of New York,’ London Ed. of 1757,” id. The defendants also put in Lieut. Ratzen’s “Plan of the City of New York,” made from the survey of 1767; 620 leases from the Trinity Church to different persons, between 1768 and 1831. For the complainant Elizabeth Bogardus testified that “she and her husband came to the City of New York in 1784, on a visit to his father, who then lived in a frame house on the south or lower corner of Chambers street and Broad- way. Cornelius B. spoke of the house and the land he lived on, as being part of the land inherited by him, and the other heirs of Anneke Jans, commonly called at that time by him and others the Dominie’s Bowery and the Dominie’s Hook, which extended northwardly from Chambers street, she does not re- member how far.” (Id. *689-90.) ^ * “Cornelius B. sold clay from a clay pit, situate betwixt Peade and what is now called Thomas street, and near Hudson street. His claim to it was notorious, and it was always talked that it belonged to him, and no one disputed it. He made them pay a shilling a load for it, and sued some who did not pay, and collected from them.” (id.) * * * * “Cornelius B. said his taking ])ossession of that ])iece of land, was the same as taking ])ossession of the whole land which the heir claimed as heirs of Anneke Jans.” (id. 692.) (Note: The complainant’s depositions were taken subject to all objections to the questions and evidence which might he proposed at tlie hearing (id. *694). * * * * * “That a Mrs. Broad entered upon and took possession of a piece of ground near North Moore street, called the Fort, claiming to own it as one of those heirs. There was a sort of breastwoT'k and trench, and a house within it. She drove away people who came to take eai'th from the banks of the fort, by throwing boiling water on them. She kept possession undisturbed, from the time the British left till 1787 or 1788, claiming as such heir.” (id. *692.) ^ HJliaj)iiiur})oses of this (luestion [ shall assume, that the plaintiffs had made all the search for the original grant of letters ])atent which the law rcapiires; tliat they were not bound to resort to the government rec'ords in London, and that the proof on that subject was sufficient, to entitle them to give secondary evidence of such gi'ant. If then the evi- dence given on that snbje(‘t, taken in connection with facts and circumstances of which the court was authorized to take judicial notice, was sufficient to show prhna facie that the grant or y)atent in question had ever existed, the nonsuit was wrong, and the judgment should be reversed. The only evidence actually introduced iqion the trial, hav- ing any bearing upon the (piestion, consisted in the recitals contained in the will of Sir AVilliam Johnson, and the two acts of the legislature passed respectively in February, 1797, and March, 1798. No other evidence was given or offered. Juivilig any tendency to establisli the existence of the patent; unless some sliglit weight he attached to the fact stated by .Mr. h'ord, that there is a tract in Herkimer county, known as the Jloyal (Irant. To establish that such a grant was made, therefore, the counsel for tlie ])laintiff relies: First, upon the recitals in the will. Secondly, upon the two statutes read in evidence; and thirdly, upon the ijublic history of the period in which Sir Yvulliain Johnson lived, and especially upon a nianuscrii)t memorird addressed to the King, and dated in ]77(), published in the Colonial History of this State (Vol. 7, p. 839), in which Sir William prays for a grant of the tract in question, of which history, memorial, etc., the counsel claims the court should take judicial notice, (p. 210.) ****** The plaintiff’s title, therefore, derives no support from the ])roof actually given upon tlie trial ; and it only remains upon this branch of the case, to see vHiether the historical evi- dence relied upon is sufficient to establish it. There are several A-ery conclusi\’e objections to this evi- dence. In the first place, it Avas not introduced or offered upon the trial. There are no doubt cases in which courts, upon (questions addressed to them, may take judicial notice of matters of genei*al history and of public and universal notoriety, which admit of no dispute. But upon the trial of issues of fact by a jury, if reliance is placed upon any matters of this sort, some eAudence of them must be adduced. In alf the early cases on the subject, the liistories relied upon were })roduced at the trial. ****** Another objection to this evidence is that Benton’s History of Herkimer County, from AA'hich most of the facts relied upon are drawn, Avould not liaA^e been admissible in evidence if offered upon the trial. First, it is doubtful whether any historical Avork can be read in evidence, while the author is liAung, and can be called as a witness to state the sources of his knowledge. {Morris \\ Lessee. Ilarmer’s Heirs, 7 Peters, 554.) Anotlier objection is, that it Avas not a general but a mere local history. In the case of Evans v. Getting (6 Carr & Payne, 586), where the ouestioii was as to the boundaries be- tween tAvo counties, the plaintiff )3roposed to read from Xichol’s History Brecknockshire. The writer of this history ])rol)ably had the same interest in enlarging the boundaries of the county, as any other inhabitant of it. It is not like a general history of Wales. I shall not receive it.’ Tt may AAuth equal propriety be said here, the writer of Benton’s His- tory may have had an interest in establishing the title to the Poyal Grant. This kind of evidence is only receiA^ed from necessity, and should be strictly guarded. 87:j i^iit a iHoro (*A)iieliiHive ohjcH'lioii to any Jiuna^ hist()ri(!al evi- (lonco ill this (^aso ivS, that siioli evidence is only adinissilile to prove facts of a general and piil)li(‘ nature; and not those wliicli concern individuals or mere locail communities. In tlui case Si ahics v. Ihirgesses of Froihcitch (1 Salk, 281), (kim- den’s Brittania was offered in evidence upon a ipiestion as to the custom of Droitwitcli *, but tlie court refused to receive it, liolding that ^a general history might be given in evidence to prove a matter relating to the kingdom in general, because tlie nature of the thing requires it, but not to prove a par- ticular right or cusiomd So in the case of Morris v. Lessee of Harmer’s heirs, supra, the court says: ‘Historical facts of general and public notoriety, may indeed be proved by reputation; and reputation may be established by historical works of known 'character and accuracy.’ So in a late case in this State, viz.: Bogardus v. Trinity Church (4 Sand. Ch. E., 633, 724), the Vice-Chancellor, speaking of evidence derived from public records, statutes, legislative journals, his- torical works, etc., says that it is ‘restricted as to historical evidence to facts of a public and general nature.’ There is indeed no doubt that it is strictly confined to facts of this sort. History is only admissible to prove history, that is, such facts as being matters of interest to a whole people, are usually incorporated in a general history of the state or nation. The historical evidence relied upon, therefore, even had it been offered u])on the trial, could not have been received, with the exception ])erhaps of the memoi'ial of Sir William Johnson to the King, published in volume 7 of the Colo.nial History of the State. I am inclined to think that had a proper foundation been laid for the iniroduction of this docu- ment, by sh.owing, tliat tlie tract known as the Royal Grant had been generally possessed and occu])ied from the time of Sir William’s death, under a claim of title derived from him, that both this memorial and the will of Sir William would not only have been admissible, but sufficient i)erhaps to authorize the jury to ])resunie thaf a ])atent liad been issued pursuant to the ])rayer of the memorial. Bnt such a docu- ment must clearly be introduced upon tlie trial; and could not more be taken notice of without })roof, than the ])atenf itself, if one was issued pursuant to its reipiest. The con- clusion from these views is, that there was no evidence actu- ally introduced upon tlie trial, nor any which the jury had a right to consider, which has any tendency to establish the fact that the grant in question had ever been made.” (21 N. Y., 207, 208, 209, 210, 214, 215, 216, 217.) The case is a miscarriage of justice. The trial court contended S74 tliat siifncieiit searc'li liad not been made. Tliey gave a slirewd guess tliat the original ])atent must have been carried to Canada when Sir AVilliam Johnson’s children bed there, and that there ought to have been ])roof from there or from London. They held that sufficient search had not been made. The Court of A})i)eals held that there had been sufficient search made, but they refused to receive a duly authenticated copy of the patent from London, which had been ])roduced since the trial. Let us hope that the statutory right to a second trial in eject- ment cases was invoked in that case, and that the jdaintiff then was permitted to make his proof. That was a jury case. Benton’s History of Herkimer County’' was not produced at the trial below and was not offered in evi- dence to the jury. The court above, therefore declined to consider what its effect as evidence on the jury might have been. The authority of the case ends there. The court go on and say on the authority of 6 C. & P., 586, that it was not a general but a mere local history. Wigmore says on this: (2 AVigmore on Evidence, Section 1598.) ‘Hn some instances the principle has been applied too narrovvdy, for example, in excluding county-histories, for on certain matters there may be a general and settled county- reputation which will be quite as trustworthy as a national reputation upon national matters. There should therefore be no arbitrary line excluding local histories.” In a foot-note concerning 6 C. P., 586, the author says: ^‘The fault of this decision is that it seems to proceed upon the principle that local interest excludes reputation, — a principle seen ante, §1589, to have been repudiated; the above ruling largely influenced the two ensuing: 1860 McKin- non V. Bliss (rejecting Benton’s History* of Herkimer County) ; 1887, Bo ire v. Strong, 107 id., 856 (rejecting Thomp- son’s History of Long Island).” It is conceded by the authorities there, a sstated by Atr. AAJg- more that (Section 1584) : ”AA"hat is offered must be in effect a reputation, not a mere assertion of an individual, but” — 875 as Mr. Wigiiiore contiiines, — “repTitation is made up of and is often learned through the assertions of individuals, and it is therefore i)lainly neces- sary to distinguish between assertions involving mere in- dividual credit, and assertions involving a community repu- tation.” And he continues: ‘Mn form, the information may be merely what deceased persons had been heard to say about the custom, yet in effect it comes, or ought to come, from them as a statement of the reputation. ’ ’ (For ‘^custom” here, we may substitute boundary^ higJi- luay, or river; for as the author has previously stated, the same principle applies to boundaries and highways as to cus- toms; and the issue here is as to the river as a highway. In every highway (‘ase, it is asserted on one side and denied on the other that the locus was a highway, and the reputa- tion and tradition evidence is directed to the user of the locus. The reputation that there teas such user is compe- tent; and the evidence is more cogent and less diffusive as to a natural river hightvay than as to a highway on land, because the locality of a highway on land as well as the user is a subject of doubt in dispute, whereas in the case of a river highway, the locality is fixed by nature and beyond dispute, leaving only the user as a subject to which the evidence is directed.) The typical case quoted by Mr. Wigmore to illustrate the ])ropo- sition that the evidence must be of reputation and not of in- dividual assertion, is as follows: ^M837, Denman, Ld. C. J., in li. v. Bliss, 7 A. & E., 550 (rejecting testimony that IT, now deceased, had planted a willow in a certain s])ot to show whei'e the boundary had been of a way alleged to be pul)lic) : MIe does not assert that lie has heard old people say what was the public road; l)ut he plants a tree and asserts that the boundary of the road is at that point. It is the mere allegation of a fact by an in- dividual. * * * That is, he knew it to be so from what he had himself observed, and not from reputation.^ ” (p. 1936.) The distinction here is clear. The deceased individual there ^Diad planted a willow in a certain spot to show where the bound- ary had been.” There was no evidence of repute there. Ill the aliseiK'o of additional evidonce tliat tlie boundary as so niarkcal was tlie reputed boundary, lliis rule was clearly correct. The individual had an interest and motive in plantiny the tree to shoir where tlie lioundary was. In the case at liar there is no such element. Tlie witnesses, who testified that they had heard the old men get together and tell over and over again of the salt famine and the boat loads of salt brought down the river from Cdiicago were testifying to repute. They were not telling of an act done by an individual, with a motive to establish a boundary or highway. In the lan- guage of Mr. AYigmore: ‘‘Though in form the information may he merely ivhat de- ceased persons have been heard to say, yet in effect it came from them as a statement of the reputation.” All reputation in the end is made up of the statements of in- dividuals. How many individuals and how many times the tell- ing must be repeated before it becomes reputation is a matter in which each case must be judged by its own circumstances. We submit that the rule is not that the witness must always put his answer into the words: “I am acquainted with the current repu- tation of this question as it existed 60 years ago; that current reputation was that the stream was navigable.” While such a statement as that if it came in such form as to be the natural language of the witness, would be entitled to great probative force, yet words in precisely that form, and only in that form, coming from the mouths of several unlettered men would have less |)robative force than the statements of the witnesses who say they heard the old men get together and tell the story over and over again. The question is one not of the form in which the narrative comes, but of its effect. Is it in effect a statement of repute? If so, it is competent. The court was conscious of this distinction and endeavored to apply it accurately and impartially, l)ut not always with entire success. In short the court erred. An instance of the distinction between form and effect, or s\d)- stance, appears in the deposition of Mrs. Eliza flones. (Abstract, pjn 462-3, ruling 1229-1230.) 877 TIu're the witness w^as asked: “I will ask you to state, Mrs. Jones, whether you have lieard from your fattier and others tlie current re[)utation and the liistory of tlie early days of tlie Des Plaines River, in the matter of shipihng or traveling upon it?” The ruling: ‘‘The Court: The question was all right, hut that is an instance where the ansv/er was 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, up the river. As to merchandise being brought down the river from Chicago, there is only one thing that I remember particularly of his speaking of often, and that was that some man cornered coarse salt in Chicago, and tliat all the way they were able to get it was down the river, and it cost them $10.00 per barrel. I have heard them say that many times; and afterwards, my father and an old neighbor, Mr. Frederick Collins, — the two old gentlemen, used to sit and talk old times and these things I have heard over and over again. He said it was $10.00 a liarrel ; the neighbors had to divide up a barrel, it was so expensive.” The substance and the effect of this was the giving of common repute, and that n'as ndiat the question called for. The court struck it out as hearsay. Now, all common repute is hearsay. The very evidence of the reputation rule is that it is a form of hearsay, or of repeated statements. Hearsay of repute from the necessity of the case in matters of this kind is competent. From the other citations, and from Mr. AVigmore’s treatise, it is perfectly apparent that i}i the United States, the idea that reputation could not be received on local matters, had long been repudiated. McKinnon v. Bliss is contrary to the great weight of authority on this, and in so holding, the court was s]making aca- demically on a question not before the couid. Again, there was no showing there that Benton veas dead. AVe affirmatively ])roved that AVoodruff, the author of “A His- tory of AVill County” was dead. The most important ])oint to which AVoodruff ’s history was cited was his proof of tlie ])ui!ding of the Beard’s Dam in ISJf), and its being washed out the follo^ving spring. (Abst., pp. ) This was an event of gi'eat notoriety. AVoodi'uff had ])een re- 878 (•order oi* the county and one of its earliest residents, and had lectured upon the early history of tlie county l)efore the Will ('ounty Historical Society in a public meeting in the church, to an audience of several hundred people, and then the lectures were published in the newspapers, and repul)lished in the Joliet City Directory,— the only directory of the time which remained in general circulation for several years; and finally Mr. Woodruff wrote his history of the county. These were guarantees of trust- worthiness and public notoriety, l)ot]i of the event and of his ac- count of the event. What is tlie account offered by the defendant as to the erection of this dam? Simply the statement by the witness Enos Field that must have been put in in 1833. They have a nephew in Michigan. He was telling me about this. There was nothing but a flume when I commenced boating in ’54.” (Abst., pp. 599-600.) This statement for the defense was received but the statement of the historian for the State was excluded. Much similar talk was given for the defense, tending to create the impression that Beard’s Dam had been a permanent struc- ture remaining there for a long time, whereas it was, as the evi- dence elsewhere showed, a most crude affair, by scraping together boulders in the bottom of the stream and piling logs and stone in alternate layers thereon, supposed to stop the flow, and of a char- acter most readily washed out, as the historian described. (See description by Cornelius of the Beard Dam. Abst., pp. 1042-3 and by Mills of the Treat’s Island Dam of 1837, Abst., p. 1036.) The other important item in Woodruff’s history, is the descrip- tion of the use of the stream for navigation, that : ‘A\s early as 1834, the products of the farm were boated down the Kankakee to the Des Plaines, 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 Iro- quois, with 300 bushels of oats, 300 bushels 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 Des Plaines, when near Treat’s Island, the boat dipped water and so dampened the grain that they were obliged to unload and try to dispose of their produce at that 879 l)()'ml. At iliat tiiiio seillei’s were arriving’ in that rioi^»lif)oi‘- lu)()(l (juitn rapidly, and tlioy had no Iroiible in disf)()sing of tiled r whole eargo — the oats at 50 and tlie wlieat at 75 eents ])er bushel.” (Woodruff’s ^Mlistory of AVill (5)nnty,” p 607.) It was of this instance tliat the witness Heed testified that liis brother brought home some of tliat wheat and they spread it out on sheets and quilts to dry (Al)st., p. 158) ; and that the witness H. H. Spoor testified: remember hearing of the circumstances. It was current report by men that I believe to be truthful and had no inter- est in it other than that.” (Abst., p. 419.) So the statements of Bowers, with regard to the two boats in 1849-50, loaded with household goods : ‘AVe heard that they came from Chicago and were going down to New Orleans and then to California; that was what the report was.” (Abst., pp. 421-1224.) So as to the testimony of AVightman, when asked to state ‘^The current report and local reputation as to the use of the river in the early days for the rafting of timber?” He said: heard my mother tell several times about the rafts of logs going down the river in the early days, * * * .^nd the men having little shacks for houses on the raft.” (Abst., p. 26.) This was stricken out by the court. So, Kaymond’s conversation with the Indian chief Shabbona, in which Shabbona told him that the Indians used the river both ways, but the white men went down stream, Init not up stream. (Abst., p. 434.) So the statement of Belz: ‘^Mr. Lappin, an old fisherman here, told me they unloaded the boats down here and took the teams and hauled them down the river below the dams and loaded them u]) again. That was when I was a voung man. Mr. Lappin is dead.’^ (Abst., pp. 441-1227.) was excluded. So, in the deposition of Brockway : ‘‘My father came here 25 years before I was born. My 880 fatlior told iii(‘ about taking* a flat boat down the river to Peoria from do1i(‘t.” (Abst., ]). 458.) was (‘xe hided. Tlien the testimony of Mi's. dones, Mr. Jones and Mr. Paddock: “Tliat they had lieard old Mr. Paddock and old Mr. Fred Collins talk togetlier over and over again of the time when there was a ('orner in salt, and salt was lironght down the river l)y ])oat and distriliiited at $10.00 per barrel to the dif- ferent towns.” (Abst.. pp. 462, 3, 5, 9.) 8o in the de])osition of Mh W. Stevens, the statement made to liini by tlie Jessn])s tliat tliey brought lumber down the Kanka- kee and up the Des Plaines. (Abst., pp. 408-1234; 415-16, 1236-7.) And the statement of Fish to him that he had brought whiskey down tlie river on boats. (Abst., p. 1237.) Again, in describing the boats he was asked as to the descrip- tion of tlie boats, and who had described them, and the witness answered : ‘‘Mackinaw boats. I have seen a great many of them.” This (oisirer iras sfricJcen out. (Abst., ]>. 