Address, “The Conservation of Navigable Streams”
THE CONSERVATION OF NAVIGABLE STREAMS.
Mr. Jacob P. Dunn, Indianapolis.
The objects of the conservation of natural resources divide naturally into two classes. The first relates to the development of lands in private ownership, such as the encouragement of forestation and renewing the fertility of the soil, in which the interest of the State is the indirect one of increasing the supply, or cheapening the cost of products that are of material benefit to the entire community. The second relates to the preservation and utilization of public property, such as forest lands and mineral resources, in which the State has the direct interest of securing special revenues, whereby the burdens of taxation may be reduced, and of promoting the public welfare by furnishing facilities for commerce and industry. To this second class belongs the conservation of navigable streams, and this subject has already been brought prominently before the public by the discussion of proposals for improvement of the navigation of the Mississippi River and its tributaries. But this Mississippi project has a vastly greater significance than the general public has fully considered; for it means that hundreds of streams that are now navigated only in a small way, or not navigated at all, will later be made navigable in a practical and useful way.
Moreover, this subject is of special importance to the great region formerly included in the territory northwest of the Ohio River, including the present States of Ohio, Indiana, Illinois, Michigan and Wisconsin, because the Ordinance of 1787, by which that territory was created, expressly provided 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 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, duty, or impost therefor.”
These words show that the word “navigable” was not then used in its present common acceptation. When we speak of a navigable stream we commonly mean one that can be navigated by steamboats, but there were no steamboats in 1787, and all of the commercial navigation of this region at that time was by means of canoes and the small vessels known as bateaux and pirogues. That this navigation was what was intended is conclusively shown by the reservation of “the carrying places,” i. e., the stretches of watershed between the headwaters of the streams of the two drainage systems over which both the boats and their loads were transported bodily. This meaning has usually been adhered to by the courts (2 Mich. 219; 19 Oregon, 375; 33 W. Virginia 13; 20 Barbour, N. Y., 9; 14 Ky., 521; 87 Wis. 134), and the general rule is that any stream that will carry commerce, even by floating logs, is a navigable stream. (51 Illinois, 266; 42 Wis. 203.)
The United States Government followed out this theory consistently. By the act of Congress of 1796, for the survey and sale of the public lands of this region, it was expressly declared that “all navigable streams within the territory to be disposed of by virtue of this act shall be deemed to be and remain public highways.” As such their beds were always excluded from the lands surveyed and sold. The government surveyors did not include any of the larger streams in their surveys, but “meandered” them, and when the land was sold, it was sold in fractional sections, running to the meander lines. The beds of the streams and the land bordering them was thus reserved as public property, and when the several States were formed and admitted to the Union, the title was transferred to them from the general government. It is of course to be remembered that Congress has ultimate power over navigable streams, but it is well established law that a State has plenary power over navigable streams that are entirely within its borders, at least until Congress acts.
The acceptance of this provision as to navigable streams was made a prerequisite to the admission of Indiana to the Union by the enabling act of 1816. It was formerly accepted by ordinance of the constitutional convention of Indiana in 1816. And yet Indiana stands today in the unique position of being the only State in the Northwest in which the public rights thus established have been nullified, or at least clouded, by an absurd decision of the Supreme Court of the State, made in 1876. (54 Ind. 471.) Inasmuch as this case deals with White River in Marion County, and as this stream at this point furnishes a typical illustration of the whole subject, I will call your attention to it in detail.
Prior to this decision, every department of the government of Indiana fully recognized the binding force of this compact with the United States, and accepted as conclusive the United States surveys in the determination of what streams were navigable under that compact. The bed of White River in Marion County was not included in these surveys, and it was never sold by the United States or by the State. The Legislature of Indiana always recognized this rule, and always applied it to “White River in Marion County.” The act of January 17, 1820, declared White River navigable as high as “the Delaware towns,” meaning presumably to Muncie, and made it and the other streams named “public highways,” making it a penal offense to obstruct “any stream declared navigable by this act,” except only that mill-dams might be erected under certain conditions, by persons who had “purchased from the United States the bed of any stream by this act declared navigable.” This law was never repealed, but was modified by the act of February 10, 1831, which declared White River navigable as high as Yorktown in Delaware County. This last law is notable as recognizing that a stream need not be navigable at all seasons, for it prohibited any obstruction that would “injure or impede the navigation of any stream, reserved by the ordinance of Congress of 1787 as a public highway, at a stage of water when it would otherwise be navigable.”
