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in itself of no account. But the building of a Dreadnought to fire away the product of labor in thin air is to bring all that has gone to prepare for that achievement to nought. The chain of production is broken; henceforth mankind is so much the worse off for that loss of money, labor and its products. But in the true conservation of resources, the labor and its products employed in peaceful and constructive enterprises achieve benefits that flow on continuously in an ever-widening stream, till the entire humanity is made to feel the blending of each man's labor in the commonweal. Brain, sinew, time, energy and material resources are being thrown into the melting pot of war, yet but for that very war the evolution of the human race would be eons further on. Every time a war scare sends the exchanges of the world's capitals into panic, deadly injury is done to the commerce of the entire globe. Ruin has not to wait for the actual outbreak of hostilities. The wolf of war has but to bare his fangs in menace to cause a premonitory slump to spread devastation through the ranks of the investors. Yet instead of meeting, as the delegates of this Congress are meeting, to debate the best methods of insuring national and international thrift, in statesmanlike preparation for the future needs of the human race, many powerful minds are spending their time devising nightmares with which to scare humanity into ruinous expenditure. I venture to predict that in the future it will be found that the chief instrument of Conservation has been established already in the arbitration court at The Hague, and generations yet to come will say of its founders, “They builded better than they knew.” 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.

THE CONSERVATION OF NAVIGABLE STREAMS.
Mr. JAcoe 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.)

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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

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