Page images
PDF
EPUB

theory that the effect of draining elevates the temperature, rendering the locality drained less liable to frosts. By lessening the water surface, evaporation is lessened, and the frigidity incident to evaporation is proportionably diminished. A cold soil invariably pertains to the borders of marshes, and frosts visit those localities earlier and more frequently than in the drier uplands of the same latitude. The sanitary effects of these climatic changes are, of course, of greater importance than all others. It is related of the district of the Maremme of Italy, known sometimes as the Tuscan marshes, that, as late as the year 1840, of ten thousand laborers who went from the mountain regions to the plains to gather crops, nearly all of them were subjected to the malignant fevers caused by the prevalent miasma. The average duration of life at that time—including both the healthful and malarial districts—was stated at twenty-three years, the mortality statistics showing that 75 per cent of the deaths were among persons engaged in agricultural pursuits. At earlier dates the exhalations of these plains were considered as almost certain destruction to human life. By judicious efforts put forth, in a series of works of systematic draining, the insalubrity of the region has undergone remarkable changes. In a total population of eighty thousand, the number of fever cases was, in four years, reduced from 35,619 to 9,200. The same remarkable results, although to a less degree, have been produced by the draining of the Lincolnshire fens of England, where a district of four hundred thousand acres, notorious for its being insalubrious and inarable, now compares favorably in both respects with ordinary plains.

The energy of man, in his struggles to surmount obstacles in nature, is illustrated in the history of the Pontine marshesthe Pomptinea paludes of the Romans. Formed, like the aggere of Venice, by the disemboguing of innumerable rivers, and situated comparatively in the vicinity of Rome, these marshes, from an early historic period to the present time, have, in a sanitary point of view, exerted baneful influences on both the ancient and modern capital of Italy, and from the days of Appius Claudius—three centuries B. C.-to the present, they have been the object of almost constant effort on the part of the government to change or modify their character. The construction of the classical Appian way through this once impassable region was the first step toward subjecting it to the use and habitation of man. Since then successive efforts of different administrations tending to the same end, and a variety of plans adopted to accomplish the same, have furnished the world with voluminous and comprehensive data in the art of hydrography and engineering,

These efforts, while partially successful, have yet failed to bring the entire region under control, and these historical marshes, with the district of the Maremme, are still known and shunned to a great extent by the Italian as the “region of the malaria.

The provinces of the Netherlands exhibit, perhaps, the most remarkable instances of success in land reclamation. Of the early history of this territory comparatively nothing is known anterior to the days of Cæsar—its conqueror, and first historian. It was then a half submerged waste, which the Romans were at a loss to designate whether as land or water. In the words of a modern historian, "inundated by mighty rivers, quaking beneath the level of the ocean, belted about by hirsute forests, this low land, nether land, hollow land, or Hol. land, seemed hardly deserving the arms of the all-accomplished Roman." And yet this meagre territory, "a

region outcast of ocean and earth, wrested at last from both domains their richest treasures." For centuries the dunes thrown up by westerly winds upon their ocean borders had gradually caught and retained the slimy deposits of the inland rivers, until an island here and there was formed that, in a measure, provided the nomadic tribes of that locality a precarious subsistence. As civilization advanced and the wants of man increased, rude efforts were made to restrict the channels cf the fresh waters, and in the thirteenth century the construction of the famous sea-dikes was commenced. These, at an

[ocr errors]

expense that can be scarcely estimated, were constructed in such manner as to resist the irruptions of the sea moved by strong westerly winds, at the same time allowing the emission, at low tide, of inland waters. They were carefully arranged to retain the accretions brought down by the rivers, until by this process the

polders or low lands embraced by the dikes were gradually filled up, the sea front being carefully protected by a revetment of stone or fascines. The soft foundation on which they are built in some localities causes them to sink slowly-in some instances to the depth of sixty feet-constant care being required to retain the proper elevation.

The erosions of the sea also call for critical watching, and in many instances, where these have been improvidently disregarded, large tracts have again reverted to the dominion of the ocean.

