"Judicial determination of the issue involved in the suit is, therefore, of the utmost importance to a public interest committed to my charge. If there is any procedure by which you can quicken action by the court and induce an early and effective decision, I have the honor to urge that such procedure be taken." This case is now pending before the United States Supreme Court, and on February 23, 1924, the Hon. James M. Beck, Solicitor General of the United States, filed a motion in the Supreme Court of the United States to advance the hearing of this case to an early date, and in which motion the Solicitor General states: "The Sanitary District of Chicago should, we believe, be required immediately to take steps which it should have taken years ago, to construct purifying works and other means of disposing of drainage, so that it will not find it necessary to divert from Lake Michigan a constantly increasing supply of water." I cite these papers of the officials of the Federal Government in this connection to show the vast quantity of water diverted from the Great Lakes by the sanitary district; that it has been diverting this water contrary to law for many years. That it has been the duty of the sanitary district to protect itself in the disposition of its sewage by other means, and should not, in all justice, divert this water into the Illinois River to the loss and damage of the owners of the land along the river. The act of legislature under which the Chicago drainage district was organized and incorporated as a municipal corporation, was passed in 1889. Section 19 of that act, provides: "Every sanitary district 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." The question naturally occurs: "Why, then, have not these drainage districts and landowners recovered damages, provided for in this section?" Many suits have been brought, a few have recovered damages, but at greater expense usually, than the amount of damages recovered. Many suits are pending and have been pending for over 10 years, without trial; theoretically these people have their remedy; practically, they have no remedy. With a trial of the few suits that have been tried, it has been found that the vast political, financial, commercial, and other resources of the sanitary district, and recourse to various means, have made the prosecution of such suits prohibitive. Many members of the State legislature have been under salary of the sanitary district, without rendering any visible service. Many lawyers in the various communities are under its retainer; scores of expert engineers appear at the trials; and every means, fair and seemingly, sometimes foul, in court and out of court, have been resorted to, to defeat the recovery of any claim for damages. There has been no disposition upon the part of the sanitary district, to fairly and equitably meet these claims for damages to landowners along the Illinois River. Every case has been appealed to the appellate or Supreme Court. All this involved great expense, and the landowners were simply unable to meet it. There is another very serious situation in this connection, which seems to absolutely forbid the recovery of damages under this section. I have tried a number of these cases and am somewhat familiar with the decisions of the courts upon them in all the cases. This drainage district began operation in January, 1900. We have in the State of Illinois a five years statute of limitations. In the case of Jones v. Sanitary District, reported in 252 Ill. 561, which was commenced on March 17, 1908, a plea of the statute of limitations was filed by the department setting up that the damages claimed were permanent damages and therefore recovery of same was barred by the five years statute of limitation, because the damages occurred at the beginning of the operation of the district in January, 1900. In that case four of the judges held that the statute of limitations was not a bar and three of the judges filed a dissenting opinion as follows: "We are of the opinion under the averments of the declaration, the main channel of the sanitary district is a permanent improvement and that the statute of limitations commenced to run from the date the water was turned into the said canal; and that the court erred in sustaining a demurrer to the plea setting up the five years statute of limitations." So that in that case the court stood four to three. In subsequent cases the Supreme Court explained the Jones case, and finally reached the conclusion that the damages were permanent and were barred by the statute of limitations. So that as to the suits filed subsequent to 1905 the landowners have no remedy under this position of our Supreme Court. The seriousness of the situation and the resultant damages were not in fact realized by the landowners during the five years immediately subsequent to 1900, and when it was realized they were met with this bar of the statute of limitations. And one reason it was not realized was that during the first five years the permit of 4,167 cubic feet per second of the War Department was not seriously exceeded. And, further, it had not been anticipated that the rule of permanent damages would apply. During the past few weeks, on account of the decree of injunction of the United States district court, and now pending by appeal in the Supreme Court, from which it would appear the sanitary district will be enjoined from diverting more than 4,167 cubic feet per second unless it can get a bill passed by Congress giving it the right to divert more water, some approach has been