1238.) The court also struck out ‘‘Illinois in 1837” (Abst., pp. 956, 960). This l)ook on the river was produced by the wdtness Hey- decker (Abst., p. 207). It was a book printed in Philadelphia. The preface states that it had been compiled from Pecks’ Gazet- teer of Illinois (which was elsewhere in evidence), from Beck’s Gazetteer of Illinois and Missouri (which was elsewhere in evi- dence), from Schoolcraft’s Travels, and the works of Darby, Hall, Long, etc., and from the Peoria Kegister and Xorth-Western Gazetteer. The accompanying map of Illinois is, for its scale, probably tlie most complete yet published. The book was copyrighted and published by Mitchell in Philadelphia. Frederick H. Hild, librarian of the Public Inbrary of Chicago for 21 years, and employed as librarian ever since 1874, testified (AJist., pp. 640-642), and on critical cross-examination said: “I regard it as a standard authority in this way, that it explains conditions as existed at that time. That was one of the best authorities or sources of information that people had at that time. 881 Alvord said of llio same hook: “This is a hook that was ])Tiiit(Hl to a d(‘sorif)tion of Illinois for tho ])nr})ose of eiicoiirag'in^ iinniigration into tho State in 1887. ddie liistorians I’Ogard this hook as cont(3nrf)o- rary evidence for facts as are stated in it. It does contain accounts of tlie various rivers, etc., and tlie liistorian would regard sncli statements as antlioritative statements of con- temporary men and knowledge. It is an accurate and reli- able hook for matters of fact that are therein stated.’’ On cross-examination, he said: “That he had known the hook for a year, had used it, had conferred about it with a graduate student, who had been re- ferred to it by his colleague, Professor Green of the Univers- ity of Illinois, had seen it cited in Hurlbut’s Ohio, and had con- ferred with Prof. Sparks of the University of Chicago upon it, and had compared it with other historical works in regard to the Des Plaines Piver. ” (Ahst., pp. 719-21.) The court admitted it in evidence (Ahst., p. 722), and struck it out (Ahst., p. 960). It was quoted from, both in the testimony of Heydecker and of Alvord. (Ahst., pp. 208, 722.) The work said with regard to tliis river: “ Ut is only necessary to look on tlie nia}) of this great state, to see what astonishing advantages for inland naviga- tion nature lias given it. On its northern borders it has for some distance the waters of Lake Michigan and tlie various streams that empty into it; and by this vast body of waters a communication is opened with the northern ]iarts of Indiana and Ohio, with New York and Canada. On the northwest frontier it has liock Iviver, a long beautiful and boatable tributary of the Mississi]q)i. On the whole western front it is washed by the Mississipjh, and on its southern by the Ohio. On the east it is bounded by the Wabash. Through its center winds in one direction the Illinois, connecting the Mississippi with I^ake Michigan by the Des Plaines and by the Chicago Pivers: and in a.nother direction the beautiful Kaskaskia flows through the state. Besides these there are great numbers of boatalile streams ])enetrating the state in every direction. Such is the intersection of Illinois by these waters, that no settlement, in it is far from a point of boat- able communication, whether with Lake Michigan, the Miss- issippi, the Ohio or the Illinois.” (Ahst., pp. 208-209.) ****** “ ‘The Desplaines river is the northern head branch of the Illinois. It rises in Wisconsin territory, a few miles west of the town of Jiaeine, on Lake Michigan, and flowing through the north part of the state, it joins the Kankakee at the honndary line l)etween LaKSalle and Will Counties, where they form the Illinois river. The Desplaines, in its course of 150 miles, runs generally over a ])ed of limestone. The country Tilong its hoi'ders is ])opulating rapidly, notwitlistanding the appai'ent deficiency of timber. About forty-two miles above the mouth of this stream is a swamp connecting it with the Chicago river, througli wliich boats of some burden have often been navigated into Lake Michigan. This route was used by the traders as a medium of communication between the great lakes and the Mississippi, from the first discovery of the country by Euro])eans; — tlie circumstance first sug- gested the idea of an artificial connection by means of a canal at this point.’ ” (Abst., pp. 209-210.) The exclusion of this work was error. What Eeputatton Evidence WAs Retained. As we have seen, the court endeavored to apply the reputation rule accurately and impartially. What did the court retain in evidence under this rule? The Jesuit Relations, giving the narratives of Marquette and Joliet (and the same in Breese’s Early History of Illinois), Dab- Ion’s Narrative, the maps by Marquette and Joliet, Hugh He- ward’s Journal, Gov. St. Clair’s Report, Imlay’s Topographical Description, the Treaty of Greenville, ^^The Navigator,” the Pot- tawattami Treaty, Major Long’s Report, Dana’s Description of Roads and Routes, Major Long’s Expedition, Narrative by Keat- ing, Beck’s Gazetteer, Hamlin’s Traffic between Peoria and Chi- cago, narrated in Drown ’s ^‘Historical View of Peoria”; U. S. Report of the 18th Congress, 1825, that it is a matter of historical notoriety that repeated passages have been made by nninterrupted navigation from the river into the lake; Parkman’s account, Win- sor’s “NaratWe and Critical History”, Schoolcraft’s Expedition, Murray’s Encyclopedia of Geography, Smith’s History of Wis- consin, and the decision in the Montello case, 20 AYall., giving a narralive of facts. In addition to this the court ruled that the evidence should stand and be retained which was given by Spoor, — that it was the ciiri'ent report that a boat came up the Des Plaines River carry- 88:j ini>- whoat and dippcnl water at d''reat’s Island (Absi., [). 419, rul- ing* til., l‘Jl^d). Also, tlu' statement of Bowers: l have heard the folks down there talking about a l)oat ihat ea))sized and drowned some men at the aqueduet. Jt was a kind of flat borA or raft they had for fetching stone for the piers for building the aqiiednct. I liave always under- stood that the way tlie boat came to sink a yoke of cattle on it backed up to the hind end of the boat and sunk it.” (Abst., }). 422, ruling 1224.) Also the statement of Hicks in response to the question: ask yon if yon were acquainted with its local reputation, from what you have been informed by others'?” ‘‘A. Yes, sir, because I have been making inquiries about the stream, in hopes that some time 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 the general talk around the boat yards when I came here, about having this for a ship canal.” (Abst., p. 436.) The statement of the witness on cross-examination stood. have heard that the trappers used to be up around here: I have heard others state that a good many years ago. The local reputation about these trappers with the batteaux was that they were sent out by the American Hur Company.” (Abst., p]). 438-9.) The same witness said (Abst., p. 438) : ^Ht was always considered that the middle of the river was a navigable stream and l)elonged to the government, and they were not allowed to put fences across the river.” {id.) Erhard said the same thing and explained that Adler was re- quired to and did put a gate in his fence to ])ermit the ])assage of boats and rafts. (Abst., ]). 163.) The statement of Bai-rent was allowed to stand. (Abst., ]). 452, ruling ]>. 1227.) ‘^That he was ])ersonally familiar with the river and used! it continuously since 1853, and it was navigable for ordinary boats drawing from 2 fo 4 feet of water, from the head of Lake Joliet to the mouth of the river, for at least six months of the year, and all the year except at the rapids at Treat’s Island, which were a])ont 100 'yards long; and that ])oats with light ca])acity could go down these rapids for six months in the year. He also descrjbed the Davidson’s Road and land- ing place, and the general repute that the road was used for hauling stone down to the lake and loading on to boats.” 884 This latter was (lescril)e(l in detail in tlie deposition of Brock- way, inclnding the proof tliat derricks and machinery were hauled down by water from the Davidson’s ({uarry above to the quarry sevei'al miles down below. (A])st., pp. 458-9; 1228.) The statement of King was allowed to stand: ‘‘I have heard from the early settlers the current reputa- tion 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 I asked them what they used them for and they told me they used them si little earlier to carry provisions on. One old gentleman 'told me there was a boat of grain brought there. That was before my time. I saw one or two of those flat boats in 1872 and 1 saw some of them later. They were anchored in the still Avide water above Treat’s Island. They were 12 or 14 feet- wide, 20 or 26 feet long, built up with a flap over the top.” (Abst., pp. 465-6.) So the evidence of Taylor was allowed to stand: saw logs come down the river, some times in small rafts, some times scattered. Principally before the canal was com- pleted. Used to see them frequently in the river. I was familiar with the depth of the riA^er. Have seen it in all seasons of the year and many years. I don’t remember that 1 ever saAV the river at a lower stage than two feet at its lowest stage. I saw eAudence there was traffic somewhere. I know of the general talk or reputation in the neighborhood as to the navi- gability of the river. It was generally said by everybody and the old inhabitants as being a iiaAngable 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 AAms generally understood in the community that it Avas a naAugable stream. I was better acquainted with the river before the canal was opened than after. I know a man Avas drowned in the lake in the spring of the year Avhile he was cutting wood there. There was good heavy timber. Cord-wood was piled up on the banks of the river. The wood must have been carried away in boats. It was generally said by the people here at that early date, not only they considered it themseh^es, but the government considered it a navigable rUer.” (Abst., pp. 488-490.) In Heydecker’s deposition, the statement stood: heard from the old settlers the current reymtation as to the early years of the river preAuous to the time when 1 first began to know it. It was claimed by some of the old 885 sc'iilevs lliat tliey came up the river when they came into the county to settle.” (Abst., p. 20G.) The statements of Stevens were retained by the court, wherein he said: “1 am acquainted witli the current reputation and com- mon report as to the early history, — as to the use of the Des ITaines iiiver by earty settlers and explorers; that is, the early repuatation and common report 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. The current reputation was, up to the time of the opening 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.” (Abst., p. 408, ruling 1234.) As to the road from Swalm's Quarry, his answer stood: ^Mt was the current reputation that it had been used to haul stone from Swalm^s Quarry down to the river and there load it on to boats. I first saw it in 1856.” (Abst., p. 410, ruling p. 1235.) ‘‘When I first came here in 1855, I saw the end of an old dam on the Des Plaines Eiver there at the mouth. I never heard of a dam there except when 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. I have seen it many times. I don’t recollect much about it. I recollect some logs sticking in the bank on the north side of the river and some boulders lying on the logs. That was probably fifty years ago. * * * * * * * * * Jt was general conversation that there were sev- eral months in each year it was impossible to get from here to Chicago with a team. There were no bridges across the sloughs and flat places, and they could not get to Chicago with a team, except when the water was low and the ground was dry.” (Abst., p. 416, ruling 1237.) This reputation evidence which the court retained is uncon- tradicted. It is in itself cogent proof of navigability. Eein- forced by the other evidence, it establishes the fact. It was argued contra that the fact that in 1834 the l)oat load of wheat dipped water at Treat’s Island proved that the river was not navigable. By the same token eaeli vvre(‘k and foundering on the lakes or ocean i)rove tliat they are not navigable. 2. Tile court erred in excluding the following: All*. Cooley was asked, ^‘ITow would the stage of wuiter in a state of nature ])rior to these artificial obstructions and interferences compare with the stage of water in the 19 recorded years!” (Abst., })p. 823-4.) The court excluded the testimony.. This was error. It prevented the court from ascertaining the net effect of the several depletions of the stream. A month later, when the defense was putting in its case, and the same (piestion was asked of Air. Cooley’s Assistant, Air. T. T. Johnston, vAm was put on for the defense, was i^ermitted to answer the question and gave his opinion that the Des Plaines Piver was helped more than it was hurt by the interferences. Of course, the inconsistency was inadvertent. In general, it reflects a natural condition in long drawn out and elaborate cases:— At the beginning, the court is not familiar witli the case and goes slowly, and rules, critically against the introduc- tion of matters with which it is not familiar. Later on, after the complainant has completed its case, the court having become informed as to the scope of the inquiry, rules more ffberally and receives evidence from the defense upon mat- ters wdiich it excluded for the complainant. The latter ruling would not be incorrect if the witness showed a proper acquaintance and foundation, but the former ruling was certainly incorrect. Johnston’s testimony as to the comparison was in itself of no value, because he showed no acquaintance with the several ele- ments of depletion of the river, the only one of which he was acquainted being that of the Canal itself, and his answ^er was : ‘‘The quantity of water fed through the canal due to the deep cut wa^s in excess of that which could have been due to the loss, to which I have testified.” (Abst., p. 1399.) As the witness had not testified as to the effect of (1) the State Ditch; (2) the Cook County Drainage Commissioner’s Ditch of 1852; (3) the Ogden-AYentworth-Nickerson Ditch; (4) tbe r 887 Ogdon Dam; (5) tlie river diversion of the Sanitary District; (0) inhabitation, tillage, drainage and reclamation of swamp lands, including the draining away of Mud Lake, the Sanganashkee Swamp; (7) north to tlie Upper Feeder of the river into the canal at Summit, north to (8) percolation from the river into the canal below, which defendant’s own witness Wheeler had stated was graet, he having confined his testimony to the small feeder that he saw at Lockport, to which Mr. Cooley had referred. (Abst., pp. 823-8.) It will be seen that liis opinion on the subject was without value, and again it will be seen that his information with refer- ence to the subject as to the whole and his possible knowledge as to the natural condition of the river, was indefinitely less than that of Mr. Cooley; but his opinion was received, and ?\[r. Cooley’s was excluded. Johnston testified (Abst., pp. 1405, 8), about his extended ca- reer as an expert witness. 3. Complainant offered in evidence Complainant’s Exhibit 2. (Abst., 931, et seq.) This was a po^e line lease by the Canal ( Ammissioners to the defendant, the Economy Light k Power Com})any, dated Decem- ber 5, 1901, granting that company the right to maintain a line of poles, wires and electric current u])on the tow-path of the canal, from Joliet to Chicago, a distance of about 40 miles, for a term ending July 17, 1910. The consideration was the use of 125 horse- power, together with electric light at the locks and canal stations, to be taken from the line, or poles. This lease, together with the other pole line lease (Exhil)it K). given to Griswold and by him assigned to Munroe and then to the defendant, gave to the defendant in all the control of about 65 miles of the low-])ath, out of the total of 102 miles. This the court excluded. But when the defendant came to put in its evidence, the court received on its offer, in one ])lace, 32 leases of the 90-foot strip and tow-path by the Canal Commissioners to strangers (Abst., p. 1165) ; a list of 24 such leases of the 90-foot strip in another place (Abst., p]). 1577-8) ; a list of three such leases of the 90-foot strip in nnolher place (Ahst., ]). 1580), and a list of 53 such leases of tlie OO-foot stii]) in another ])iace (Al)st., p]). 158-192). The tlieoi'v of the defendant wliicdi the court inadvertently adopted was that dealings of the Canal Commissioners with the defendant itself were irrelevant — were res inter alios ; — but deal- ings of tlie (huial Commissioners with strangers, about the same subject, were competent. AVe sulunit that this was error. The defendant objected to tlie admission of evidence which would show that it had jiractically acquired control of 65 miles of tow-path because, as was suggested, it might give rise to un- favorable inferences. The theory on which the defendant offered the 112 leases by the Canal Commissioners to strangers was that it tended to show a course of dealing by the Public Canal Commissioners with the public property in the same way that it dealt with the particular public property here involved. If that were correct, still more did the leasing of 40 miles of tow-path east of Joliet, show a similar course of dealing with that involved in leasing 25 miles of the tow-path west of Joliet. The two rulings cannot both be sustained. But it was said that the two leases to the defendant related to the tow-path, while the 112 leases to strangers related to the 90- foot strip, and defendant sought to distinguish the two rulings by this means. TJie distinction is not good. The tow-path itself is a strip lengthwise of the canal, occupying from 12 to 16 feet of the 90-foot strip. The lease of the tow-path is a lease of a part of the 90-foot strip, and the other leases were leases of the vdiole of the 90-foot strip, tow-path included. The objection by the State of proof that the defendant had acquired control of 65 miles of tow-path was that it might give rise to unfavorable inferences. Unfavorable to whom? Unfavorable to the defendant, and to the inconsiderate action of the Canal Commissioners. We submit that this is not a good legal objection. ^ 88 !) Many of those oonvoyanoes to the nerondant, and others, have been justified l)y the suggestion de minimis lex non curate but that is no sort of justification and the evidence offered for the com- plainant was cogent to show that what the defendant was getting was no trifle; that the breach of public trust, inadvertently com- mitted by the Canal Commissioners, Ijeginning with small things, had extended to a point tliat gave the defendant alone control, for power purposes, of two-thirds of the tow-path. The evi- dence was competent to show thal;^the public rights to use the tow-- path were gradually being absorbed by a private corporation, and appropriated to private uses, and that, in the aggregate, the in- jury to the State wms substantial and serious. The State, by its Information, charged that this lease of the tow-path from Joliet fo Morris, was unlawful. (Abst., p. 18.) Bill charges making of the contract, ‘‘Exhibit K. ” (Abst., pp. 47-49.) Exhibit “K” is set out. (Abst., p. 26.) Bill charges that said pole lease. Exhibit “K,” w-as subject to all the infirmi- ties heretofore specifically charged, as to Exhibits “A” and “B,-” and wuis for an inadequate consideration. Charges so ap- plied to “K,’’ are, that it was “without any authority and against the public policy of the State and in derogation of the rights and interests of the ])eople, and to l)e revocable by the State.” (Abst., p. 23.) Was the pole line lease of 25 miles of the tow-path unlawful How can unlawfulness of an admitted act be shown? “By showing other acts and offenses of a like nature, which tend to disclose a common purpose, or scheme of unlawfulness.” Brotvn v. U. S., 142 Fed., p. 1. People V. Molinemix, 168 K. Y., 264; 62 L. 11. A., 193. Alex. V. State, 56 Ga., 478. To the objection that those cases are criminal cases, we reply that the rule admitting such evidence is more liberal in quality than it is in the criminal courts. In the criminal courts, the de- fendant is guarded by the presumption of innocence, and the wholesome rule that the defendant charged with crime No. 1 shall not be tried for committing crime No. 2. But in a civil case, in equity, to set aside an unlawful contract. 890 tlie fact tliat tlie same defendant lias ol)tained anotlier unlawful eontraet for another ])art of the same public property to be oper- ated in conjunction wdtli property it obtained by the contract at- tacked, is cogent to show the unlawfulness charged. The manner of obtaining and disposing of other property is always admissible on an issue of the fraudulent and unlawful character of the con- tract. Schroeder v. Walsh, 120 111., 403. Gray v. St. John, 35 111., 222; approved, Lockivood v. Doane, 107 111., 235. Miller v. Bedell, 21 La. Ann., 573. 5Ve respectfully submit that the two rulings of the court can- not both be sustained. Error certainly occurred in admitting 112 leases to strangers, as evidence for the defendant, and excluding the lease of 40 miles of tow-path to the defendant itself. Eurther, we insist that the'error was twofold. The court should have received in evidence the lease of the 40 miles of the tow- path to the defendant, itself, and it should not have received leases of 112 odds and ends of different pieces of the 90-foot strip to a lot of strangers. Those transactions were res inter alios, and the rule should be applied to sucli unlawful transactions, which is applied to unlawful obstructions of the stream. The 112 unlawful obstructions of the stream at other places, by other people, by unlawful dams and bridges, would constitute no justifi- cation to the defendant for this dam. And so the leasing of '112 odds and ends of parcels of the 90-foot strip, to other people at other times and in different places, were simply so many other unlawful acts pleaded as a justification for this unlawful act, and they constitute no justification. They stand on the same footing as tlie attempt in cases of accident to prove up other similar acci- dents. These are inadmissible: Aurora v. Brown, 12 111. App., 122. Simmons v. New Bedford Steamboat Co., 97 Mass., 361. Chicago v. Greer, 9 Wall., 726. 