Indianapolis was located on this stream because it was navigable for the water-craft then in use. The Legislature of 1825, on petition from the people of Indianapolis, made Alexander Ralston a commissioner to survey the stream, and report on the probable expense of keeping it free from obstruction. He made the survey that summer, and reported the distance from Sample’s Mills, in Randolph County, to Indianapolis, 130 miles; from here to the forks, 285 miles; from there to the Wabash, 40 miles, and that for this distance of 455 miles the stream could be made navigable for three months in the year by an expenditure of $1,500. He found two falls or rapids, one of eighteen inches, eight miles above Martinsville, and one of nine feet in about one hundred yards, ten miles above the forks.
On this report, the Legislature on January 21, 1826, passed a law to improve the navigation of White River as high as Sample’s Mills, in Randolph County, directing that all persons liable for road work living within two miles of the stream, in the counties bordering on the stream, be called out to improve the stream as a highway. This law was made general by the act of May 31, 1852, which empowered county boards to declare streams navigable, and to work them as highways; and this act is still continued in force by the act of April 15, 1905. (Burns’ Stats., Sec. 7672.)
The act of January 28, 1828, appropriated $1,000 for improving the navigation of White River as high as Anderson, in Madison County. The act of January 23, 1829, “relative to navigable streams declared highways by the ordinance of Congress of 1787,” prohibited any obstruction of any stream or river “which is navigable, and the bed or channel of which has not been surveyed or sold as land by the United States.” So the law of 1852 made it a penal offense to obstruct “any navigable stream, the bed or channel whereof may not have been surveyed or sold by the United States.” (Rev. Stats. 1852, Vol. 2, p. 432.) This is continued in force, in the same language, by the act of April 15, 1905. (Burns’ Stat., Sec. 2650.)
The executive department never questioned the correctness of this rule, and some of the Governors took a great deal of interest in the matter. After the general introduction of steamboat navigation, Governor Noble was ambitious to add that to the ordinary commerce by flatboats and keel boats, and in 1828 he offered a reward of $200 to the first captain who would bring a steamboat to this point, and also to sell his cargo free of charge. In pursuance of this a small steamboat from Cincinnati was actually brought up the river to Indianapolis in 1831. The early courts also recognized the rule that the survey and sale of the bed of a stream was the conclusive test of its navigability, under the law. (3 Blackf. 193.) The State asserted actual ownership of the bed of the stream in this county, and for years maintained an agent at the Washington street crossing to sell sand and gravel from it on the State’s account.
In the face of all this, when the question came before the Supreme Court, in 1876, the court, by Judge Perkins, without any real examination of the law or the facts, said: “The court knows judicially, as a matter of fact, that White River, in Marion County, is neither a navigated nor a navigable stream”; and as to the bed not being surveyed or sold he said: “The idea that the power was given to a surveyor, or his deputy, upon casual observation, to determine the question of the navigability of rivers, and thereby conclude vast public and private rights, is an absurdity.” On this assumption he proceeded to wipe the “vast public rights” out of existence. A little examination would have shown him that the surveys were not irresponsible acts of the surveyors, but official acts in pursuance of law, under the direction of superior officers, and confirmed and ratified not only by those superiors, but by the United States and the State of Indiana. (54 Ind. 471.)
The court abandoned the reasoning of this case two years later, when it held that the Wabash River, in Warren County, was “a navigable stream, the bed of which has neither been surveyed nor sold.” (64 Ind. 162.) But it cited the decision of 1876 as authoritative in another case in 1900 (155 Ind. 477), and this again without any examination of the law or the facts. It is worthy of note that the United States Government has uniformly declined to recognize this decision as law, and as late as 1899 refused to be bound by it. (Indianapolis News, November 7, 1899.)
Fortunately, opportunity has arisen for a reconsideration of this question in a case arising in the Kankakee swamp lands (State vs. Tuesbury Land Co., Starke Circuit Court). In the northern end of Indiana, particularly near the Kankakee River, there was a large amount of swamp land which was not included in the United States surveys nor sold by the United States. This was transferred to the State many years ago, and part of it was reclaimed and sold by the State. In 1891 reclamation was entered on a large scale by removing the ledge of rock at Momence, Illinois, which dammed the Kankakee, and caused most of those swamps. As soon as these lands were drained, adjacent owners set up claims to the thread of the stream as riparian owners, and a judgment was obtained in the Starke Circuit Court upholding such claims. If valid this means that the great expense to which the State has gone in reclaiming the lands is money thrown away.