made to pay some of these damages under pending suits. To what extent this will be carried after the permission is gotten from Congress is very uncertain. From the past I take it that as soon as Congress passes the law giving permission just so soon will negotiations from the sanitary district cease. This effort, it would seem, is being made for the purpose of getting the people along the Illinois River to appeal to Congressmen and Senators to vote for a law giving the sanitary district this permission. During the last week or two a full-page advertisement has been carried by the sanitary district in all county papers in the Illinois River Valley, a copy of one of which I desire to present and have made a part of this record. At the south end of the drainage canal there has been constructed by the sanitary district a hydroelectric power plant operated under a head of 34 feet; the estimated capacity of this plant is 36,000 horsepower and which it is proposed to enlarge. It is stated by the officials of the sanitary canal that the power plant provides light for the streets and parks of Chicago, effecting an annual saving of over $1,000,000, and that the sale of power to manufacturing plants along the canal nets a profit of $100,000 a year. Much of the current is used by the sanitary district itself in the operation of the electrically driven sewage pumps and stations and the machinery in the sewage-treatment plants. The cost of this power plant was about $1,500,000, and during the last 10 years the actual output of this plant has been an average of about 120,000,000 kilowatt hours. By an amendment to the constitution of the State of Illinois, followed by an act of the legislature, there has been provided $20,000,000 for the construction of what is known as the Illinois waterway from the south end of the Chicago Drainage Canal to Utica, a distance of about 60 miles; the division of waterways of the State of Illinois has this project under development. The division of waterways of the State are also asking for a diversion from Lake Michigan of 10,000 cubic feet per second for the purposes of this waterway and including the development of the hydroelectric power along the same. Under bills now before Congress it is proposed to so improve the Illinois River from Utica to its mouth as to make and sustain a 9-foot channel for navigation purposes, at a cost of about two to five millions of dollars. So that by the three waterways-the sanitary drainage canal, the Illinois waterway, and the Illinois River-it is proposed to create a waterway from the Great Lakes to the Mississippi River and to the Gulf of Mexico and also to construct hydroelectric power plants of thousands of horsepower capacity. Mr. M. G. Barnes, chief engineer of the division of waterways of Illinois, in a report dated February 14, 1922, on the value of increase in diversion from Lake Michigan from 4,167 cubic feet per second to 10,000 cubic feet per second. and which was prepared for the information of the Chief of Engineers of the United States Army, says: "If the flow from Lake Michigan can be increased to 10.000 cubic feet per second the State will have available for sale, 200,000,000 kilowatt hours added annually; this power is easily worth 44 mills per kilowatt hour, and this represents an annual income of $900,000. The annual interest, operation, and maintenance charges on power plants necessary to develop this additional power is estimated to be $250,000, leaving a net income to the State of $650,000, which, capitalized at 5 per cent, amounts to $13.000,000 and represents the value to the State of the additional water for power purposes." He also says: "It will be seen from this estimate that if the flow from Lake Michigan is increased from 4,167 cubic feet per second to 10,000 cubic feet per second the Government will be saved an expenditure of $3,448,400 in the improvement of the Illinois River between Utica and Grafton. In other words, a 9-foot channel with 10,000 cubic feet per second can be secured for about 45 per cent of the cost of securing an 8-foot channel with a diversion of 4,167 cubic feet per second." In the same report he points out the value of this additional flow in the improvement to the Mississippi River from Grafton to St. Louis but does not go into detail to show the saving that would be realized by the additional flow. He further says: "In addition to the value of this additional water to the State and Federal Government, it is a value to corporate interests now developing water power at Lockport and Marseilles. The increase in flow to 10,000 cubic feet per second would add 140,000,000 kilowatt hours to the power available at these two sites. This power is of equal value to that to be developed by the State, and if our reasoning is sound this additional energy is worth $9,100,000." The value of the additional water with a flow of 10,000 cubic feet per second to the State of Illinois, to the Federal Government, and to corporate interests has been outlined as follows: Decreased cost of completing the Illinois waterway. $2,000, 000 13, 000, 000 Decreased cost to the Federal Government in securing 9-foot channel in Illinois River____ 3, 448, 400 1, 000, 000 9, 100, 000 28, 548, 400 Government in capitalized saving in maintenance of the Illinois and Mississippi Rivers___. Value of additional water power at Lockport and Marseilles-- Total He further says: "With the enormous commerce now in sight it is reasonable to suppose that soon after the completion of the improved channels an annual traffic of 20,000,000 tons will