4. The court erred in excluding ComplainanEs Exhibit 3 (Abst., p. 931c) and Complainant’s Exhibit 4 (Abst., p. 931d), which were contracts between the Canal Commissioners and one Eobert 891 . (ja)^lord, whom it was proved, was an assoc'iale of Mun roe’s in the enterprise covered by the contracts, [)roviding for the build- ing of a dam at the head of Lake tJoliet, and connecting tiie ])es riaines Liver with the Canal. The contracts were made October 3, 1902, (Abst., pp 931d-h). The contracts v/ere produced and testified to and the relations of Munroe to Gaylord were testified to by Superintendent Mc- Donald, an emx)loye of the Canal Commissioners. (Abst., pp. 269-271.) Mr. Sackett also testified that Mr. Munroe negotiated the con- tracts which stood in the name of Gaylord. (Abst., pp. 218-219.) These negotiations and contracts by Munroe, in the name of Gaylord, with the Canal Commissioners for another dam two years prior to the one in question, were admissible for the pur- pose of showing the relations of Munroe (through whom the con- tracts in question were acquired), with the Canal Commissioners from whom the contracts were ultimately acquired. 5. The court erred in excluding Continental Waterway pro- file (Cooley Exhibit 37. Atlas, p. 3975a). This was excluded at (Abst., p. 1188). Considerably earlier in the case (Abst., pp. 812-13), the Cooley Consolidated profile of the Des Plaines River (Cooley Exhibit 3), was produced and put in evidence. (Abst., jjp. 812-13.) At that time, the following occurred: ‘‘Mr. Cooley: In connection with this profile we have con- sulted every record that has been made that was accessible, and all the profiles that have been platted in connection Avith the river. That includes all of these volumes of gauge readings and reports and profiles and gauges and maps to which 1 have referred. It truly and correctly depicts these ga.uge read- ings according to the accepted method of depicting them by hydraulic engineers. Thereupon counsel for conq)hiinant 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. The Court: Wedl, if ihcy are all here we can pass on that question later. I will pass on that later. 1 will overrule it at this time. Said maps were then received in evidence, marked “Cooley Exliihit 1^” and ‘'('ooley Kxliihit ‘r’ (Atlas, pp. 3944 and 3943; Trans., pp. 6557-8; Abst., p. 1923). And the witness flirt! ler testified: As to liow many pages of figures, gauge readings and sim- ilar matter I have consulted in the preparation of this profile, — the tabulations that liave been gone into and actually used in this connection amount to two or three hundred pages, aside from the ma])s and profiles of tlie surveys that liave 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.” (Abst., p. 813.) Counsel for defendant objected on the ground that they were based upon records not in evidence. ^^The Court: Well, if they are all here, we can pass on that question later. 1 will overrule it at this time.” A little later in the same day (Abst., p. 823), when Mr. Cooley’s tabulated summary of gauge readings was offered, the court said : — doubt the right of counsel to offer the summary without the original, where the original is available, and the other side ob- jects.” The question as to the consolidated profile, which was a sum- mary of several maps, and the tabulated statement of gauge read- ings, which was a summary of many tables of figures, was sub- stantially the same. The court reserved the question as to the first and a little later announced his position, which was that the originals must go in with the summaries. Thereupon, the State caused Mr. Cooley to assemble the mul- titude of maps and other data used in consolidating the profiles and bring them in. This Continental Waterway (Cooley Exhibit 37) was one of the maps and, in particular, one made by Mr. Cooley himself several years before, showing, in detail, the slopes of the Des Plaines and the relation of the Des Plaines Eiver to the great commercial cities of the country and the great international waterways. It was competent beyond question. Apparently, the court excluded it (Abst., p. 1188) because it uvas so big (about 20 feet long), for it was brought forward in connection with the whole list of other exhibits by Cooley (Abst., pp. 1183-1185) and selected out for exclusion. 81 ):] AYe liopo that tlie court will detacli this Cooley Kxliihit :]7 froiti tlie Atlas, spread it out and tac'k it u}) on tlie wall, as was done in the trial court, and see its significance in passing u})on tliis assign- ment of error. In connection with this, it sliould l)e observed that the Profile Sheets 7 and 8, House Document 192, 54th Congress, in the re- port of the deep waterway commission, were received in evidence. This deep waterway commission consisted of James B. Angell of Michigan, John E. Eussell of Montreal and Lyman E. Cooley of Chicago. Profile Sheets 7 and 8 thereof (Atlas, pp. 3975a, 3976), were re- ceived in evidence. These show the slopes of the St. Lawrence at the Lachine and Cornwall Kapids and elsewhere, to be greater than those of the Des Plaines; that the St. Lawrence is navigable, the world knows; and the Avitness Burton, Chairman of the Eiver and Harbor Committee, testified in particular that it was navi- gated down stream, but not up stream, the boats going down by the St. Lawrence and coining back up by a canal along side. (Abst., p. 192.) That was when the State was putting its case. 6. In the clean-up of details at the end of the case, we otfered to show by Mr. Cooley that the maximum flood volume of the Des Plaines Eiver at this point when the Drainage Channel is com- pleted, throughout its widest part, plus the high water flood of nature, would aggregate 40,000 cubic feet per minute. The court excluded the testimony. (Abst., p. 1674.) 7. AYe also offered to show that the period of navigation on the Illinois and Michigan Canal was made to correspond to that on the Great Lakes, which was determined by the conditions af Macldnaw, and that navigation there is limited by ice conditions and winter to 135 days in the year, and that the period of winter interruptions on the Des Plaines Eiver liy ice from 60 to 70 days. The court excluded the testimony. (Abst., p. 1674.) 8. Similarly we offered to prove by Mr. Cooley that the diffi- culties of navigation which had been referred to by Avitnesses for the defense on the Des Plaines Eiver, as compared with the rivers referred to by the witnesses for the defense and reported in 894 tlie l^eports of tlie United States Engineers, were less than the average amount of difficulties on such streams. The court ex- cluded the testimony. (Abst., p. 1675.) 9. Again, in the final clean-up of details, counsel for the State offered in evidence a certified copy of the lease of Dam No. 1, with the assignment of the same, under which the defendant claims to hold it, also the consent decree under which the Dam No. 1 had been reconstructed, showing exactly what private rights, if any, there were in the State property known as Dam No. 1, and showing to what ex;tent, if at all, there was any right to maintain any private right to the maintenance of this dam across the river. The court excluded the testimony, although it had admitted evidence from several witnesses for the defense to the existence of several old dams and this dam. (Abst., p. 1876.) TIL THE COURT ERRED IN ADMTTTINCx INCOMPETENT EVIDENCE OFFERED ON BEHALF OF THE DEFENDANT. The court received in evidence on the offer of the defendant a multitude of documents purporting to set forth acts by the com- missioners of the Illinois and Michigan Canal. 1. The ^^Druley v. Adam^^ Documents. Among these were a resolution, that ‘4t became equitably and justly incumbent on the stale to assume the responsibility of such suit,” — meaning thereby the suit known as Driiley v. Adam. The Canal Commissioners liad assumed to lease to Druley and Slater some water-power created by the extra water of the Deep Cut. Adam contended that if there was any surplus over and above the amount necessary to feed the canal, and capable of being deputed to water-power purposes, — the water-power result- ing therefrom should inure to him. He sued Druley and Slater for the diversion of the power. This was the suit which the Canal Commissioners resolved in 1882, ‘‘it boc'aiiio tMiiiilably aiul justly iiuuiinixait on ili(3 stat(3 to assurne the responsibility of.’^ Tlie court said, “it nu'.y go in for wliat it is wortli’’ (Abst., [). Iddd). Along witii it went the voucher of the j^lieriff, paid by the Canal Commissioners for tlie judgment and costs in that case (Abst., pp. 1339-41). Also the lawyer’s bill for his services (Abst., p. 1342). Also the abstract and briefs on both sides in the Appellate and Supreme Courts, and petition for rehearing in the Supreme Court, in that case (introduced at Abst., pp. 1419-1428; abstracted at pp. 1733-1853). (On page 1344, the abstract says: “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.” This was a misprint. It was counsel for defendant who so stated.) Pages 1419-20, counsel for defendant said : “The doctrine under which we claim the right to introduce him is that as to matters in controversy in a law suit, state- ments or admissions made by a party at any time, at any place, are competent; and that is especially so of statements made in proceedings of record, to which such party was a party, or where he was a real party in interest. The intro- duction of briefs — in my experience, — I have known it a num- ber of times as being of the same nature as ])leadings. Plead- ings are always taken up as admissible against a party. We liave established in tin's case that while the nominal party was Mr. Druley, the actual party was the State. The Canal Commissioners, by their resolution, said it was their duty to assume, the State’s duty to assume, and the state retained and paid the attorney who appeared in the case for Drnley 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.” (Abst., p. 1420.) The court adopted this theory and admitted the bound volume of briefs in evidence. We respectfully submit that this was error. The Canal Com- iiiissioners wore not the State oF Tllinois. The assumption on their i)art tliat they were tlie State was even more erroneous than tliat ol* Louis XIV in his famous ejaculation, ‘‘I am the State”. Tliey were statutory officers, witli statutory powers. They had no implied powers. (See Division One, points T and IT, of this hriei, and the authorities there cited.) The statement of counsel for the defendant was mistaken in an- other tiling: Tt was not a suit by the State, and it was not a suit by the Canal Commissioners, and it was not a suit by the lesese of the Canal Commissioners. Tt was a suit against the lessee of the Canal Commissioners. The Canal Commissioners could not be sued, (R. St., Ch. 19, Sec. 3) and the State of Tllinois could not be sued. (Constitution of 1870, Article 4, Sec. 26.) ^‘The State of Illinois shall never be made a defendant in any court of law or equity.” That was enforced by this court in: Moore v. School Trustees, 19 111., 83. People V. Dulaney, 96 111., 503. In re City of Mi. Vernon, 147 111., 359. The court acted hastily and was doubtless misled by the lan- guage of the counsel saying: ‘‘The record shows clearly that it was really a suit by the state.” The record shows no such thing. It shows that it was a suit by Adam, as assignee of the rights of the Havens, against Druley and Slater, the lessees of the Commissioners. As this court said in deciding Druley v. Adam, 105 111., 177, 179: “This was an action on the case by appellee (Adam) against appellant (Druley) for diverting tlie water in the Des Plaines River from the plaintiff’s mill.” AVe respectfully submit that the resolution of the Canal Com- missioners (Abst., p. 1343) that “it became equitably and justly incumbent on the state to assume the responsil)ility of such suit,” is an act beyond their power. They have no authority to violate the constitution. They have 81)7 lU) autliorily lo (M'C'cI th(aiisolves into lli(‘ ju(ji('ial (h^partriKail oT the goveniineiit and adjudicate a suit ai>aiust tlie state, and make the state a defeudaut to a suit, wlieu tlie eoustitiitiou forhadci that the state sliould ever he made sueli a defeudaut. Again, we submit that it ap])ears from that very abstract that tlie evidence in that suit was the evidence of an agreed case. From the abstract in this case, ]). 14-20, it appears that in that case, the evidence upon which the same was decided consisted en- tirely of a stipulation between Adam on one side, and Druley and Slater on the other, and these parties there stipulated thus : ‘‘Be it remembered, etc., that evidence was introduced which, for the purposes of this appeal, it is stipulated hy and hetiveen the parties established , the following facts.” Here was an agreed case between Adam, who sued the lessees of the Canal Commissioners on the one hand, and those lessees on the other. Amd then, after it is over, the Canal Commissioners, themselves, resolved that “it became equitably and justly incunn bent on the state to assume the responsibility of such suit.” (That case ended in the Supreme Court in the Alarch term 1882, 102 111., 177; and the resolution was passed ^fay 10, 1882, Abst., p. 1343.) The ])ayment of the judgment and costs by the Commissioners was done after the suit was decided here, so that this court had no knowledge of the evasion of the Constitution which was ])rac- ticed. It did not occur until after tlie case left this court. Again, the evideiu'e stipulated there, was '‘for the purposes of this appeal.” We respectfully submit that the stij^ulation liy Druley and Slater “for Ihe ])urposes of this ap])eal” do not bind the State of Illinois 25 years later in another suit. A])parently the very object of the phrase “for the purposes of* this appeal,” was that Druley and Slater might limit their admis- sion for the juirposes of that suit, and that suit only. It could not be extended to become in renn an admission in favor of all the world against the State of Illinois. Again, the object of the resolution, itself, apparently was merely pecuniary, to reimburse Druley and Slater the if*800 and costs ($956.38, Abst., ]>. 13-10), for which judgment had been re(M)vered against them by Adaiii. The resolution in full is as follows: 898 ‘SSnvdeu Kx. K]. COPY OF PREAMBLE AND RESOLUTION ]N REGARD TO PAYMENT OF JUDCiMlCNT AND COSTS IN CASE OF ADAM VS. SLATER & DRULEY, MAY K)tij^ 1882 . On Tvlotion the Following was Adopted: — AVhereas, in the case of William Adam vs. Robert P. Slater and Win. M. Druley brought in the Circuit Court of Will County at the term A. D. 1878, for the diversion of the water of the Desplaines River from the mill of said jilain- tiff and appealed to the Appellate Court, in which court, the judgment of said court Avas 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 more 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 hecame 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 ivith a vieu) to saving the future rights of the State, that said judgment be paid under protest.’^ There is no suggestion in the resolution that the Canal Commis- sioners, even in their most arrogant usurpation, assumed to com- mit the state ad rem and in rem to the ‘ ^responsibility” of a covenant running with the land in favor of all the world to come, and to all of the arguments and contentions made by the lawyer for Druley and Slater in that case. But that was the contention and theory upon which they were admitted. Indeed, the commissioners intended just the contrary. They said that ''whereas it became so and so, therefore resolved that said judgment and costs be paid; but ivith a vieiv of saving the future rights of the state, that said judgment be paid under pro- test.^’ 899 The iiitenlion was to assume peenniary ‘^responsibility” ot‘ the $95().9S, adjudieated against their lessees, Drnley and Slater, and reimburse them for it; and carefully guard their action against any other responsibility. And tlie intention of Druley and Slater was to stipulate the evi- dence in that case “for the purposes of this appeal” only. But, again, the thing for which the briefs were brought forward and put in under the erroneous statement that “it was really a suit by the state,” were to show some statements by the lawyer for Druley and Slater in his brief, such as the following: “ ‘The Des Plaines Elver is in truth a very insignificant stream, never of much use as a feeder in the season when its services are most needed, and, except as reinforced by con- tributions of the Canal, affording sites only for what are sometimes denominated “thunder-shower mills”.’ ” (Abst., p. 1425.) The Des Plaines Eiver 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 law suits. (Abst., p. 1426.) We respectfully submit that these statements purport to be statements of fact ; that they are made in a case in which the entire evidence was stipulated; that there is not anything in the entire stipulated evidence in the case of Bruley v. Adam to justify any such statements; that the facts and evidence in the case of Bruley V. Adam were such, and only such, as were stipulated; that these expressions and comments upon the evidence in that case had no foundation in the stipulated evidence in that case; that they are stray expressions and figures of speech used by the lawyer in argument and are no evidence of an^dhing either in that case or any other. They are cases of mavericks and estrays, where counsel jumped the fence and strayed from the path of the record. The entire abstract and the entire brief remain in evidence. (Abst., pp. 1733-1854.) There was no other evidence. These statements cannot be referred by ])resumption to something not now preserved. Again, the theory, upon which the metaphors of G. D. A. Parks, Druley ’s lawyer, are said now to conclude the State, is that they were admissions wliicli est()])|)ed tlie State from asserting tlie Iriitli about the river in so far as the truth differs from Park’s metaphors. We respectfully submit tliat they have no sucli effect. ‘Mn order to create an estopi)el, tlie following elements must be ])resent : (1) There must have been a representation concerning the matei'ial facts. (2) The re])resentation must have been made with the knowledge of the facts. (o) Idle ])arty to whom it was made must have been ig- norant of the truth of the matter. (4) Tt must have been made with the intention that it would 1)0 acted upon.” {People V. Brown, Gl 111., 485.) None of these elements are present. The verbal admissions of tlie counsel made in the trial of an- other cause are not admissible liy way of estoppel. Kei/ser v. Piclxrell, 4 App. Cas. (D. C.), 198. (The same criticisms apply to the admission of the opinion of Judge McKoberts in that case. Abst., p. 1396.) Adam is a stranger to this law suit, and the state was a stranger to the Adam law suit. There is no estoppel against the state here by the admission of one stranger, Druley, to another stranger, Adam, there. Bohinson v. Hawkins, 38 Yt., 693. Moore v. Boyd, 74 Calk, 167. There is no theory on which an agreed statement of facts is ad- missible in a suit between other independent parties, merely be- cause the subsequent suit relates to the same parties. Elting v. Scott, 2 Johns. (N. Y.), 157. The contention of defendant is that Druley and Slater were only nominal parties and that the Canal Commissioners (and therefore the state), is the real defendant in Druley v. Adam. This is wrong; but if it were correct it would not aid the de- 901 Tlio admissions of a nominal (l(‘r(‘ndant ai‘(‘ not admissi})l(; against the real dofendant in intorest wlio is Tiot a party. Daij V. Baldirbi, 9)4 Iowa, .‘>80. Ai'}}isfro]if) V. Nonnandy, 5 Excli., 409. There is no esto})|)el against tlie state l)y unauthorized, or extra- legal acts of its officers; — and their admissions are incompetent to charge it. Tyler v. Bailey, 71 111., 34. People V. Broivn, 67 111., 435. Dement v. RoJdcer, 126 111., 174. So of the unauthorized admission hy a guardian. It is incom petent to charge the ward. Ileisen v. Heisen, 145 111., 658, point II (pp. 670-71). 2. The court erred in receiving in evidence 112 leases by the Canal Commissioners to strangers of parcels of the 90-foot strip (Abst., pp. 1165, 1.344, 1387, 1577, 1580, 1582). The error was fourfold : (1) Those leases were res inter alios. (2) The proof was made iu a majority of cases by merely putting in a page from the Canal Report giving a list of ‘Meases of ‘90-foot strip’ and lots” (See Al)st., j)]). 1165, 1578, 1580, 1581. 1582). This evidence was not the best evidence. It gave at 11 ()5 noth- ing to show which were 90-foot strip and which were other lands; at 1165, 1580-1-2 it gave nothing as to tlie term of .the lease; all of them may have been leases at will or for very short terms. The lease at page 1578 ])rofessed to give the term, five of them being for 10 year terms and the rest for less. These lists of leases do not disclose anything as to the nature of the action taken by the Canal Commissioners. They are simj)ly lists taken from the annual reports in which the (k)nmiissioners l)urported to summarize their own former acts. (3) The leases actually set out in the only list so given (Abst., 1387-1395) are upon their faces instruments signed by individuals with the words “President” and “Secretary” appended to two ()[' the names. They are not signed 1)y the Canal Commissioners of Illinois, nor by ^‘The Canal Commissioners.” (See statement of objeetion, Abst., pp. 1387-8.) (4) The leases so jmt in evidence in a lump may each one be unlawful for the same reasons as the contracts in the case, at bar. They may each be beyond the power of the Canal Commis- sioners. Many of them obviously are so. For instance, the lease of a mile and a half of the canal strip in Snyder Exhibit 20 (Abst., 1388) to the Illinois Steel Company. The wrongful leasing of the 90-foot strip in this instance is not justifiable by other leases of the 90-foot strip either rightful or wrongful. See authorities cited in Division One as to the unlawfulness of leases of the 90-foot strip, and in Division Four, Part II as to res inter alios. See also, the treatment of res inter alios of Charles F. Chamberlayne, Esq., in 17 Cyc. of L. & P., pp. 274-289 and cases there cited, stating the grounds upon which such evidence is ex- cluded and the exceptional cases when it is properly admitted. 