Meanwhile the omens are favorable for the causes of peace and Conservation. The object lessons are there for all the world to see. I have mentioned the Panama Canal in the Western Hemisphere as an instance of constructive Conservation. The Eastern Hemisphere also has its encouragement. Right in the reputed cradle of the human race some of the world’s most brilliant engineers are executing works that will unchain rivers and cleave through mountains to the end that on Mesopotamia’s broad lands the Garden of Eden shall be re-established.
I rejoice to know that this movement towards Conservation nowhere has attained greater volume than in our own land; for with our advantages it seems to me that we are specially equipped for the ennobling task of removing obstacles from the path along which our race must tread in the accomplishment of its high destiny.
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.