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 This law was never repealed, but was modified by the act of February 10, 1831, which declared White River navigable as high as Yorktown in Delaware County.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.