It is estimated that by these stupendous works—the toil of centuries--onetenth of the area of the kingdoin has been gained to the agricultural surface of the Netherlands, exclusive of forty-five thousand acres secured by the draining of Haarlem lake. Nor does this estimate include the large quantity reclaimed in Schleswig and Holstein.

Our admiration is awakened in contemplating these instances of man's achievements in his formidable struggles with nature. The massive piles of antiquity south of the Mediterranean, stupendous though now comparatively useless, are as nothing compared with these outworks thrown up to check the aggressive march of the turbulent ocean; and the wonders of the ancients afford naught so impressive to the mind of practical men as the teeming villages of the Netherlands securely resting on plains once traversed by the mariner, or the countless herds of the thrifty Hollander now grazing on what was once “the bottom of the sea."

The alluvial plains of the lower Mississippi, embracing by estimate five and a half millions of acres—more than five-eighths of the area of the whole kingdom of Holland—and possessing when reclaimed a soil of unsurpassed fertility, need only the persistent efforts of man in aid of nature to make them eligible for dense population as the rolling prairies of the west. Itis even probable that during the life of many now living, and perhaps within the next decade, the rivers and bayous of Louisiana may be restricted to proper and distinct channels, and the bordering plains freed from inundation. An elaborate report was made in 1829 by one of my predecessors on this subject, which may be found in the 5th volume American State Papers, Public Lands, pages 206 to 211, in which the writer discusses with eminent ability the practicability of draining the entire inundated district by artificial connections made at different feasible points on the Mississippi and its lower tributaries, and leading direct to the Gulf, the distance necessary for excavations to be shortened by chains of bayous and lakes, with several aischarging outlets to each main artificial channel. This theory of outlets is, however, controverted by recent scientific investigations under direction of the corps of United States engineers. In the interesting and exhaustive published report of those investigations, made by the present chief of that corps and an associate, it is held that while such outlets might deplete the waters of the main river in flood time, they would be expensive, and endanger districts now under cultivation, the objection, however, not extending to the effect upon the river, but to the impracticability of controlling the waters drawn off by these waste-weirs. In lieu of these outlets the engineer's report presents, as the surest protection to the inundated districts, the completion of the levee system now imperfectly constructed. This, in the opinion of the engineers, should extend from the mouth of the Ohio to the Gulf, to be built not less than three feet above the level of high water at any point, and increasing in height as the nature of the river at different points might demand.

* See report upon the Physics and Hydraulics of the Mississippi River, No. 4 professional papers, engineer corps, prepared by Captain A. A. Humphreys and Lieutenant H. L. Abbot, United States engineers, 1861.

To perfect the levees now existing it is supposed would involve the expenditure of seventeen millions of dollars, the destruction caused by the flood in 1050 in the Tensas bottom alone having been estimated at more than one-fourth that amount; and the value of lands that would be relieved by the system and rendered permanently susceptible of cultivation is estimated at two hundred and sixty millions of dollars.

When it is considered that the aggregate of lands already conveyed for swamp reclamation is more than three times the surface of Holland, Belgium, the Duchy of Limburg, Luxemburg and the Roman marshes, it will be admitted that the swamp concession of the United States is on a scale of munificence unequalled in respect to similar interests in the history of any nation. In considering the recommendations in the foregoing as to the necessity of fixing more specific limitations as to the period for indemnity and other selections, it will be. for Congress further to determine the propriety not only of prescribing regulations for the adjustment of swamp claims “ in place,” but of making such stipulations as will secure a complete fulfilment in all cases of the conditions of the swamp grant, not only for the benefit that must accrue to individuals and to local communities from the reclamation of large tracts of sugar, cotton, and rice lands, but of extensive regions in other latitudes within the range of the swamp grant, where the yield of other staples may be immensely increased, thus materially and permanently adding to national prosperity.