3. The court erred in receiving: (a) Lists of numerous alleged acts by the Canal Commis- sioners in selling other parts of the 90-foot strip; (h) Sales of other lands bordering rivers, which were claimed to convey parts of the river bed; and (c) Lists of unsold canal lots. Instances of such acts in class (a) are given at pages 1415-1419 of the abstract. Instances of such acts in class {h ) — as well as of sales of other lands bordering rivers — are given on pages 1294-1296 of the ab- stract; also at pages 1606-1611 of the abstract; also at page 1712 of the abstract. Instances of such acts in class (c), viz: lists of alleged unsold canal lots, were offered and received, abstract pages 1165, 1166, 1167 ; also Abst., pp. 1331-1337; also Abst., pp. 1414, et seq. (a) The admission of proof of sales of other parts of the 90- foot strip by these same Commissioners in 1907 was erroneous. In 1899 such sales were forbidden by the statute of Eev. Stat. Ch. 901] 11), Scv. 8, Cl. 8, as aiiieiided by tlic Acd ol* April 21, 1899 (4 StaiT & Curtis, Cli. 19, p. 90). Ill 1907 wlieii tlie sales occurred the law had lieeri chuuged again by the Act of May 16, 1905 (L. 1905, pp. 81-83). 7\ppar- ently the law had been clianged by the Act of 1905 to permit some sales and not others. Acts thereunder were wholly irrelevant'to the question whether the sale in 1904 of a perpetual easement was valid. (h) Proofs of sales by the Canal Commissioners at other times in Chicago or other parts of the State of lands bordering streams, such as were put in evidence by the defendant (Abst., 1294-6, 1606-11 and 1712) were apparently offered on the theory that they were so many practical constructions of the law by the Commis- sioners themselves. We deny their competency for that or any other purpose. The Canal Commissioners and Trustees were not the judiciary. Their deeds show nothing on the subject of what the law is. Many of these tracts vmre in the City of Chicago where, from time to time, the law lias contained special provisions concern- ing sales of land different from canal lands in the rest of the State. Subdivisions there stood on a different footing (See Diederich v. B,ose, 133 111. App., 384; 228 111., 610). It could only confuse the court to introduce indiscriminately such sales of river lands on the (Oiicago Piver nnd in the Canal Subdivisions, and impose on the court the burden of chasing down the different changes in the law concerning canal lands in (liii'ago in order to show that they have nothing to do with lands on the Des lOaines Elver in Grundy County. (A few instances of such special provisions concerning sales in Chicago will be found in the Acts of March 2, 1837 (Canal Comp. 39, 41); Act of July 31, 1837 (Canal Comp. p. 49-50); Act of February 17, 1841 ((huial (h)mp., ]). 72); Act of February 27, 1841 (Canal (hmp., ]). 74); Act of February 27, 1845 (Canal Com])., p. 92); Act of March 1, 1845 (Canal Comp., p. 94); Act of Marc'h 7, 1872 (Camd Comp., p. 153); and others.) So with regard to lands in Ottawa, Joliet, Fock])ort, etc., lists of acts to be hied showing special authorities concerning the sale of canal property in each of those towns. 9(4 9^10 Act of i^'ohniaiT 15, 1851, I'tHjuired tlio plat of the town of Ottawa to he so altered ‘Uis to present the front street of said toirn on the verpe of the second Ijanh of the Illinois River.’ ' And again, ‘‘All the ground heticeen the bluff and the Illinois River in the town of Ottawa shall he reserved from sale.” (Canal Comp., ]). 20.) Sales in these other localities wliere the law was different or may he different at diff'ei'ent times are res inter alios. The court cannot try all the issues suggested thereby. Tlie eyidence should haye ])een excluded. (c) Lists of unsold lands were apparently offered for the double purpose of showing, first, that the Canal Commissioners did not include bits of riyer bed therein and therefore did not con- ceiye that they owned the riyer bed; and secondly, to show that they did sometimes include bits of tfie 90-foot strip in the unsold lands and therefore, apparently, think they had the rights to sell the 90-foot strip. Such theory is fallacious and does not inyest this eyidence with any competency. 4. The court erred in receiving in eyidence the record of a judgment in fayor of one James McKee against the Canal Com- missioners. (Abst.. p. 1175.) The apparent theory upon which this was receiyed was that McKee had built a dam across the Des Plaines Eiyer before the act proyiding for the construction of the canal was passed. The Canal Commissioners built the canal and took the water from the lies Plaines Kiyer and turned it into the canal, as described in Canal Trustees y. Haven, 5 Gilm. This took the water away from McKee’s mill. Apparently also the Canal Commissioners took some of Mc- Kee’s land for use in constructing the upper basin. All these suppositions (stated most strongly in defendant’s fayor) do not make the eyidence of the judgment competent here. Nothing is shown as to McKee’s right. He may haye had au- thority, express or implied, to build the dam from tlie State or the Nation, or he may haye ac(iuired possessory rights. Eyen if a 905 trosj^asser and iiiilawrul, wlii(‘h is (jiiito pr()l)ahle, liis judgrnnrit ai>’ainst the (''anal (''oininissionei's })r()ves nothing liere. It was res inter alios. 5. Tlie defense put in evidence Governor Ford’s deed to the Canal Trustees (Ahst., p. 1301), tlie Canal Trustees l\ex)ort (Al)st., X)x>. 1314-1326), and the release deed by the Canal Trustees (Ahst., X)p. 1326-8). Much other evidence of the same sort about the Canal Commissioners and Trustees in their dealings with stran- gers was erroneously received in evidence. Among such items were the Canal Commissioners Keport of 1825 (Abst.j pp. 1067-1073), the report of Post & Paul, in an im- perfect condition with reference to maps and diagrams, which were not produced, all dated December 25, 1824 (Abst., j)p. 1073- 1090), passages from messages from Governor Ewing, 1834 (Abst., I). 1065), Governor Duncan in 1838 (Abst., p. 1066), from Governor Carlin (Abst., p. 1097). These items were all errone- ously received. They were res inter alios. 6. The court erroneously received in evidence the stipulation of facts in Haven v. The Board of Trustees of the Illinois S Michi- gan Canal, made in the Will (m. Circuit Court October Term, 1848” (Abst., pp. 1098-1101) ])y which it was stipulated thus: ‘Mt is also admitted tliat the Des Plaines Piver is not navi- gable in fact, although a j)ortion of it is declared to be so by act of the legislature.” (Ahst., p. 1100.) This stipulation is signed ‘*1 N. Butterfield, Atty. for Defts.” (Abst., p. 1101.) The defendants were the Board of Trustees of the Illinois & Michigan Canal. They were not state officers or ])rivate x>‘^i4,ies mortgagees. The admission of the attorney for the mortgagees did not bind the sovereign State of Illinois. See the authorities cited elsewhere in this brief that the stipu- lated state of facts in Druley v. Adaan, the Canal Commissioners Lessee did not bind the State in other proceedings. See also Unity Co. v. Equitable Trust Co., 204 TIL, 595, affiiTuing 107 Til. App., 449. The navigability of the Des Plaines Kiver was not a subject upon wliicli tlie Canal 'J^aistees were autliorized by the State to make admissions. The admission by the Canal Trustees was self-serving. They desired to dam the river to use its water for their canal; the other party desired to dam the river to use its water for a mill. The admission was mutually self-serving. They united in deny- ing the rights of the people for the purposes of that case. Such self-serving statements are not admissible against the cestui que trustent. Renhcuu v. Hall, 131 N. Y., 160. Bragg v. Geddes, 93 111., 39. Buck V. Maddock, 167 111., 219 (Admissions of a Guar- dian ad Litem) (Admissions of a prochein ami). The declarations of a trustee impairing the rights of a bene- ficiary are incompetent against the beneficiary. Thomas v. Boatman, 29 111., 426. There is no theory on which an agreed statement of facts is admissible in a suit between other independent parties merely because the subsequent suit relates to the same subject. Elting v. Scott, 2 Johnson (N. Y.), 157. 7. The court erroneously received the opinions of laymen as if they were experts. This was true of many of the old settlers called by the defend- ant, e. g., the following: Alexander (Abt., pp. 508-9). Williams (Abst., p. 523). Burt (Abst., p. 572). Bowers (Abst., p. 604). Collins (Abst., p. 614). Killmer (Abst., p. 626). Other similar cases occur, but these are enough. These opinions were incompetent. 8. The court erred in receiving on cross-examination the opin- ion of Clement, who was not an expert on navigation (Asbt., pp. 907 39G-7) and who said on re-direcd ‘‘I don’t know exactly wliat navi- gability means to tell the truth. I have no opinion” (Abst., p. 399), and denied the motion ot the complainant to strike out the opinion. (Abst., pp. 397, 398, 399, 400.) This was error. Arthur C. Clement testified: ‘‘I am 56 years old, was born here in Will County. Have always lived here except an absence in boyhood prior to the time I was ten years old. I have lived right on the banks of the Des Plaines and gone up and down the river in boats from an early period of my life, practically every year, say from 1864 to 1900. I have not boated on the river since the drainage canal water was turned in.” (Hep. of A. C. Cle- ment.) (Here the witness described five boats that he owned and his boat house on the river.) started in life as an attorney and followed it up by the loan and real estate business. Since 1895 I have kind of re- tired. As to the depth of water in the river, there was plenty except 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 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 for small boats. Prom 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 chanel. That was the deepest channel. About one- third of the way down the island there used to be an old dam, I think, or something. There was the 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 ])lace was not, I don’t think, over 100 feet. After that tlie water was deep until about the mouth 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 narrow 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. TJiere would be about 1)08 tlireo or four indies over tlie to]) of tliem, maylie two feet of water between them. TJie liowlders were about three feet in diameter, a great many of them. There was plenty of water between tlie bowlders if you could dodge them. About 1885 1 made a trip from here to a mile lielow the junction of the Kankakee and Des Plaines Jtivers. We did not have to l)ole at all that tri]). The boat loaded as it was drew between twelve and tift^3en inches. 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 c/irryi^g 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.” (Dep. of A. C. Clement, Abst., pp. 1 ^ 92 - 3 .) “Q. Have you stated to any one within the last thirty days that it was perfectly absurd to contend that the Des Plaines River was a navigable river! A. I don’t think I said that. I made the remark that I understood that the l)es Plaines River was not a navigable river, and that the Supreme Court of this state had deter- mined it was not navigable.” (At the trial, counsel for complainant moved to strike out the answer don’t think I said that” and the volunteer statement which follows that made the remark that I understood the Des Plaines 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.) And did you not in that connection state that you knew of your own knowledge it was not navigable, because you had been obliged to get out and pull a row boat, even in places in the Des Plaines 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 responsive. Motion overruled.) (Said ruling appears on Trans, p. 2598.) 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 Des Plaines River is a navigable liver ? Counsel for Coniplaiiianl : TIk; (jiuistioii is ol)j(;ct(Ml to, as not eross-exainination, and as enibracan^' elenienls of sup- posed legal determination by the Supreme Court, whieli should l)e separated from the ((uestion; so that that element can be judged of separately. The witness ])robably refers to the ease wliicli has been cited by eoimsel for defendant in the argu- ment for an injunction in this case, in wliicli 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 ref- erence 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, who desired to obtain and make use of the water of the river ; .one for the purposes of his mill, and the other for the 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 Des Plaines River. Witness: I have always understood that the Des Plaines River 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 tlie court ruled. Objec- tion overruled.) (Said ruling appears on Trans, p. 2597.) From your knowledge of the Des Plaines River, 1 ask you, in your opinion, whether or not the Des Plaines River ever was or now is capable, without inqn'ovement, of car- rying commerce in the ordinary way in which commerce is carried on in this country? Counsel for Complainant: The same objection made to all the (piestions before may be considered to each and all of them re])eated here.” (The trial court having ruled at a ])rior ])oint in the trial that the objection of the complainant above mentioned was sustained, counsel for detendant sul)se(juently again called the attention of the court to the said objection in connection with the direct examination. Thereu])on the court ruled. Olqec- tion overruled.) (Said ruling ap])ears on Trans, p. 2597.) ‘W. Why, in its ])resent condition you couldn’t carry on commerce. Of course, I understand you can ])ut a fiat bot- tomed boat on a river and put a wheel on the ])ack end and navigate it in three feet of water. 910 (^. That the eiirrciits in tliis river are such that you simply could not ^o 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 resnonsive. Motion overruled.) (l)ep. of A. C. Clement, Cross-Exam., Abst., pp. 396-8.) Re-direct Examination. Your statement on cross-examination of your opin- ion as to the non-navigability of the river is meant to apply to the river without improvements in the respect you men- tion in your direct examinaton 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 attor- neys, 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 ideri in my own mind what naviga- bility means, I haven’t got any. Q. And having given your impression from the state- ments from other attorneys, you were repeating opinions so obtained, in answer To Mr. Munroe’s question? A. Yes, sir; I never have looked it up. Q. Yon don’t mean to be now understood as expressing an opinion of your own on that subject? A. I have no opinion.” (Dep. of A. C. Clement, Ke-direct Exam., Abst., p. 399.) 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 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. Re-cross Examination. ‘‘There was a very current at McDonough street since the dam was taken out. Q. Assuming that dam numher 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 tlie conditions in the river, 1 will ask you to state whether or not in .your opinion the Ues Plaines is capable, in its pres- ent STATE, of carrying the commerce of this country up and down the river I (Objected to as not re-cross and because the witness has declared he has no opinion and because of indefiniteness and as irrelevant, incompetent and immaterial.) A. The rapids at the Sault Ste. Marie are 16 feet fall there in a mile; and the rapids are so stiff there that noth- ing 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, yon 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 over- ruled.) (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 couldn’t get up. Counsel for Complainant: We will enter a motion to strike out fhe re-cross examination. (Euling on said motion at the trial of said cause: The Court: I overrule these motions on the ground that these ^‘motions to strike out are not made in time. Referring 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 faking of the deposition. Sadi ruling appears on Trans, p. 2599.) (Hep. of A. C. Cle- ment, Abst., pp. 400-1.) This witness had had intimate knowledge of the river from per- sonal use of it for 86 years. He had started in life as a lawv^er, but drifted off into the real estate and loan business and had no opinions of his own as to what constituted navigability and plainly said: “Not having any clear idea in my own mind what naviga- bility means I haven’t got any. I never have looked it up. I have no opinion.” 912 It is sulnnitted that undcT these eireuiiistances the answers wJiieli lie ^ave on cross and re-cross examination repeating the opinions he liad received from other attorneys, ought not to liave been allowed to stand. And the suggestion of the trial court: overrule these motions on the ground that these mo- tions were not made in apt time,” is, it seems to us, entirely too narrow and teclmical. The ob- jections and motions were made and entered while the vfitness was on the stand. The taking of depositions proceeded from day to day for weeks thereafter, his (Reposition having been taken February 19, 1908 (Abst., 390) and filed April 18, 1908, and the hearing begun in Court April 20. But further, tlie wutness states that there was' water for a boat drawing two feet, all the way, and by clearing out boulders from three different places in the 16-mile reach, which three places occupied altogether in the neighborhood of three-ouarters of a mile, a boat drawing three feet of water could be navigated all the way. This is important as a matter of fact tliat the alleged boulder obstructions taken all together wouldn’t interfere for more than three-quarters of a mile and wouldn’t interfere at all for a boat drawing two feet, and would only amount to an interference for that short distance for a boat drawing three feet. And he said: understand you can put a fiat-bottom boat on the river and put a wheel on the back end navigated it in three feet of water.” Still some attorneys had told him that the river was not navig- able,- that the Supreme Court had so decided, and having no opin- ion of his own, he accepted the opinion so suggested to him. Plainly the witness while very well acquainted with the phy- sical conditions of the river as encountered by a boat actually going up and down the same, had no engineering knowledge or navigation knowledge of the technical kind. Plainly he labored under the impression that several others of the witnesses did, that there ought to be six feet of water wfithout an obstruction to make a stream ^Civailable for ])rofit- able coimnorco.” Tliis was wliat they liad seen on tlie canal and iliey believed that notliin^ else would do. Plainly lie was not familiar with the great list of steamboats given in House Document 264, which plied the Mississippi and Ohio Rivers drawing two feet of water. Plainly he was not familiar with the development of the motor freight boat running on from 9 to 30 inches of water. Again, he says: ‘‘The rapids at the Saulte Ste. Marie are 16 feet fall there in a mile, and the fall through here to the head of Lake Joliet is nearly double that amount.’’ While the correctness of Cooley Exhibit 3, Mr. Cooley’s con- solidated profile, was conceded, and it shows the elevation of Dam No. 1 to he 57 and the head of Lake Joliet to be 77, a fall of 20 feet in a distance of three miles, DamNo.l is at 2 8/10 miles form the power station, and the head of Lake Joliet at 5 8/10 from the power station. (See Cooley Exhibit 3.) In other words, the measured fall by actual survey in the three miles in question is 20 feet, or about 7 feet to the mile. Substantially the same is shown by the House Document 263, p. 41, only more favorable to the State. The elevation at Jeffer- son Bridge is there given at 533.6. Hennepin datum and the elevation l^ miles below Brandon Bridge (which is the head of Lake Joliet) is given as 517.6, the difference l)eing just 16 feet. The witness said that the fall “is nearly double that amount.” Here again he was plainly quoting wliat some peojile had told him, without knowledge. We respectfully submit that the court erred in retaining this cross-examination and giving it, as plainl}^ was done, controlling- weight against the clear proof by the witness of the physical char- acteristics of the stream, giving it plenty of depth and showing that the obstructions taken all together didn’t amount to more than three-quarters of a mile. The physical conditions which he actually knew and testified to from intimate knowledge, were plainly shown by the other evidence to be the facts which characterize a navigable stream; and by a tal)k‘ of boats, to be of the kind tliat would admit navi- i»ation by sneli boats as are in actual use. Tbe obstructions aggregating- tliree-cjuarters of a mile in the 1(1 miles l)ecame trivial in tbe light of the decision in the Mon- tello case and in the other cases which we have assembled else- where in Division 8, Part 7, Cl. 2. ''Removable difficulties and partial limitations do not control navigability.” Again it will be observed that the witness had used the stream every year from 1864 to 1900. The years 1864 to 1871 inclusive, made between 7 and 8 years of use before the Deep Cut water was turned in, giving familiarity with the Des Plaines River when all the depletions were at work and none of the increases of its water supply. And again, he had not used the river since 1900 when the drainage water was turned in. His testimony was as to the river as a depleted river and not as an augmented river. Again, the witness was asked to pass on the navigability of the river "in its present state, assuming that Dam No. 1 was not in the river.” This was plainly incompetent, — not only the witness was not an expert engineer or technical navigator, and was not qualified to form an opinion, and vowed that he had no opinion, but he was asked to assume the contradictory and impossible condition of the river remaining in its present state, that is, with the Drainage water all in and Dam No. 1 taken out, and no sort of controlling works provided. This was plainly incompetent. If assumes that the entire body of drainage water should be turned in. Dam No. 1 taken out and the added water left to take its course. The same question was asked the witness Henry H. Pohl (Abst., pp. 444, 446-7), who said he had used the river from 1869 to 1876. He replied: "I don’t know whether the taking out of Dam No. 1 would make any difference after the first rush of water was over. I don’t know that this would -increase the hazard any. Ir 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.” The same questions were asked on cross-examination of the wit- iioss Flanders (Abst., pp. 429, 4:)2) and over ()bje(dion lie vi)- plied : “0, I don’t think it would ])e without the (^onstrindion. ” With that ))artienlar witness we varied the conditions, — since lie was asked on the cross to pass on one impossibility non-exist- ent situation, — by asking him as to a different non-existent hut probable situation, viz: a development of the river as planned by the United States Engineers, which he replied would be navig- able. (Abst., 433.) It is plain that such questions as to conditions which were not only non-existent, but which never did exist and never will exist, are not competent cross-examination of men who are not engineers and who were not called as experts, but who were called only to narrate their own personal acquaintance with, and use of, the river. That the court, at times, was specially technical in sustaining objections against the State, is instanced by its holding that the motion to strike out the cross-examination of Mr. Clement, made while the witness was on the stand, was not in apt time, and that he did .not always adhere to this course is shown by the following a week later in the trial: ‘‘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 rea- sons which might be suggested. The Court: Very well.” (Abst., ]). 1097.) 9. The court erred in receiving in evidence the letter from Lt. Col. W. H. Bixby to Gen. A. McKenzie, Chief of Engineers, dated March 27, lOOO, and by Robert Shaw Oliver, Assistant Secretary of War to Charles A. Afunroe, dated June 7, 190(). (Abst., ])[>. 1296-1301.) These letters set out that Lt. Col. Bixhy, at ( Jiicago, had rec- ommended that “The Hon. H. M. Snap}) and Air. Charles A. Alun- roe be informed that the Wai* Department will waive any and all objections that it may have to the progress of snch water-power dam construction as proposed by Mr. M unroe’s letter of Alarch 20, 1906, and its enclosures, provided that he, on the part of the power dam owners, agrees” to several important items for the ])i‘()tocti()n of the United States Government. Tliey further show that Mr. Oliver acknowledges a letter from Mr. Munroe dated June 5, .190(1, enumerating some fresli conditions, and said ‘Mf these (‘onditions are cornydied with in tlie opinion of the Chief of Engineers, U. S. Army, concurred in hy this department, the work proposed is in general harmony with the work of the im- provement recommended hy the Board of Engineers * * * in its report * * * printed as House Document No. 263, 59th Congress, First Session. Inasmuch, however, as Congress has not as yet authorized the improvement of this river, this depart- ment does not deem it expedient to take further and definite action in the matter of approving the plans. (To) Charles A. Munroe, Very respectfully. The Kookery, Egbert Shaw Oliver, Chicago, Illinois. Assistant Secretary of War,” (Abst., p. 1301.) The admission of these letters was error. The letters of Mr. Munroe of March 16 and March 20, with the three blue-prints accompanying the same, upon which the opin- ion is based, were not produced. The identity of what was submitted by Congressman Snapp and Mr. Munroe to Mr. Bixby with the work now being done by de- fendant is not shown. The letters refused to give a federal permit for the work pro- posed by Munroe ’s letters of 1906. As a consolation to the defeated applicant, Oliver assures him that JIcKenzie is of opinion that the plan in Munroe ’s letters and blue-prints (not produced) is in general harmony with the work of improvement recommended in Document 263. This is irrelevant and incompetent against the State of Illinois. The State called Gen. McKenzie as a witness. Defendant in cross-examination questioned him about this correspondence as follows : ‘'Gen. McKenzie: The Engineers’ Report published in 1905 relates to the proposed improvement of that river with locks and dams in connection with the proposed fourteen-foot waterway. It was proposed as a part of the plan suggested that some locks and dams be placed in the Desplaines River. 917 The Economy Liglit & Power Oompany, or Mr. Charles A. Mimroe, proposed to build a dam near the mouth of the Des- [)laines JMver and tiled plans for his work in my office at one time. As a result of the presentation of those plans, which were simply presented for the purpose of seeing whether they were in harmony with the plans for the improvement of the river, — it resulted in Mr. Munroe being informed that under certain conditions they would harmonize with the plans for improving the river. Interrogatory G4: Is not it a fact that those conditions were to be met by Mr. Munroe — that provisions should be made for a lock at the side of the dam, and that the Govern- ment 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 remember fully what they were.” (Abst., p. 173.) Re-re-cross Examination. ‘‘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 department 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.” (Abst., p. 180.) The admission of the letters was error. 10. The Court erred in receiving the testimony of Munroe (Abst., pp. 1611-13) and the trust deed offered and received with his testimony (Abst., pp. 1613, 1712, 1854 1854a, h) as to the ex- penditure of money by Munroe, his negotiations with and sale to defendant company and the making of trust deed and sale of bonds by defendant. (Abst., pp. 1613, 1713, 1854-1854a, h.) All these were res inter alios and irrelevant, incompetent, im- material, and not the best evidence. The manifest purpose was to suggest that some question of purchase for value without notice, innocent purchaser, or hona fide investor, was involved. But there is no such thing as a hona fide purchase of, or invest- ment in property affected with public rights. The purchaser is charged with notice of the rights of the public. 1)18 So hold as to ])ul)Ii(t lands Karr v. Watts, 5 Wheat., 19 U. S., 550. Sou. Pac. 11. Co. V. Dull, 22 Fed., 489. Sviitli V. Johnson, 57 Ala., 653. McCnlUs V. Cop., 51 Fla., 100. And thei-e is no such thing as a hona fide pureliaser or assignee of an illegal and void contract. Williams v. Judy, 5 Gilm., 282 (a gaming note). Tenney v. Foote, 4 111. App., 594 (note for differences on option contract for oats). AVhere one knowingly and by collusion with tlie deputy com- missioner has obtained a patent from the state of lands not sub- ject to sale, and on the next day has made sale of them at a distant place to another who had never seen the lands but who paid for them almost double their value, it will require a pretty strong showing to establish the sood faith of such a purchase. (1875) Atty. Gen. v. Thomas, 31 Mich., 365. A purchaser must take notice of dedication to the public affect- ing the subject of the purchase. Atty. Gen. v. Abbott, 154 Mass., 323, 13 L. E. A., 251. And the same applies to any right of the public. The trial court fell into three fundamental errors. He held that the sovereign State could not attack the contracts made by the Canal Commissioners, however illegal they might be, without making the Canal Commissioners parties. (Abst., p. 788.) In so doing, he was applying a sound general rule of equity prac- tice, but which had no application here, because the statute which creates the Canal Commissioners |)rovides that they shall not be sued. This was the fundamental error concerning the contracts. The court held that the fact that the Canal Commissioners had 919 rroiiiuMitly given nwny llie light lo ili(‘ IxmI of tli(‘ str(‘ani in tin* })ast, or let llieir grantees so ('laiin, and had let tlnhr gi‘ant(X‘s use the bed of tlie stream in the ])ast, proved that no right in tin.* bed of tlie stream existed on the ])art of the State. Tliis was the fundamental ei-ror respecting the title to the lied of tlie stream. He held that the stream liad never lieen used except a few times going down stream, and that therefore it was not navigable be- cause this was not commerce. This was the fundamental error concerning the navigation of the stream. The proofs showed, and universal history shows tliat it had been used innumerable times in both directions: And the law shows that navigation one way, and that down stream, is enough. But what constitutes coinmercef Thonsand-ton steamboats with smokestacks seventy feet tall? Or thousands of tons of goods in lioxes, barrels, and bales ? Are these commerce? No. The former are some of the instruments, and the latter are some of the subjects of commerce. But coDmierce itself is hninan intercourse. The trial court regarded himself lionnd by the decision in tlie Schulte case, 218 111. We have shown elsewhere that, rightly understood, the Schulte case is a sti'ong authority in favor of the State. It expressly holds that the etfect of the o])ening of the Sanitary District (diannel and the turning of the waters of Lake Michigan thereby into the Des Plaines and Illinois rivers, was to increase the jieimanent snl'mergeiice of the bed, and lianks, and deptli of the stream, and to inci-ease and extend the right of navi- gability. (218 ill., 120.) Ihit it is snbmijted fnrtlier that tlie case there arose n])on a bill to restrain the defendant ‘‘from huntiiuf over the lands of appellant.” The detendant (daimed the right of hunting over the lands of ap])ellant fi'om the boat by which he navigated. The 920 coiii])luiiiant denied defendant’s right to hunt, and filed his bill to test the (juestion. Tlie court decided that the right to hunt and fish over the water upon his iand was the rigid of the riparian owner, and was not a common right. It is submitted that the expressions of the court in such a case between private parties over the right to hunt and fish, should not l)e given a controlling effect adverse to the claims of the State based upon more than two hundred years of history and upon a uniform assertion of state policy throughout its legislation. This court has never been wanting in that last and highest at- tribute of a great court, — the ability and the disposition to recog- nize that its own utterances must be modified from time to time in order that the living principle of the law may keep pace with the growing and changing necessities of society. In this very field of navigation, this court has shown its ability and disposition to reject the narrow restrictions of a former age. Its abandonment of the tide-water test after it had repeatedly given expression thereto, is a signal instance of the exercise of this power by this court. The action of the Federal Court has been equally inspired by an appreciation of the needs of society. In Genesee Chief v. Fitzhugh, 12 Howard, 443 (1851), the Su- preme Court, by Taney, C. J., in the case of a collision on Lake Ontario, held that the inland lakes and navigable waters connect- ing them, were within the scope of the admiralty and maritime jurisdiction conferred upon congress by the constitution, as that jurisdiction was known and understood in the United States when the Constitution was adopted, and the Court rejected the doctrine that such admiralty jurisdiction was confined to waters in which the tide ebbed and flowed. In so doing they overruled their own former decision in the Thomas Jefferson case, 10 AVheaton, 428, decided in 1825, and in which the opinion was delivered by Mr. Justice Story. That early case had denied the admiralty jurisdiction in a suit for wages on a voyage up the Mississippi Eiver. And that early case had been followed in the case of the Steam- hoat Orleans in 1837, 11 Peters, 175, which involved a claim for 921 partition by a part owner by an admiralty sale, and claims for wages by sailors upon boat navigating the Mississippi. Tiie opinion in that (*ase was by Mr. Justice Story. The court in 1851 embraced three of the seven judges who liad united in the decision in the 11 Peters. The Court in the Genessee Chief case said, page 456 : ‘Mt is the decision in the case of the Thomas Jefferson which embarrasses the court in the present inquiry. We are sensible of the great w^eight to which it is entitled. But at the same time we are convinced that, if we follow it, we fol- low an erroneous decision into which the court fell, when the great importance of the question as it now presents itself could not be foreseen; and the subject did not therefore re- ceive that deliberate consideration which at this time would have been given to it by the eminent men who presided here when that case was decided. For the decision was made in 1285, ivhen the commerce on the rivers of the ivest and on the lakes ivas in its infancy, and of little importance, and but little regarded conipared with that of the present day. ‘^Moreovejv^ the nature of the questions concerning the ex- tent of the admiralty jurisdiction , ivhich have arisen in this court, ivere not calculated to call its attention particularly to the one ive are now considering . ‘‘The point in dispute has generally been, whether the jurisdiction was not as limited in the United States as it was in England at the time the Constitution was adopted. And if it was so limited, then it did not extend to contracts for maritime seiwices when made on land; nor to torts and col- lisions on a tide-water river, if they took place in the body of a country. The attention of the court, therefore, in former cases, has been generally strongly attracted to that question, and never, we believe, until recently, drawn to the one we are now discussing, except in the case of the Thomas Jefferson, afterwards followed in the steamboat Orleans v. Phoebus, as already mentioned. For, with this exce])tion, the eases al- ways arose on contracts for services on tide-water, or were upon libels for collisions oi* other torts committed within the ebb and flow of the tide. There was therefore no necessity for inquiring whether the jurisdiction extended further in a public navigable water. And following the English defini- tion, tide was assumed and spoken of as its limit, although that particular question was not before the court. “The distinction would be purely artificial and arbitrary as well as unjust, and would make the Constitution of the United States subject one part of a })u})lic river to the juris- diction of a court of the United States, and deny it to another l)art e(iually i)u])lic and luit a few yards distant. It is evident tliat a definition that would at tiiis day limit ])ul)rK‘ rivers in this country to tide-water rivers is utterly in- admissible. AVe have thousands of miles of public navigable water, including lakes and rivers in which there is no tide.” In GihJ)ons v. Ofjden, 0th AVheaton, 1 to 240 (1824), the Court decided that the acts of the legislature of New York granting to liOBEUT 1C Livingston and Kooert Fulton the exclusive naviga- tion of all the waters within the jurisdiction of the State with boats moved with tire or steam for a term of years, was repugnant to the clause of the Constitution of the United States which au- thorizes Congress to regulate commerce, in so far as such acts prohibit vessels licensed according to the laws of the United States for carrying on a coasting trade, from navigating those Xew York waters l)y means of fire oi* steam. Afr. Emmett, counsel for the Livingstons and Fultons, argued that this grant was a contract (see p. 81) ; that there were in all six consecutive and deliberate acts of the judges of the courts of Xew A"ork sitting as a council of revision, ajiproving these grants and contracts (see pp. 81 and 82); that these grants had been made in 1798 and liad continued until 1811, and that similar grants had been made in Alassachusetts, Xevc Hampshire, Penn- sylvania, Georgia and Tennessee (see pp. 82 and 83) ; and after a glowing picture of the benefits to mankind from these inventions which he claimed had been specially fostered and developed by means of these grants. He said : ^LAnd it is, after all those advantages have been acquired and realized to the world — after numerous individuals have embarked their fortunes, on the faith of those grants, and a ten years acquiescence in the decision by which they were sanctioned — after the property they have created has been diffused among a multitude of possessors— after it has become the sole support of the widow and the orphan — after it has re- ceived and exhausted tlie accumulated savings of the labori- ous and industrious heads of families, that a decision is re- quired, which cannot, indeed, undo the lasting benefits already procured to the world, but would, assuredly, undo many of ilioso wlio luivo ('oiiHdod their wc'nitli niid iJUiatis to tli(‘ slahil- ity and obscM’vaiu'o of tliose laws.” The eonvt deeided, on |)aj^e 189, that the power regnlatini^ eoni- ineree extended to tlie regulation of navigation, and on pages 19d, 194, to every form of commercial enterprise, and to commerc'e wliicli is completely internal within a vState, and that the power to regulate commerce extends (p. 125) to navigation carried on l)y vessels exclusively employed in the transporting of passengers. The court said : ^‘The boats of the appellant were, we are told, employed in the transportation of passengers; and this is no part of that commerce which Congress may regulate. * * * coast- ing vessel employed in the transportation of passengers, is as much a portion of the American marine, as one employed in the transportation of a cargo; and no reason is perceived why such vessel should be withdrawn from the regulating power of that government, which has been thought best fitted for the purpose generally.” This case is important to the present discussion. It excludes absolutely the contention of the defendant that boats must he carrying freight in order to he engaged in navigation. And it excludes absolutely the idea that large investments made in good faith and for ])eneficial ])urposes constitute a reason for abridg- ing the powers of the government. (This court here knows that whatever investment the defendant made was not sufficient to enable it to ^ffinance the work” of building the dam. See its suggestions filed October 15, 1908, in this court in opposition to the motion for time to file abstracts and briefs.) Again, it was contended for the defendant in Gibhons v. Ogden that this form of navigation by steam was a netv thing, that it was not included within the very general expressions of the constitu- tion and the power to regulate commerce; that this new and im- proved method of navigation changing the state of the art and revolutionizing the methods of navigation, was not within the puiwiew of the Constitution; that therefore navigation by steam was a different thing from the navigatioii embraced, ivitliiu the commerce clause of the Constitution. 