seek transportation on these rivers. The saving of 9-foot channel over 7-foot channel, based on above computation, amounts to $1,200,000 annually, which, as capitalized at 6 per cent, shows the value of 9-foot channel over 7-foot channel to be $20,000,000." Mr. Barnes in his sixth annual report, 1922-23, states: "If this additional flow from Lake Michigan is authorized, the Government will be saved an expenditure of nearly $5,000,000 in the improvement of the Illinois and Mississippi Rivers; the State will be saved a large amount of money in the completion of its Illinois waterway project and the additional value of power that may be obtained from water now going to waste, will amount to many millions of dollars more. The total value of this additional water to the middle West in navigation, farm interests, sanitary needs, and power, will exceed $30,000,000." You will note that these valuations are placed upon the additional flow of water to 10,000 cubic feet per second above 4,167 cubic feet per second, so that this valuation would be multiplied in counting the value of the total flow of 10,000 cubic feet per second to the sanitary district, the State of Illinois, and the Federal Government, resulting from these projects already completed and proposed. In an address by Lyman E. Cooley, an engineer of the sanitary district, made on November 25, 1910, he said: "We can not carry the water through the Illinois Valley on 9 feet; we can not carry one-third of it without endangering about 400,000 acres of bottom lands to a degree that is not to be contemplated." Isham Randolph, for many years the chief engineer of the Chicago Sanitary District, in an argument made to the Secretary of War in 1912, said: "Sundry objections to granting the plea of the Sanitary District of Chicago, until such time as the channel of the Illinois River has been made adequate to give the flow artificially delivered to it, have been filed by associations and individuals having and owning property in the Illinois Valley. We have no quarrel with these petitioners; in fact, this is a basis of reason in their effort to protect themselves through you. They are suffering a burden which they ought not to bear." Mr. Adcock, an attorney for the Chicago Sanitary District, in discussing the suit in the Federal court concerning the injunction asked by the Federal Government to limit the flow to 4,167 cubic feet per second as per Government permit, before the City Club of Chicago, in April, 1913, said: "If War Department's order is sustained by the court and the sanitary district is compelled to lessen the flow as demanded in that order, the sanitary district will be required to spend from one hundred millions to one hundred and fifty millions of dollars within the next 20 years in the construction of sewerage works, pumps, and the adoption of other measures to overcome the impurities from the sewage emptying into the canal." I am calling your attention to this phase of this question to show you this situation: We have here, demanding this 10,000 cubic feet per second of water for these three great projects, the Sanitary District of Illinois, populated by over 3,000,000 of people with billions of dollars of wealth; and the worth of which water it is claimed is the health and wealth of millions of people in Chicago, the creation of millions of dollars of wealth and the creation of a great waterway of transportation of immense benefit to the commercial interests of Chicago, to the people of the State of Illinois, and Nation; and the saving to the people of Chicago of millions of dollars. Now, it is asked that the Federal Government join in this demand and help build this great waterway. The engineers of the Federal Government reply that 1,000 cubic feet per second are sufficient for the waterway; but in reply to this the sanitary district and the State say, yes, but with 10,000 cubic feet per second the Federal Government can improve the Illinois River at a cost of 45 per cent of what it would cost with 1,000 cubic feet per second. If the Federal Government shall yield to this demand in thus taking and using this water in the protection of the health and the creation of great wealth, then these three organizations of Government will be instruments of the destruction of the health and farms and homes of industrious and worthy people along the Illinois River Valley, if not some way protected. It can not be justified. Private property ought not to be thus taken and damaged without just compensation. The survival of the strongest should not be made the rule of any governmental agency. Pollution. As has been stated, the Illinois River is about 280 miles in length. The city of Havana is about 160 miles from its source. The fish industry of this river prior to the construction of the sanitary canal was the largest of any river in the United States except the river of Columbia and fish from this river were shipped to many markets of the United States and as far east as New York City and in carload lots. For many years stringent laws were passed by the General Assembly of the State of Illinois to protect this fish industry. Many people along the Illinois River made their living solely by fishing and the people of the country were supplied with fish for food. This industry capitalized was worth millions of dollars and of great benefit to the people in the supply of food. It is now a well-known fact that the fish industry in the Illinois River as far down as the city of Havana has been destroyed by the pollution of the water of the Illinois River by the