As soon as he learned of it, Governor Marshall, who is very practical in his statesmanship, directed the Attorney-General to take steps to secure a reversal of the judgment or appeal it, and a new trial has been secured in the case, which is to be heard shortly. The Kankakee is one of the most noted of the streams referred to in the Ordinance of 1787 as “navigable waters,” which are reserved forever as “public highways,” and there should be no riparian rights in it.
There is certainly good reason to expect a reversal of the Indiana decision, if not by our Supreme Court, by the Supreme Court of the United States, for two special reasons: (1) The question of the navigability of a stream is not primarily a judicial question, but one of public policy to be determined by the legislative department, and both Congress and our State Legislature have consistent records for the navigability of these streams. (2) In this case the navigability is a matter of solemn compact between the State and the United States; and as the constitutions of both prohibit any law impairing the obligation of a contract, it is hardly to be assumed that the courts would undertake to annul a contract of this character.
Unquestionably White River, like most of the other streams of Indiana, is not as practically navigable today as it was eighty years ago, and for two very simple reasons. First, at that time the only timber that got into the river was trees on the bank that were thrown in by the banks caving, and these were usually held to the banks by their roots. But after settlement began every freshet carried quantities of logs, rails and boards down the river, to form drifts; and these in turn caused the formation of sand and gravel bars. Second, when the land was cleared and cultivated, the ground washed much more readily than it did before, and much greater quantities of sand and gravel were carried into the river to form bars. These bars constitute the chief obstruction to practical navigation now.
But by a change in recent conditions of life, these bars furnish the means for making the river practically navigable. Within the last two decades there has grown up a special demand for this sand and gravel; and especially has this demand been increased by the call for good roads; for washed gravel is one of the best materials available for road-making, and by these streams, nature has distributed it very widely over the State. This demand has developed the industry of removing sand and gravel from the river beds by means of suction pumps, and since 1897, when it began, this industry has reached proportions that are not generally known to the public. At Indianapolis there have been six steam pumps working for several years. They are mounted on scow boats, fifty to sixty-five feet in length, and twenty to twenty-five feet in width, and by centrifugal suction power, draw up a mixture of sand, gravel and water through eight-inch pipes. The pipe entrance is screened to prevent the entrance of stones over four or five inches in diameter, in order to avoid clogging the pipe.
These six pumps take out 180,000 cubic yards of sand and gravel in a year, at a cost of 20 to 25 cents a cubic yard. The material is separated by passing over screens into two grades of sand and two of gravel, and is sold at a good profit for street improvement, roofing, asphalt mixture, concrete, mortar and locomotive sand. Formerly Lake Michigan sand was shipped here in considerable quantities, but now the demand is fully met by this local industry. The pumps take out the material for a depth of about fifteen feet, and in the course of their work they have made about three miles of Indianapolis river front practically navigable for any kind of river craft. The boats can easily be run to any point on the river and used for removing bars at any place. At present the proprietors of the boats are paying the adjacent landowners for the privilege of taking out material that rightfully belongs to the State, and of which the public ought to have the benefit.
The practical situation is this: Indiana has an almost inexhaustible supply of the best and cheapest road material known, which rightfully belongs to the State. By using this material it will make actually navigable hundreds of miles of waterways that are now of no use in commerce. It is quite common for the unthinking to joke about the absurdity of making small streams navigable, but there is nothing absurd about it. Over half a century ago Indiana constructed 453 miles of canal, at an average cost of $15,000 a mile, which has since been practically abandoned, not as is generally supposed, because of the competition of rail roads, but because it was high line canal, and was built up, in part, instead of being dug out, and without proper precaution for making it water-tight. The State was not alone in its experience. There are in the United States over 1,950 miles of abandoned high-line canal, that cost over $44,000,000. But there are also plenty of low-line canals in practical and profitable operation.
The mistake that was made in Indiana was in not utilizing the natural water-courses. At an expense of less than $15,000 per mile, White River can easily be made navigable for steamboats from Indianapolis to its mouth, where there is actual steamboat navigation now. The fall in the river is only 269 feet in the 285 miles, or less than a foot to the mile. The tested flow of White River at this point is over 1,000 cubic feet per second. With not to exceed half a dozen dams, and the principal bars pumped out and put into roads, the thing is accomplished. Not only is there nothing impracticable about it, but it is as certain to be done, in the not distant future, as it is that the sun will rise tomorrow morning. The advantages of water communication with the great coal and building stone region of the State, as well as direct connection with the Wabash, Ohio and Mississippi Rivers, is too obvious for discussion. With our Supreme Court decisions put on a rational and just basis, there is nothing to prevent a speedy accomplishment of the work.