924 So liere it ]ias been eontended contra that navigation by the modern motor boat was smaller on the one band, and navigation by steam vessels was larger on the other, than the navigation con- templated by the Ordinance of 1787. The decision of the court in Gibbons v. Ogden (pp. 219-220), disposed of both of these conten- tions, that great organic general provision extended to all the future develojanents of the art, large and small. The court said: ‘^That subject is left entirely to individual discretion; and, in that vast and complex system of legislative enactment con- cerning it, which embraces everything that the Legislature thought it necessary to notice, there is not, ive believe, one ivord respecting the peculiar principle by ivhich vessels are propelled through the water, except what may be found in a single act, granting a particular privilege to steam boats. With this exception, every act, either prescribing duties, or granting privileges, applies to every vessel, whether navi- gated by the instrumentality of wind or fire, of sails or ma- chinery. The whole weight of proof, then, is thrown upon him who would introduce a distinction to which the words of the law give no countenance. ’ ’ ^‘The one element may be as legitimately used as the other, for everv commercial purpose authorized by the laws of the Union. ^ (The expansion of commerce by the motor-boat is within the protection of this decision.) And Mr. Justice Johxsox, in his separate concurring opinion, added : ^‘The grant to Livingston and Fulton interferes with the freedom of intercowrse among the states, and on this principle its constitutionality is contested. When speaking of the power of Congress over navigation I do not regard it as a power incidental to that of regulating commerce, I consider it as the thing itself, inseparable from it as vital motion is from vital existence.” The Wheeling Bridge case, L3 Howard, settled the law that the navigable character of a stream is a matter both of science and of history, and in reaching a decision thereon the court will exercise its own wide knowledge both of science and of history. They said: ‘‘That the Ohio Liver is a navigable one is an historical fact which all courts will recognize.” And this was the stream which had in it a fall of twenty-six I'oet ill loss tliaii two miles, and in wliioli liio water annually readied siicli a stage tliat the early navigators in their hatteaux had to get out and wade and pnll their lioats over tlie liare rock, — a stream wliicli in the last season, in spite of the expenditure of millions for its improvement, fell to a depth of barely eight inches. In the Montello case, 20 Wallace, 430, the Federal court showed its ability and disposition to recognize the claims of history and the needs of society, and to overcome the ^‘difficulties,” “obstruc- tions,” “interferences” and “impracticable passes” suggested in the law, just as effectually as the early navigator overcame them in the streams of the Northwest Territory. The case of the Genesee Chief, 12 Howard, 443, showed a signal capacity of the court to correct former expressions not adapted to the condition of the country, to the character and habits of our people, nor to the needs of future development. The case of Gibbons v. Ogden, in 9th Wheaton, recognized the necessity of putting aside any narrow and technical definition of commerce as a subject of navigation, and broadened it out to in- clude all human intercourse by means of navigable waters. The commerce which is an element of navigation is not simply the carrjdng of freight. It is any form of human intercourse effected by water transportation. And the Montello case, 20 Wallace, settled the law that the ex- istence of such difficulties, obstructions, portages, and imprac- ticable passes, did not deprive a stream of navigability. The proof in the case at l)ar makes it clear that the difficulties sug- gested to exist in the Des Plaines are slight, compared with those upon the Fox Piver which was the subject of that case, and upon most of our smaller rivers; and makes it clear that none of the navigable streams of the country are free from tliese same diffi- culties, that the largest streams, like the Mississippi and the Ohio, have also been marked by the greatest difficulties, and that it is one of the important objects of our governments, state and na- tional, to conserve these highways of nature, to remove their dif- ficulties and obstructions, and to promote their use in the human intercourse by which and for which the States exist. And foi- these reasons we resi)eeif'nlly sn})mit tluit the decree l)el()w si ion Id he reversed. Kespectfnlly snl)initted, WiLiJAM H. Stead^ Attorney General. Walter Heeves, Merritt Starr^ Special Counsel for The People. Peck^ Miller k Starr^ Peeves, Osborn & Griggs, Of Counsel for The People. APPENDIX. PAGE I. Opinion of Trial Court - - - - 1 II. Monographs of Dr. W. F. Poole and Gover- nor Edward Coles ----- 9 III. Early Documents 19 A. • * ! % M. t / • ■4k ■'± 1 ^, APPENDIX I. Decision by Trial Court, Mack, J., June 25, 1908. We li ave been with this case so long that the only purpose of further consideration before delivering an opinion would be to enable the Court to formulate an opinion more concisely and with the citation of evidence or law such as is iinpossible in rendering an opinion at the conclusion of the argument. But as the views of the Court are sufficiently clear on the evidence and the law to enable him to render an opinion at this time, I deem it my duty not to delay for the purpose of clearer or more exact formulation of the various points raised in the case, and that should be decided, or to enable the Court more thoroughly to digest all of the evidence. I have listened carefully to the evidence as it was given and as it was read, and have been weighing it in my mind ever since. I have carefully examined the United States Supreme Court, and the Illinois cases that have been cited, not carefully the cases in the other jurisdictions. It seems to me that the fundamental point on which the (‘ase of the State was made, was that on which the Chuirt has already ex- jiressed an opinion, as to the ownership of the bed of the stream, incident to the ownership of the land without the meander line. The conclusion of the Court, based both on the ])ractical construc- tion given by the Commissioners for sixty or seventy years and never disputed so far as the evidence shows, as well as on the inde- ])endent construction that the (h)urt would give to the Act of 1859 and the later Acts and their effect on the Act of 1889, is as hert^- tofore stated, that that ])ro vision in the Act of 1889 affected only conveyances made under that Act and did not affect conveyances made under the Act of 1848 and subsecpient legislation. That while the section in the Act of 1889 did lay down a general rule for the construction of ('onveyaiu'es, and did ex])ress a ])urpose on the ])art of the State to retain the ownership of these lands without 9 tlio line, y(‘t by fhe voiy teiins of the section of this Act the conditions of conveyances were limited by tlie Act in express langnao(. to conveyances made under the provisions of that Act. 'Die Act of IHdd changed the entire i)a.]icy of tlie State with refer- ence to tlie canal. It was due to a change in condition that ren- deied it necessary for the State to yield up its riglit and power for the purpose of raising money to complete the canal. The power of sale granted to the Trustees contains no such limitations as that theretofore placed on the Commissioners. Apart from any question of repeal by implication, it seems to the Court that the Act of 1839 no longer controls the sales made under the Act of 1843. So the main position of the State based on the ownership of these lands, which, if it had been maintained, would have given the State this water power, is lost by reason of the decision of the Court against the State on that point. Now, whether the river be navigable or not navigable at any time, the ownership of the land in the bed of the river and every possible right in and to the water of the river and the land is, under the law of Illinois, in the owner of the land bordering on the river, subject only to one right on the part of the public, the right of navigation in case the stream be navigable. And the only right of the State to interfere with the defendants, apart from any ques- tions as to the effect of the Canal statutes and the contracts and the ownership of the towpath, would be to prevent a nuisance. The only nuisance that could be created by these works, that could be claimed to be created by these works, would be an obstruction to navigation. I believe under the decision in the Carpenter case in the 68 Wis., that apart from any question of navigability or non-navigability of the river, in the present condition of that river as to actual navi- gation, this bill would have to be dismissed on the ground that there is no obstruction to navigation, even though that which is there being done might be an obstruction to future navigation if the river were considered navigable. But even in that event I should deem it my duty to dismiss the bill without prejudice to the right of the State to renew its application for an injunction if navigation actually took place in that part of the river and if thereby these works became an obstruction to actual navigation. But I do not believe Hint it would lie rigid to sto[) lieni, nfter the tlioroiigli presentntion of the evidence, and the thorough argu- ment of tlie questions involved. I believe it is the duty of the Court to go further and not to dismiss the bill on a narrow ground such as that which is just suggested, namely, that there is at present no navigation, and that therefore at the present time, there could be no obstruction to navigation. I believe it is the duty of the Court to decide the broad question as to whether or not this stream is a navigable stream. Whatever the Court might think ought to be the definition of a navigable stream I am again bound by the decison of the Supreme Court of Illinois. In the Schulte case, 218 HI, it lays down the rule, as do the earlier decisions. If this river in its natural condition, in its ordinary stage of water, was susceptible of navigation, even though it might have obstructions in it, if it was susceptible of navigation, not merely canoe navigation for hunting and fishing as the Supreme Court says in the 218, but susceptible of navigation for commercial purposes for the products that might be raised along the banks, or for the distribution of merchandise to the people along the banks, or as a connecting link between the larger towns above and below it, it would be a navigable stream. The burden is on the State to establish that it is a navigable stream. My judgment on the evidence is that that burden has not been sustained. My judgment on the evidence is that the contrary has been sustained, that the Des Plaines Eiver, even though there might have been some slight use of it down stream on rare occa- sions, would not be deemed and could not be deemed at any time in its history, either in 1787 or earlier, a navigable stream within the definition laid down by our Supreme Court. The conditions as to the amount of water, the declivity, sinuosity, the bed of the river, rocks, boulders, the length of the river, are totally ditferent from those of some of the other rivers that in some respects are navigable streams. Even though some other rivers may under some conditions be navigated on the amount of water that possibly does exist for some part of the year in this river, the testimony of experts as to those other rivers does not convince the Court that the Des Plaines is or was navigable in the sense used by the Su- preme Court. 4 As to the effect of the Sanitary District Act of 1889— tlie Act provides for damages, for com})ensation, damages suffered by the overflowing of ])roperty tlirough these Sanitary works. But some- thing mucli more tlian a mere overflowing or other damage would liave to be found before the people of the State could claim the right to navigate that river. The mere fact that by reason of the ('onsti'uction of the Sanitary District and the flowing of these waters tliei'e may now l)e sufficient water to enable navigation to be car- ried on in the river, and the fact that the State has put or caused those waters to be put there, and the further fact that the State lias provided that owners of rights or property who are damaged by overflow or otherwise, may recover their damages from the Sanitary District, does not, to my mind indicate that the State has even attempted (diregarding the question of constitutional law of whether it could or could not take without prior compensation paid,) — has even attempted to take from the owners of that prop- erty an easement of navigation for the public. The whole spirit of the Act of 1889 seems to negative any such construction because I agree with the construction of the defend- ant that navigability of the channel means navigability of the Drainage channel and nothing else. The State has not attempted to declare in so many words, or in effect that the public shall have the right to navigate because in fact there may now be water there sufficient to enable navigation to be carried on. And therefore, in my judgment, the easement of navigation has not been attempted to be created by the Legislature over these lands. I think it would take further action on the part of the Legislature and the courts before the public could acquire the easement of navigation in what may now be a stream capable of being, navigated but which before the new waters were poured in, was a non-navigable stream. Now, as to the effect of the dealings with the Canal Commis- sioners. While it may be premature to pass judgment on the validity of the option clause in the lease, yet in view of the thor- ough argument of the question I cannot refrain from expressing an opinion that I cannot see any basis in the law for that option clause. But whether that clause be valid or invalid, the State would have no right to interfere. If it be invalid it does not affect the lease itself. It is not an integral part of the lease; if null and void ns boiiio- beyond the ]) 0 Wer of the ('oniinissioners lo niak(^, the entire instrnnient must not be deelared void, l)eeanse tli(‘ k^ase. is made se])arate and distinct from this (‘lanse. The $500 ii» dis- tinctly expressed to be tlie consideration for tlie lease for twenty years, and the lease for twenty years is distinctly granted for the consideration of $500 paid. When in the lease there are contained mntnal covenants, each being the consideration for the other, tlie one that the lessee will take over at that price for a subsequent term if it be given to him, and the other that it will be given as against any other bidder at the same price if it be decided to lease at all. -That is merely a bi-lateral contract injected into the lease. Standing on its own consideration it has 'nothing to do with the consideration named in the lease, and for that reason it cannot be held to affect in any manner the lease itself. If that option clause be void, and as I said, the Court is of the opinion that it is void, no rights could be acquired under it, and after the end of twenty years, so far as the rights of the tenant depend upon the clause in lease, if any attempt should be made to carry them out, the State would have its remedy, and to guard against any possibility the other way, that right may be preserved in the decree. Now as to the interpretation of the lease and the flowage con- tract ; in my judgment these two documents are distinct and sepa- rate; they were intended to be distinct and separate. They were so intended by the parties, and they use express language which clearly indicates this. They are two separate documents, botli sealed instruments, and that as a matter of common law would make them separate and distinct deeds. Then the second instru- ment refers in terms -to the first and charges the grantee expressly with knowledge of it. There would be no need of charging the grantee with knowledge, particularly as the grantee was the same person, if they were intended to be constructed together. The very fact that he is expressly charged with' knowledge of another in- strument in the making of a second instrument, is to my mind clear evidence that the parties intended that the instruments should be separate and distinct, both being assignable in their nature. But when it comes to the rights of the lessee under the lease, and the effect of the absence of any limitation in the lease on the use to which the property shall be put, the Court is of the opinion. first, that at ('oininon law the only limitation on the ri^lit of the defendant would be tliat it do not commit waste, and second, the reference in the lease to the first a^i;’reement, wlietlier it be a valid or void agreement, shows clearly that the lessor had in mind the jmrposes for which this property was to be used, and was not un- willing that it should be used for the purposes stated in the con- tract. And if there were any doubt as to the powers of the lessee, unless there be a clear rule of law that in the absence of a speci- fication of the use, such a use as is here contemplated is impossible, the surrounding circumstances may be looked to for guidance, and these show that the intention of the parties was that the property was to be used under this lease for flowage purposes. I hold therefore, that under the lease the lessee and his assigns have the right to overflow the property thereby leased and to at- tach the dam to the tow-path, there being nothing in the lease in- consistent with this right. As to the contract itself, there being no limitation of time, it seems to me that it is an attempt on the part of the Commis- sioners to grant a right in perpetuity to Griswold and his assigns to overflow the land; and the grant of such a right in perpetuity is equivalent to the sale of an interest in the land, the sale of the easement, and that such sale of the easement is beyond the power of the Trustees because they could not make any sale at all of the 90-foot strip. So far as the balance of the property is con- cerned, outside of the 90-foot strip, the State could not complain because they are no longer owners of the property. That land has been sold, and whether the auction had been conducted — I didn’t think that question was raised again in argument; it was raised before argument, — by a clerk or by the secretary, the sale having- been made in accordance with the law, and the law not specifying that the Commissioners, or one of them shall be the auctioneer, but merely specifying that the sale shall be by public auction to the best bidder, I believe a sale so conducted by auction to be valid. It is not like a grant of property in trust to the Trustee with specific power to him to sell at private sale or auction, which contemplates that he shall make the sale, and which therefore requires his actual ])roseiK*t\ tlie law 'simply says, ^‘Tlie land shall lx; sold at i)ul)li(‘ aiudion to the lii^hest and host bidder.” As to the aqueduct and the feeder I believe in the first place that the aqueduct has been long since abandoned. Whether the (hinal Commissioners at the time of the abandonment had the power to abandon it or not, the actual abandonment has been long acquiesced in. There is no question of the twenty-year statute of limitation or any acquisition of adverse rights by others involved in the case. There is the mere fact of abandonment or non-use of it. The Trustees or Commissioners were empowered to manage and control the property. The testimony is unanimous that the proper .control and management of this property, the proper management of that canal does not involve the keeping up of this aqueduct to feed it, and I believe therefore that the Trustees were not going beyond their power when they permitted this aqueduct to go into non-use. But the 'situation in 1904 was that there was no use for that aqueduct, that it was of absolutely no use to the canal; and while the Canal Commissioners of the State had the legal title to the stones that constitute the abandoned and broken down piers, the mere taking up of those stones and putting them some place else comes, in my judgment, within the reasonable power of the Canal Commissioners. If they liad done more than that and had given them away to the defendant, then the State would have an adequate remedy at la\y for any damages it would have suffered in that resjoect. This would be so too as to the ]n-ovision for the gravel and other material. As a matter of fact, under the con- tract it was not given away; it was sim]:)ly to be moved and used in the building up of those additional two feet on the towpath bank. It was the property of the State and remained the ])r()perty of the State. The Canal Commissioners, in my judgment, had the power to enter into a contract of that kind, to ])ermit defendant to take away part of the gravel and put it somewhere else, for that tended to the development of the tow-path, the protection of the canal, and the betterment of the situation. The Chnnmissioners had the power. Whether they used the power wisely or not, is not for the Court in this case to say. The Court regrets as much as (‘ounsel for the State that many 8 of the natural ri^lits wliirli could be utilized for tlie benefit of the people of tlie State liave not been i)reserved by tlie State but have been ^iven away. The Court regrets particularly that since pioneer days and even today rights of vast value to the x)ublic are fre- (luently given away by the State, government and municipalities, but that 1 regret, not as a judge but as a citizen. As a judge of course I can only take the law as I find it, and taking the law as [ find it, it is the opinion of the C^ourt in this case that the bill should be dismissed for the reasons stated. APPENDIX IT. HISTORY OF THE ORDINANCE OF 1787. 1. From monograph by Dr. Wm. F. Poole. 2. From monograph by Governor Edward Coles. Dr. William Frederick Poole, for many years librarian of the City of Chicago and of the Newberry Library, and author of Poole’s Index to Periodical Literatnre, was the author of a valu- able work entitled ^^The Ordinance of 1787, and Dr. Manasseh Cutler as an Agent in its Formation,” which was published in 122 North American Review, pages 122 et seq. From this work we make the following extracts : ^‘The Ordinance, in the breadth of its conceptions, its de- tails, and its results, has been perhaps the most notable in- stance of legislation that was ever enacted by the representa- tives of the American people. It fixed forever the character of the immigration, and of the social, political and educational institutions of the people who were to inhahit this imperial territory. * * * (p. 3.) Then, after an abstract of the Ordinance : ‘^Such are some of the broad and enlightened provisions which have made the Ordinance of 1787 so beneficent and memorable. They entered not only into the organic laws of the territory, but were made perpetual and irrepealable. When new states were organized on this territory the people were not left with the discretion of accepting or discarding the pro- visions of the Ordinance in their constitutions. Its vital prin- ciples, some of which have been enumerated, were embodied in six ^articles of compact between the original states and the people and states of said territory, and forever to remain un- alterable unless by common consent.’ It was well understood that common consent to any material change could never be obtained. No other instance exists in American legislation of laws enacted under the form of ‘articles of compact,’ except in the ordinance relating to this same territory drawn by .Mr. »Jef- ferson in 1784. * * * (p. 5.) “Judge Timothy Walker of Ohio, in an address delivered at Cincinnati in 1837, said: * * It approaches as nearly to ubsolnte perfection as anything to he found in tlie legisla- tion of mankind; for after the experience . of fifty years, it would ■i)erliaps he iinpossihle to alter witliout marring it. In short, it is one of those matchless specimens of sagacious fore- cast which even the reckless spirit of innovation would not venture to assail. * * (p. 7.) ‘‘Mr. Chase, late Chief Justice of the United States, in the introduction to his ‘Statutes of Ohio,’ said: ‘Never, prob- ably, in thQ history of the world, did a measure of legislation so accurately fulfil, and yet so mightily exceed, the anticipa- tions of the legislators. The ordinance has well been de- scribed as having been a pillar of cloud by day and of fire by night in the settlement and government of the Northwestern states. * * (p. 8.) “Mr. Webster, in the speech which has been quoted, as- cribed the authorship of the Ordinance solely in Nathan Dane of Massachusetts, and this has been the commonly received opinion on the subject since that time. Mr. Benton of Mis- souri, and Mr. Hayne, promptly challenged the accuracy of the statement upon the spot. * * * (P- 8-) “ ‘Mr. Dane was no more the author of that Ordinance, sir, than you or I, who about that time were mewling and puking in our nurses’ arms. That Ordinance, and especially the non-slavery clause, was not the work of Nathan Dane of Mas- sachusetts, but of Thomas Jefferson of Virginia.’ * * * (p. 9.) “On the 1st of March, 1784, a committee consisting of Mr. Jefferson of Virginia, Mr. Chase of Maryland, and Mr. Howell of Rhode Island, reported an ordinance for the temporary gov- ernment of the territory. * * * (p. 11.) “It proposed, also, five ‘articles of compact,’ which were quite unlike the six articles in the ordinance of 1787. The fifth article was as follows: ‘That after the year 1800 of the Christian era, there shall be neither slavery nor involuntary servitude in any of the said states, otherwise than in the pun- ishment of crimes, whereof the party shall have l)een duly convicted to have been personally guilty.’ * * * “Six states only voting for Mr. Jefferson’s anti-slavery clause, it was lost. The ordinance, ^vithout any slavery re- striction, passed April 23, 1784, and was, chiefly from the absence of such a restriction, a dead letter. No settlement of the territory was made under it. (p. 12.) “March 16, 1785, eight da^^s after the date of Mr. Picker- ing’s letter just quoted, Mr. King of Massachusetts, seconded by Mr. Ellery of Rhode Island, moved that the following reso- lution be committed : “ ^Resolved, That there shall be neither slavery nor involun- tary servitude in any of the states described in the resolve of 11 . Congress of tlie 2^(1 of April, 1784, otlierwise than in tlio pun- ishment of crimes wliereof the party shall have been personally guilty; and that this regulation shall he an article of compact, and remain a fundamental principle of the Constitution be- tween the thirteen original states, and each of the states de- scribed in the said resolve of the 23d of April, 1784.’ Eight states' voted to commit, and three states (Virginia, North Carolina and South Carolina) voted in the negative. The resolution was therefore referred to the committee of the whole, there being no committee on the territories. * * * The resolution went to the committee, and was never called up for action by Mr. King, Mr. Dane, or any other member ; and so far as appears, was never again alluded to. * * * (pp. 13-14.) ‘^On the afternoon of July 5 a dusty traveler, in the garb of a New England clergyman, arrived in New York City and drove up, in his one-horse sulky, to the ‘Plow and the Harrow,’ a tavern in the Bowery ; and sent his horse for entertainment to the Bowery ham's. Twelve days before he had left his home in the town of Ipswich, in the eastern part of Massachusetts, and had made the journey in his private carriage, there being no public conveyances at that time. His business in New York was to buy of Congress, there in session, a million and a half acres of land in the Northwest Territory for settlement under the auspices of the ‘Ohio Company of Associates.’ His name was Dr. Manasseh Cutler. He remained in New York and the vicinity about three weeks, bought liis million and a half acres for tlie Ohio Com])any, and about four million acres for other parties. In April of the following year the Ohio Com- pany made the first English settlement of the Northwest Terri- tory at Marietta, Ohio, at the mouth of the Muskingum, on the land which Dr. Cutler had bought on this occasion. General Mbishington, writing from Mount Vernon, two months later, said: ‘No colony in America was ever settled under such favorable aus])ices ns that which has just commenced at the Muskingum.’ * * * (|)p. 20-21.) “Harvard College had given him (Dr. Cutler) an honorary degree of A. M., and Yale college the degree of LL. D. Later Washington appointed him Judge of the Supreme Court of the Northwestern Territory, which honor he declined. Pour years he was a member of Congress from the Essex district of Massachusetts, and a noted speech he there made on the subject of the judiciary indicates the class of subjects he was competent to treat. * * * (p. 22.) His manners particu- larly impressed the Southern members, with whom he chiefly associated. They had never before seen, they said, such quali- ties as his in a Northern man. * * * “His association with Southern members was most likely from motives of policy. Ife needed their votes. * * * (I..23.) ‘‘It was, therefore, Dr. Cutler’s policy in furtherance of his Western project, to liold liimself somewhat aloof from his New Kng'land associates, and to cultivate the friendship of the Southern members. Nortliern votes he could get when he needed them. Col. Carrington, Kichard Henry Lee, and Mr. (trayson, all of Virginia, were, as appears by his journal, his warmest friends and confidential advisers. * * * 24.) “With all his yiersonal accomplishments and the spiritual graces of a New England clergyman, he had a large share of worldly wisdom. His journal furnishes evidence that the arts of the lobbyist were not invented in our day. In his business with Congress he regarded success as a duty. He found it difficult to enlist the interest of General St. Clair, the Presi- dent of Congress, in his scheme. He found, also, that General St. Clair wanted to be Governor of the Northwestern Terri- tory; and Dr. Cutler, representing the interests of the Ohio Company, intended that General Parsons of Connecticut should have that office. But he must have General St. Clair’s in- fluence, and found it necessary to pay the price. From the moment be communicated this decision General St. Clair was warmly engaged in his interest, and the General ivas the first Governor of the territory. * * * (p. 24.) “ The first person we find him in company with was Colonel Carrington, who was introducing him to the members on the floor of Congress, just before the session of the day began. He then delivered his petition for the purcliase of land in the Northwest Territory. He dined that day with Mr. Dane and Mr. Milliken, Comptroller of the Treasury, and spent the even- ing with several members of Congress. The next day he made the acquaintance of Mr. Hutchins, Geographer of the United States, and consulted with him about the location of the purchase. * * * (p. 25.) “The chief motive of the Southern members in voting unani- mously for the Ordinance was doubtless to relieve the financial embarrassment of the government, and to bring the public lands into the market at the highest price. It must also be borne in mind that there was then, and for the next five years, more anti-slavery sentiment in the South than ever existed there before or since. Mr. Jefferson, Patrick Henry, George Mason, George Wythe, St. George Tucker, and other promi- nent men of Virginia, were theoretically pronounced abolition- ists. ^ (p. 27.) “The Ordinance of 1787 and the Ohio purchase were parts of one and the same transaction. The purchase ivoidd not have been made without the Ordinance, and the Ordinance could not have been enacted except as an essential condition 13 of the |)ureliase. Botli were helore (;\)ngress and under ('on- sideration at the same time, and (Colonel (yVirrington was the (‘hairman of the committees wliicli reported and carried through botli measures. The dates of their jiassage were separated by an interval of only two weeks. The Ordinani^e has hitherto been treated as an isolated piece of legislation, and as such it has been a marvel and an enigma. When con- sidered together, every fact in the origin and passage of the Ordinance is explained, and is found to be connected with the agency of Dr. Manasseh Cutler. * * * (p. 31.) Three of his sons came to Ohio and took prominent parts in its settlement. Dl*. Cutler himself never removed his resi- dence from Massachusetts. He came to Marietta, in his sulky, on a visit of inspection, and to attend a meeting of the Direct- ors of the Ohio Company, in the summer of 1788, where he was honored as one of the chief promoters of the enterprise. He died in the parish where he had been the settled minister for more than fifty- two years, July 28, 1823, at the age of eight'y- one. ‘‘His eldest son. Judge Ephraim Cutler, already mentioned, was a member of the Territorial Legislature, Judge of the Court of Common Pleas, and a member of the Convention which formed the Constitution of Ohio, in which he almost wholly shaped and drafted the judicial system of the state, and successfully resisted the well laid scheme of setting aside the anti-slavery provision of the Ordinance. He was later a mem- ber of the State Legislature, and planned the common school system of the state. Anothei* son, Jervis Cutler, said to be the first emigrant who landed at Marietta, wrote a ‘ Topograph- ical Description of the States of Ohio, Indiana Territory and Louisiana, comprising the Ohio and Mississip})i Eivers,’ 219 pp,. 12 mo., which was published in 1812, and illustrated with engravings by liis own hand. Judge Cutler’s son, Hon. Wil- liam P. CMtler, still living at Marietta, and one of the most prominent men of Southeastern Ohio, was a member of Con- gress from Ohio from 1860 to 1862.” The “ To])ogTaphical Descri])tion,” etc., by bis son, Jervis Cutler, is more fully entitled as follows : TITLE PAGE. “A Topographical Description of the State of Ohio, Indiana Territory and Louisiana. Comprehending the Ohio and M issis- sippi Pi vers and Their Principal Tributary Streams : the face of the country, soils, waters, natural ])roductions, aiiimal, vegetable and mineral; towns, villages, settlements and ini- provements: and a Concise Account of the Indian Tribes M^est 14 of the Alississippi. To which is added an interesting journal of Mr. Clias. Le Jlaye, wliile a captive with the Sioux Nation, on tlie waters of the Missouri liiver. ]3y a later officer (Jervis Cutler) in the U. S. Army, Boston — Published hy Charles Wil- liams, J. Belcher, Printer, 1812.’’ This work contains the following references to the Chicago portage : ^‘Chap. A Topographical Description of the Indiana territory, pp. 53-66. ‘T)ne of the principal branches of the Illinois takes its rise ' near the head waters of the Chicago River, which enters into Lake Michigan. Between these two rivers there is a 'short portage of only two miles, making an easy communication be- tween the Mississippi and the lakes.” (p. 62.) HISTORY OF THE ORDINANCE OF 1787. By Governor Edward Coles (second Governor of Illinois). 2. In the history of the Ordinance by Governor Coles (pub- lished by P. Hist. Soc., 1856) he reviews the earlier ordinance of 1784, drafted by Thomas Jefferson, which included both the com- pact and the anti-slavery clause, and says : ‘Ht ceded all her right and title to the soil and jurisdiction to the United States, and made many stipulations ; among others, ^That the French and Canadian inhabitants and other settlers of the Kaskaskias, St. Vincents, and the neighboring villages, who have professed themiselves citizens of Virginia, shall have their possessions and titles confirmed to them, and be protected in the enjoyment of their rights and liberties. * * * In consequence of the objectionable stipulations made by Virginia, as to the divisions of the territory into states, the deed of cession was refererd back to that state, with a recommendation from Congress that these stipulations should be altered. On December 30, 1788, Virginia assented to the wish of Congress, and formally ratified and confirmed the fifth article of compact, which related to this subject, and tacitly gave her assent to the whole Ordinance of 1787. * ‘ * * * # * * comparison of the plan of government, as drawn by Mr. Jefferson, and that finally adopted by Congress, ])oth of which I have endeavored briefly to sketch, will show: 1st. That with Mr. Jefferson originated the idea of a compact between the original states and the new states to be formed out of the territories, unalterable but by their joint consent. * * * 4th. To the provision which Mr. Jefferson originated and in- soi-ied in liis plan, making’ it a niattor of* coinpacd that the new states should forever remain part of the United States; he subject to the government of Congress, and the articles of confederation; bear their share of the federal debts; adliere to a republican form of government, and admit no one to citizenship who should hold an hereditary title — to these the Ordinance as adopted by Congress added provisions to pro- tect the public lands from interference and taxation; to pre- serve as highways some of the great rivers ; and to enlarge the enumeration of the personal rights of the citizen. 5th. That the most important clause in Mr. Jefferson’s plan — that which provided that ^ after the year 1800 of the Christian era there should be neither slavery nor involuntary servitude in any of the said states, otherwise than in punishment of crimes, whereof the party shall have been duly convicted to have been personally guilty’ — ^was adopted by Congress with no change, except the omission of the postponement of its operation until 1800, and the introduction of the clause for the restoration of fugitive slaves. #*#*#** ^‘To form a correct idea of what passed in relation to the Ordinance, it is necessary to recall to mind the etforts made by France to encompass and restrict the western frontiers of the English colonies, by establishing a cordon of forts with surrounding settlements connecting its colonies of Louisiana and Canada ; and that France claimed and occupied much of the territory to the eastward of the Mississippi River prior to 1763, when it was ceded to England; after which it formed parts of the English slave-holding colonies. When these facts are con- sidered, it will not excite surprise that the inhabitants of the settlements, thus formed and governed, should have been favorable to the existence of slavery, as it was established by the French laws of Louisiana, and by the laws of the English colonies to which the country east of the Mississippi River be- came attached by the cession of France in 1763.” Governor Coles does not favor the claim made that Nathan Dane of Massachusetts was tlie author of the Ordinance, although ^ Jie may have l)een active and instrumental in working into the Ordi- nance his favorite provisions about title to property.” (p. 15.) Governor Coles then rehearses the history of the calling of the new constitutional convention to make Illinois a slave state and of the defeat of that plan ‘^by a majority of about 1600 votes of the people at the general election in August, 1824; and thus terminated the last struggle, the last effort of the slave party, to defeat the wise and philanthropic purposes of the Ordinance of 1787.” “It would not he doing justice to the Ordinace * * * were .1 to omit to add some of the repeated and unprecedented sanctions it lias received from Congress and the American jieople. * * * “This brings to my recollection what I was told by Mr. Madison, and which 1 do not remember ever to have seen in })rint. The old Congress held its sessions, in 1787, in New York, while at the same time the convention which framed the Constitution of the United States held its sessions in Phila- delphia. Many individuals were members of both ibodies, and thus were enabled to know what was passing in each — both sitting with closed doors and in secret sessions. The dis- tracting question of slavery was agitating and retarding the labors of both, and led to conferences and inter-communica- tions of the members, which resulted in a compromise by which the northern or anti-slavery portion of the country agreed to incorporate, into the Ordinance and Constitution, the provision to restore fugitive slaves; and this mutual and concurrent action was the cause of the similarity of the provision con- tained in both, and had its influence in creating the great unanimity by which the Ordinance passed, and also in making the constitution the more acceptable to the slave holders. “Among the first laws passed by the first Congress and ap- proved by President AYashington, August 7th, 1789, was one to ada])t the Ordinance to the new constitution of the United States. It thus received the sanction of Congress under the present constitution, as it had previously done of the old Con- gress under the Articles of Confederation. “The seventh Congress passed an act, which was approved by President Jefferson, April 30, 1802, authorizing Ohio to form a state constitution and for her admission into the Union, ‘Provided the same 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 River Ohio.’ ” *##*#** ‘ ‘ On the 19th of April, 1816, the 14th Congress passed an act authorizing Indiana to form a state constitution, and for her admission into the Union ; and on the 18th of April, 1818, the 15th Congress passed a similar law for the admission of Illi- nois. Both of these acts were approved by President Madi- son, and both contained similar provisos — that their constitu- tion when formed should be ‘republican, and not repugnant to the ordinance of July 13, 1787.’ “The 16th Congress passed an act, commonly known as the Alis’souri Compromise, authorizing the people of Alissouri to form a constitution and state government ‘and to prohibit slavery in certain territories,’ approved by President Alon- roe, March 6, 1820, in which it is provided ‘That in all that 17 territory ceded by France to the United States, nnd(‘r tlie name of Louisiana, which lies north of 36 degrees 30 minutes, north latitude, not included within the limits of tiie state con- templated by this act, slavery and involuntary servitude, other- wise than in punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby forever pro- hibited; Provided always, that any person escaping into the same from whom labor or service is lawfully claimed in any state or territory of the United States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid.’ This act, by using lan- guage so similar to that contained in the Ordinance, recognizes and sanctions its provisions in relation to slavery, and extends them to all the territory owned by the United States west of the Kiver Mississippi and north of 36 degrees 30 minutes, ex- cept the State of Missouri. “By the joint resolution annexing Texas to the United States, passed by the 28th Congress, and approved by Presi- dent Tyler March 1st, 1845, it is stipulated that such states as may be formed out of that portion of said territory lying south of 36 degrees 30 minutes, north latitude, commonly known as the Missouri Compromise line, shall be admitted into the Union with or without slavery, as the people of each state, asking admission, may desire. And in such state or states as shall be formed out of said territory, north of said Missouri Compromise line, slavery or involuntary servitude (except for crimes) shall be prohibited.’ “The act passed by the 30th Congress, and ajoproved by President Polk, August 14, 1848, to establish a territorial gov- ernment for Oregon, provides ^That the inhabitants of said territory shall be entitled to enjoy all and singular the rights, privileges and advantages granted and secured to the people of the territory of the IJnited States, northwest of the Elver Ohio, by the articles of compact, contained in the ordinance for the government of said territory, on the 13th day of July, 1787, and shall be subject to all conditions and restrictions and prohibitions in said articles of compact imposed upon the peo- ple of said territory.’ It cannot escape notice, that this, the last of the many acts of Congress approbatory and confirma- tory of the Ordinance, should be most complimentary of it. The language used represents the Ordinance as a boon by which the people of Oregon became entitled to enjoy all the rights, privileges and advantages which that measure granted and secured to the people of the Northwestern Territory. “This statement shows that between 1787 and 1854, when the Missouri Compromise was repealed, a period of sixty- seven years, eight different Congresses passed, and six differ- ent individuals acting as Presidents of the United States, viz. : Wasliiiigton, Jefferson, Madison, Monroe, Tyler and Polk, ap- proved eight laws of the United States, enacting and re-enact- ing, sanctioning and confirming and extending, as well in lengtli of time, as extent of space, the ordinance of 1787. * # * ‘‘]n conclusion I will say, the wisdom, expediency, and salu- tary practical effects of the Ordinance, could not he more clearly shown than by contrasting its operations with those of its substitute. Under the ordinance from 1787 to 1854, the territories subject to it were quiet, happy and prosperous. Since its principles were repudiated, in 1854, we have had nothing but contention, riots and threats, if not the awful realities of civil war, which painful state of things has been brought about by the substitution of the legislation of 1854 for that of 1787, long consecrated as it had been by time, and by the approbation of the greatest and best men of our coun- try.’' / APPENDIX! I r. DOCUMENTS TOUCHING THE Lakes to Gulf Waterway (1) REPORT of Major STEPHEN H. LONG, 1819. (2) REPORT of GRAHAM and PHILLIPS, 1819. (3) MAP from Major LONG’S “EXPEDITION.” (4) RELATION of FATHER DABLON, 1674. NOTE Tlie accompanying pamphlet is a reprint of materials mentioned on the foregoing title page. Two of these documents are embraced in Executive Document No. 17, 16th Congress, 1st Session, printed for the United States Government in 1819, viz.: (1) The extracts from the report of Major S. H. Long (of the IT. S. Topographical Engineers), dated March 4, 1817, and (2) The supplemental report of Messrs. Graham and Phillips, on the subject of ‘^communications between the River Illinois and the Michigan Lake,” dated April 4, 1819, both of which were transmitted to Congress by Secretary Calhoun. The document from which the map mentioned as (3) upon the foregoing title page, is taken (together with some further extracts), is the general work descriptive of Major Long^s expedition of 1819-20, compiled by his as- sistant, Mr. Edwin James, and published in London in 1823. The extracts reprinted from this book are (a) the title page 5 {b), the dedication to Secretary Calhoun; and (c), the map. This map sets forth the route of Major Long and his party on both expeditions, and embraces the ma- terial which he referred to in the report of 1817, as fol- lows : ‘^ The courses and relative positions of the several rivers and creeks may be seen by recurring to the plans.” The book known as “United States Government pub- lication, 16th Congress, 1st Session, House Documents 12 to 33, Serial Number 32, ’ ^ was kindly loaned by tbe library of tlie University of Cbicago, from whicb Docu- ment No. 17 was photographed. The copy of the ‘Uiceoirat^^ from which the map, title and dedicatory page were photog::iaplied was forwarded from the Library of the Engineer Dspartment, U. S. Army, 'Washington, D. C., to Lieut Col. Eixby of the United States Engineers, Chicago; and the photographs were taken from it while in his possession. Our thanks are due to Lieut. Col. Bixbj and to the ofhoers of these libraries for their courtesies. Documents (1) and (2) and the extracts from docii- mcnt (3) have been reprinted photographically. They are facsimiles of the originals. The dO'Cnments from which extracts from the relation of Father DoMcn arc re- printed are found in Chicago Public Lil>rar 3 a These pamphlets are reprinted for use in tho case of the People of the State of Illinois ofi Rdaiim of Charles S. Deneen, Governor, and WtUiam il. Stead, At- torney General, v. The Economrj Light and Poiver Com- pany (Grundy County Circuit Court, Chancery, No. 1,526) "Wm. H. Stead, 'Walter Eseyes, Mefxutt Stabe, Counsel for the State, Oiiicago, February 27, 1908, [ 17 ] FROM THE SECRETARY OF WAR, TRANSMITTING TOPOGRAPHICAL REPORTS, MADE WITH A VIEW TO ASCERTAIN THE PRACTICABILITY OF UNITING THE WATERS OP ILLINOIS RIVER, WITH THOSE OF LAKE MICHIGAN. DECEMBER 28 , 1819 . Read, and ordered to lie upon the tabic. WASHINGTON : JPIllNTRD BT GILES Cif BEATON. 