sewage from the sanitary canal. No fish can live in this water in the Illinois River now as far down as 1 mile below Havana. This pollution and destruction of fish has progressed down the river for the 23 years of the existence of the sanitary canal and at the rate of 6 miles of the river a year; 160 miles in 23 years. At the same rate, in 20 more years, the destruction of fish in the Illinois River will have been completed and the industry totally destroyed. The act of the Legislature of 1889 under which the sanitary district of Chicago is organized, section 20, provides: * * "Any channel or outlet under the provisions of this act, which shall cause any discharge of sewage into or through any river or stream of water, beyond or without the limits of the district constructing the same shall be kept and maintained of such size and in such condition that the water thereof shall be neither offensive nor 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." The words "solids shall be taken therefrom" mean and were intended to mean, the solid matter in sewage. It is a well known fact that for a number of years and along the Illinois River for many miles below Peoria that the waters thereof are exceedingly offensive and injurious to the health of the people; and it is very true that no serious attempt has ever been made to take from the sewage the solid matter. In an appeal by the sanitary district to the War Department for the diversion of this increased amount of water, signed by George M. Wisner, Chief Engineer of the sanitary district, and C. Arch Williams, attorney for the district, says, that if the sanitary district were compelled to immediately comply with the limitation of flow granted very disastrous results would ensue; * * *the Des Plaines River through Joliet and the Illinois River would reach a serious septic condition, causing nuisances, perhaps endangering life and destroying all fish life in the Des Plaines and Illinois Rivers, ruining that industry, which has grown to be one of the great industries of the State. In an answer filed by the sanitary district of Chicago to the bill of complaint of the State of Wisconsin in a suit now pending in the Supreme Court of the United States it is stated: "If the said flow were entirely restrained or limited as aforesaid, there would not be water with which to digest, dilute, or oxidize the sewage as it would be discharged into the Des Plaines and Illinois Rivers. The Des Plaines and Illinois Rivers would become polluted; the oxygen content of the water would be entirely eliminated, and a septic condition would exist in the Des Plaines and Illinois Rivers, along the entire course of said rivers, producing results unhealthful to the people along said rivers and wholly destroying fish life therein." In the third annual report of the division of waterways of the State of Illinois for the year July 1, 1919, to June 20, 1920, it is stated: "The Des Plaines and Illinois Rivers are badly polluted, and for years have been unfit for bathing or domestic use or for stock; and the fish industry has been completely destroyed as far down as Peoria. The stench at times in the summer season is offensive and is also a damage to navigation." Prof. Stephen A. Forbes, chief of the natural history survey division of Illinois, in a report submitted in April, 1920, concerning the pollution of the Illinois River says: "In 1918, on the other hand, polluted conditions very like those above Ottawa, in 1911, had appeared 51 miles below Ottawa at Lacon, where the bottom sediments of the river had a stinking odor, sewage worms were abundant in the sludge, which contained no clean water organisms, and the oxygen of the water was only about a tenth that of a normal stream and less than half that necessary to the life of our Illinois River fishes. There has thus been a progression downward of pollutional conditions at an average rate of 6 or 7 miles a year. Furthermore, with the disappearance of the animal life of the bottom, upon which the river fishes largely depend for food, the number of the fishes themselves has fallen off so far that fishing operations were generally abandoned last summer in the middle of the season at Havana, between which place and Liverpool the observations above described were made.” As has been shown, the sanitary district has been discharging for a number of years 10,000 cubic feet per second of water and with that amount of water, "the very disastrous results," predicted in the above statements, have taken place and will continue to grow worse, so that in a generation or two the Illinois River will have become a foul sewer and the farins along this valley, will have become the cesspools of Chicago sewage. We have tried to establish the following propositions: (1) That the drainage districts along the Illinois River include a large area of valuable agricultural land, which has been reclaimed and is being maintained at large expense to the owners. (2) That a large part of the cost of this reclamation and maintenance has been made necessary by the flow of water from the sanitary district. (3) That great loss and damage has been suffered to these lands, crops. buildings, and structures and to levees, ditches and works by this water. (4) That this water has been diverted into the Illinois River contrary to and in violation of law and right. (5) That the sanitary district has been defiant of the rights of these landowners and ruthlessly destructive of their property, and has refused to recognize its liability or pay for the losses and damages it has caused. |