1819 . DEPARTMENT OF WAR, 28th Decembee, 1819. Sir: Ri comj)liance witli a resolution of the House of Representa- tives, of the 1 5th iiist. directiu!^ the Secretary of War “ to lay be- fore that Hofisc the several Topographical reports tliat liave been made to the War Department, in pursuance of instructions to that elfBCt, respectiiii^ the practicability of uniting, by a canal, the waters of the Illinois idvcr, and those of Lake Michigan, and such other in- formation as he may be in possession of, on that subject/’ I have thohoiior to transmit an extract of Major Long’s report, and a copy of a report made by R. Graham and Josepli rht?ips, Esejuires, which comprehend ail the information on the subject in this Dej)artmcnt. I have the honor to be, Very respectfully, Sir, Your most obedient servant, I. C. CALHOUN. Hon. Hejstrv Clav, Speaks oj fhe Jiovse of Uepresmi(i.lrots U, 5 t in EXTRACT from a Report of Major Stei)hen Hn Long to George Gra- hann. Esq. Mting Sea'ctary of fVai'f dated Washington, March 4th 1817. The Illinois is formed by the union of three considerable Rivers, the Des Planes, the l)e Page, and the Kankalree^ the last of which is nearly double the size of either of tlie 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 suf- ficient 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 Iowti* stages of w in- ter. Farther up, the water is not, generally, so deep as it is helow^ the Vermillion. The Valley of the Illinois varies in its width, fj*om three to ten miles; is, generally, flat and marshy, and, for the most part, sub ject to inundation, when the river has no more than a medial height. In some parts of it, however, prairies and bottoms, of coirsiderablc ex- tent, are to be met with, elevated much above high w ater 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 hcaVi of the river. Imbedded in the bluffs, are strata of limestone, slate and coal, which, occasionally, make their appearance along tlie surface of the declivities. The river Des Planes is a small stream rising in the low lands, bordering upon the w est side of Lake Michigan, and has its general course in a southwesterly direction. The valley of tliis river has an average w idth of about one mile, and is terminated on both sides by regular banks, nearly parallel to each other, extending along the riv- er about 30 miles from tbc bead cf the Illinois. In ascending this river, also, the banks or bluffs gradually decrease in Iieiglit, being, as before mentioned, about IQO feet high at the moiitb, and only 20 or 25 at the distance of 30 miles higher up the river, where, instead of maintaining their parallel direction, they form nearly right angles with the course cf the river, that on the right taking an easterly, and that on the left a north- w^esteriy course; but, being gradually inilect- ed from these courses, they form an extensiv^e curve, encii'cling a large tract of flat prairie, in no part elevated mdre than 2 or 14 feet above the common level of the v/ater in this vicinity. The rivey, tlirougbout the above mentioned distance, has 4 or 5 short rapi{S.s or rip- ples that make tlicir appearance only in IcyW v/ater. In evez-y other paH, it has the appearance of being a chain of stagnant poolfi and small lakes, affording.asuffcicnt dejythof wo-ter ibr boats of mo - derate draught. In the flat prairie, above mentioned, is a small lake, about 5 miles in Icngtl), and from 6 to SO or 40 yards in 'width, comnjunicating both with the river Desplancs, and Chicago river, fey means of a kind of canal, which lias been made partly by the current of the water, and partly by the French and Indians, ibr the pui^se of getting tiieir boats across in that direction, in time of high water. The distance from the river Desplanes to Chicago river, by this w'ater course, is about 9 miles; through the greater part- of w hich, there is Jiiorc o? less water, so that the portage is seklom more than S miles m the driest season; but in a wet season, boats pass and repasr^ with frxility betv/ecii the two rivers. The rivers De Page and Kankakee hear nearly the same charac- ter, in regard to their bluffs, valleys, &e. that has been given to the Desplanes. The former of these rivers takes its rise a few miles v/eat of that Of the Desplanes, and has a course nearly pai’allel with it. The latter rises in a flat marshy country in the ndghboj'hood of the St« Joseph of the Lake, and runs a meandering course passing the southem extremity of Lake Michigan, at the distance of 20 or 30 miles from il. Near the head of this river is a small creek falling into St* Joseph, through which boats have passed in time of high water, from the SC Joseph to the Kankakee. The con ntry through which the Desplanes, the De Page, and the Kankakee rivei’s take their course, appears to be underlaia with a vastbedoflirnestone, which occasionally makes its appearance in the valleys of those riv- ers, covered with a soil too thin to support vegetation. Chicago river fe merely an arm of the lake, dividing itself into two branches, at the distance of nne mile inland from its commaiii- cation v/ith the lake, llie north branch extends along the w®5tern side of the lake about thirty miles, and receives some few tributaries. The south branch has an extent of only 3 or 6 miles, and receives no supplies, except from the small lake of the prairie above, describedo The river and each of its branches- are of variable widths, from 15 to 50 yards, and, for 2: or 3 miles inland, have a suSicient depth of waterto admit vessels of ^most any burden. The entrance into lako Michigan, hov/ever, which is 30 yards wide, is obstructed by a casd bar, about 70 yards broad, upon the highest part of 'which, the water k usually no more than two feet deep. The difSculty of removing ■this obstruction -would not be great. Piers might be sunk on both sides of the entrance, and the sand removed from between theiBi, By this means, the river would be rendered a sate and commodious har- bor for shipping, a convenience which is seldom to be met with oa the shores of lake Michigan. The St, Joseph of the lake is navigable for batteaux to a very considerable distance, in all stages c?f the water. The St. Joseph and St. Mary’s of the Maumee, are rivers of con- siderable size and extent, 'The latter, in -wet seasons, is navigable for perogues to fort St« Mary’s, one hundred and iifty inilas from its confluence -with the former, bythe co^e of ths river. Its branches Ci7] 7 interlock \rith those of the Wabash and Big Miami. The St. Joseph is navigable about 50 miles, its tributaries interlocking with those of the St. Joseph of the lake, the Rankakee, and the Wabash. The Maumee of the lake is 100 miles in length, and is navigable for bat- tcaiix and perogues throughout its whole extent, in all stages of the water: about tliirty miles above its mouth are the Wolf Rapids. The face of the water, however, is not so gi*eat as to occasion any very serious obsti'uctioii to the navigation of the river. The courses and relative positions of the several rivers and creeks may be seen by recurring to the plans. Proposed Canals and Poods* A Canal uniting the waters of the Illinois, with those of Lake Mi- chigan, may be considered the first in importance of any in this quarter of tlic country, and, at the same time, tiic construction of it would be attended with very little expense, compaixd with the magni- tude of the object. The water course, which is already opened be- tween the river Desplanes and Chicago nver, needs but little more excavation to render it sufficiently capacious for all the purposes of a canaL It may be supplied with water at all times of the year, by constructing a dam of moderate height across the Des Planes, which v/ould give the water of "that river a sufficient elevation to supply a canal extending from one river to the other. It would be necessary also, to construct locks at the extremities of the canal, that commu- nicating with Chicago river being calculated to elevate about six feet, and that communicating with the Des Planes, aliout four feet. To render the Des Planes and Illinois navigable for small boats and flats requiring but a small draught of water, nothing more is necessary tl»an 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 w^ater com- munication between the Dlinois and lake Michigan may be kept open at all times sufficient to answer all the purposes for which a canal will be wanted, formally years to come. A canal uniting the St. Joseph of the lake with the Illinois, by w^ay of the Kankakee, may be con- stricted also ina similar manner, and w ith great facility, except that the distance by this route is considerably greater. I’here are vai ious other places where water communications may he opened in this quarter, jby means of canals, to great advantage, of wffiich the following are but a small proportion, viz. Between the St. Joseph of the lake, and the St. Joseph of the Maumee; between the latter and the Wabash; and between the Illinois and the Wabash, by way of the Saugano river. ^ canal also uniting the Mississippi and Oliio, a little above their junction, would be of great public utility, particularly should a general depot for military stores be established s [ 17 J near the moutli ot‘ the latter. The objects of this canal would fae to shoi-tcn the distance by water from the contemplated site of the de- pot, nortliwardly, to avoid a part of the Mississippi, difficult to navigate, and to render the depot accessible by an easy and safe communication, both from the Ohio and Mississippi.’’ Kaskasxia, April ‘ith, 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 sonic views which occurred to us on the subject of communications between the river Illinois and the Michigan Lake. 15y reference to the map herewith forwarded, it v/ill be seen, that the little river Flein, coming from the north-west, approaches within ten miles and a quarter of Lake Michigan, and then, bending to the south-west, unites with the TheakUd, at the distance of about fifty miles, and forms the rivei* llUnois. The country between the Lake and the Plein, at this point of ap- proach, is a prairie (natural meadow) without trees, covered witii ^Tass, and, to the eye, a perfect level. From the bank of the Pldn^ Gtanding on the ground, the trees are distinctly seen, with the naked eye, at Fort Dearborn, on the shore of the lake; from Fort Dear- borh they are, in li]^e manner, seen on the bank of the Pldn. Stand- ing GO any intermediate point, between the lake and the river, and the judgment is at a Ipss to say to which side the ground declines, and whether the level of the Flan or the lake is the highest. It was, however, determined, from certain data, that tlie level of the river was feet, or thereabouts^ above the level of thelake. From this view it would seem that the cutting of a canal, in this place, between the Pldn and the lake, would he a work of neither skill, difficulty, or expense. Small, however, as the labor would be, under this view, it is still diniinished upon a close examination, and by finding that an arm of the lake called 67iicago puts out in the direction of tlie Fldn^ and that an arm of the Pleim, also called Chicago, puts out in the dii^ction of the lake. They approach within two miles of each other; so that, m convmon water, there is only dry ground to that ex- tent between them. The character of these two arms is essentially dilTerciit; that of the lake beir5g but about sixty feet wide, and tsn to forty feet deep; that of the river being, in high water, from four to six feet deep, and, in places, a mile v/ide, and, in low water, eithhr 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, wffien thus filled with water, the boats, of six or eight tons, engaged in the Mackinaw and Mis- sissippi trade, run through, backwards and forwards, so as to C 17 ] y make no portage between Mackinaw and tiie Mississippi. This gut- ter, judging from the appearance of others noV/ forming, was, at first, a path worn out by the feet of tiicse who carried things across the portage, and afterwards deepened by the attrition of the waters, until formed into a little canal. The wind, alone, gives the v/ater a current in this little canal, and its direction depends upon the course of the wind. Objects have been seen to float out of it, from the same point, to the river and to the lake. it is incontestibly true, that an east w ind will drive the water of the lake through this gutter into thei'^ein, 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 Flein have ^en 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, iii this place, would require, as we have already said, but little of skill, time, or expense. On opening the canal, however, two difficulties would he experienced. ist. The Plein would be found to be above the level of the canal : its water, of course, would he div erted from its natural channel, and pass by the canal into the lake. 2d. Supposing that evil remedied by a lock to lift vessels into the Pfein, yet the plein, during half the year, does not contain water enough to float a boat, and so could not become useful as a national highway. To remedy this defect of water in the Flem, two projects suggest themselves. 1st. To sink the bed of the Flcm below the level of the canal, and thus increase the depth of the Flem as well by feeding it out of the lake, as by Collecting its water into a narrower channel. 2d. To make the canal unite with the Flein lower dowm in its course. A few miles lower would be sufficient to give the water of the Lake ado- scent into tlie river, as thePiem has a sensible descent in this place, inso- much that the people of Chicago call it ‘‘ The Rapids,” having no other v/ord to distinguish moving v/ater from that which stands still. Of the Flein below its poiiit of approach to tlie lake, we v/ould i*c- mai k, tliat 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 wide, and so shallow that the tall grass ap- pears almost every where above its surface. Having said thus much of the facility of communication by the CAviiagOjWc would now remark, that several other routes are perfectly practicable, Ist. From a point in the lake south of Chicago to enter the Flein beiew mount JuUet, at or near what is called lake du Fage^ but which is only a dilation of the waters of the Flein, This routs would lay o/er level Prairie, through a multitude' of small lakes, or ponds, which have neither name or place in any map. 2. By a canal leaving the lake near its south end, and uniting with the Tlijeakikijmt above its confluence o 10 C ] w illi the JPleiiu Both of these canals would be fed from the lake, would require few or no locks, would go over ground of the same soi*t, 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 betv/een the Thea^ kiki and the St. Joseph of the lake. Information says, thatit has been practised by French traders. You will perceive, sir, that wc 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 making 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 Flein, 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 season of the year an uninterrupted water communication for boats of six or eight tons burthen, betw een the Mississippi and the Michigan lake; at an- other season, a portage of two miles; at another, a portage of seven inilcs, from the bend of the Flein to the arm of the lake; at another, a portage of fifty miles, from the mouth of the Flein to the lake; over w hicli there is a well beaten w agon road, and boats and their loads are hauled by oxen and vehicles kept for that purpose by the French settlers at the Chicago. Respectfully, Your obedient servants, [Signed] R. GRAHAM, JOSEPH PHILIPS. The Hon. J. C. Calhoun, Secretary of War, Washington^ w ACCOUNT OF AN EXPEDITION FROM PITTSBURGH TO THE ROCKY MOUNTAINS, PERFORMED In the Years 1819, 1820. BY ORDER OF THE Hon. X C. CALHOUN, Secretary of War, UNDER THE COMMAND OF Maj. S. H. long, of the U. S. Top. 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 EXPEDITION. IN THREE VOLUMES. VOL. L LONDON: PRINTED FOR LONGMAN, HURST, REES, ORME, AND BROWN, PATERNOSTER-ROW. 1823 . TO THE HONOURABLE JOHN C- CALHOUN, SECRETARY OF WAR; WHOSE LIBERAL VIEWS, ENLIGHTENED POLICY, AND JUDICIOUS MEASURES, WHILE THEY HAVE BEEN PROSECUTED WITH THE UTMOSl CIRCUMSPECTION -AND ECONOMY, HAVE CONTRIBUTED IN AN EMINENT DEGREE TO THE ADVANCEMENT OP THE NATIONAL CHARACTER OF THE UNITED STATES, BOTH IN SCIENCE AND POLITICS; THE FOLLOWING PAGES ARE MOST RESPECTFULLY DEDICATED BY THE AUTHORS, AS A FEEBLE TESTIMONIAL OF THEIR HIGH CONSIDERATION OF HIS TALENTS AND PATRIOTISM, AND A GRATEFUL ACKNOWLEDGMENT OF HIS INDULGENCE AND PATRONAGE. <’<)i;ntkv -J.^* ilir.wJ.l.-p.-.N l.ai JEXP1.A^’■AT,^ DIN'S PROFU,E ou VEU riC.U, SECTION OF THE COl’NTKY On Ok PtoulM of Latitiui^ 38 dnjrees Sort/i . V\ ** ii- lA L rA B A BC ; j| (4) RELATION OF FATHER DABLON. The following passage is taken from a manuscript of Father Claude Dablon, which, as published in the ‘‘Jesuit Relations,^’ is dated at Quebec, August 1, 1674, the full title of which is “Relation de la decouverte de plusieurs pays situez au midi de la Nouvelle-France, faite en 1673 This mamisoript is found at pages, 262-270 “Decouvertes et Etablissements des Francais dans L’ouest et dans le Slid LAmerique Septeatrionale (1614-1754) Memoires et Documents Originaux Recueil- lis et Publics par Pierre Margry,^’ Paris, D. Jouaust, 1875, the passage in question being at pages 267-8 : “La quatriesme remarque regarde un advantage bien grand et considerable, et qu’on aura peut-estre de la peine h croire: c’est que nous pourrions aisement ailer jusques ^ la Floride en barque et par une fort belle navigation. 11 n’y auroit qu^une saignee k faire, coupant demy lieue dc prairie seulement pour entrer du fond du lac des Illinois dans la riviere Saint-Louis. Voicy la route qu'on tiendroit. La barque se devroit faire dans le lac Efrie, qui est proche de rOntario. Elle iroit aisement du lac Eri6 dans le lac Huron, d^ou elle entreroit dans le lac Illinois, au fond duquel se feroit la tranch^e on le canal dont j^ay piarle pour avoir passage dans la riviere de Saint-Louis, qu se descharge dans Mississipi, y est ant la barque navigable facilement jusqu'au golphe de Mexique.’^ The text here used is the French as given in Pierre Margry’s “Decouvertes,’’ although the same document and passage is also found reprintc^d in volume 58 of the Jesuit Relations, pp. 91-109. The full title of this valu- able collection is “The Jesuit Relations and Allied Docu- ments ; Travels and Explorations of the Jesuit Mission- aries in New Prance (1610-1791). The original French, Latin, and Italian texts, witli English Translations and Notes; illustrated by portraits, maps, and facsimiles. Edited by Reuben Gold Thwaites, Secretary of the State Historical Society of Wisconsin.” (The descriptive sub- titles and numbers of the separate volumes, occurring at this point, are here omitted.) ^‘Cleveland : The Burrows Brothers Company, Publishers, MDCCOXCIX,” (In 73 volumes. The year above given is the date upon the title page of Vol. 58. The other 72 volumes bear dates rang- ing from 1896 to 1901, inclusive.) On page 104 of the later boot we find a slight variation, where the earlier print of Margry uses the word navigable” the Jesuit Relations adds after, the word ‘^na,vigable” the follow- ing in parenthesis, (sc. navigueroit) ”. Below is a translation of the above passage which is Jiero reprinted as it appears in VoL 58, page 105, of the Jesuit Relations : ^The fourth remark concerns a very great and important advantage, which perhaps will hardly be 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 pass from the foot of the Lake of the Illinois to the river Saint Louis. Here is the route that v/ould 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, v/hence 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 Mississipi. The bark, when . there, would easily sail to the Gulf of Mexico.” i {