RIPARIAN INTERESTS. It is a settled principle in the English law that the right of soil of owners of land bounded by the sea, or on pavigable rivers where the tide ebbs and flows, extends to high-water mark, and the shore below common but not extraordinary high-water mark belongs to the state as trustee for the public; and in England the crown, and in this country the public, have the absolute proprietary interest in the same.* At common law the public have a right to navigate every part of a common navigable river, as also the large lakes. In England even the crown cannot interfere with the channels of navigable rivers; they are public highways, the use of which is inalienable. Yet the shores of navigable waters and the soil under them belong to the state in which they are situated. The rights of sovereignty in rivers above the flow of the tide are the same as in tide waters. They are juris publici, except that the proprietors adjoining such rivers own the soil ad filum 'aquae ; yet grants of land bounded on rivers or upon their margins above tide-water, carry the exclusive right and title of the grantce to the centre of the stream, unless the terms of the grant clearly denote the intention to stop at the margin of the river, and the public, in cases where the river is navigable for boats and rafts, have an easement therein or a right of passage subject to the jus publicum as a public highway

If a fresh-water river, running between the lands of separate owners, insensibly gains on one side or the other, the title of each continues to go ad filum medium aquae; but if the alteration takes place sensibly and suddenly, the ownership remains according to the former bounds; and if the river should forsake its channel and make an entire new one in the lands of the owner on one side, he will become owner of the whole river so far as it is enclosed by his land. The same principles govern in the case of national and State boundaries, the question in regard to which is thoroughly discussed and numerous authorities cited in the United States Attorney General's opinion, dated November 11, 1856, volume 8, page 175, relative to arcifinious boundaries.

The Roman law regards alluvions as the means of acquiring a kind of accession, holding that, as the augmentation is effected in a slow and imperceptible

*Vide the elaborate arguments of Mr. Livingston and Mr. Jefferson in the Batture case, American State Papers, Public Lands, volume 2, pages 1 to 84 inclusive.

manner, it remains with the inheritance to which it may be united, the portion thus insensibly added not being considered new land, but a part of the old, which becomes possessed of the same qualities and belongs to the same master in like manner as the growth of a tree does to the owner. The right of increase by alluvion is grounded in the maxim of right, which bestows the profits and advantages of a thing to him who is exposed to suffer its damages and losses.

It is a settled principle that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations, shall still hold by the same boundary, including the accumulated soil. No other rule can be applied on just principles, and hence it is the general doctrine of alluvions that every proprietor whose land is thus bounded is subject to loss by the same means which may add to bis territory, and as he is without remedy for his loss in this way, he cannot be held accountable for his gain.*

The United States have political rights in the waters of the Mississippi, Missouri, and other rivers, and in the soil under them, but have no proprietary rights there disposable to individuals.

The political rights are in virtue of the Declaration of Independence in 1776, acknowledged in the definitive treaty of peace in 1783, and of the treaties by which the territory of the republic has been enlarged. Before the adoption of the Constitution of the United States, Congress, in the fourth article of the ordinance dated 14th July, 1787, for the government of the territory northwest of the Ohio, declared that the navigable waters leading ivto the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, forever free, as well to the inhabitants of said territory as to the citizens of the United States and those of any other State that may be admitted." Thereafter the proprietary rights were dealt with in the fifteenth section of the act of Congress of 4th June, 1812, which declares that the Mississippi and Missouri rivers, and the navigable waters flowing into them, shall be common highways, and forever free to the citizens of the United States.

The proprietors of the adjoining banks have a right to use the land and water of the river in any way not inconsistent with the easement, and neither the State nor any individual has the right to divert the stream and render it less useful to the owners of the soil.

In 3d Scammon's Illinois Supreme Court Reports, in the case of Middleton vs. Pritchard, the rights of riparian proprietors and their relations to islands in the Mississippi were considered. In that case, the justice who delivered the opinion of the court refers to the distinction at common law between streams navigable de facto and those not so at common law, which regards only arms of the sea and streams where the tide ebbs and flows as navigable. The court then held that the Mississippi river is not a navigable stream at common law, and that the title of a riparian proprietor, whose lands are bounded by it, extends to the middle thread of the stream, and includes islands which are separated from the main land by sloughs, yet recognizes the right of navigators, not merely in floating upon the water, but of fastening their vessels on the shore, as a privilege to be borne by the owners of the lands as a part of the public easement.

The separate opinion, in that case, of the chief justice, denies the conclusion drawn from the principles laid down by the court, and rejects such an application of the common law rule as would give the islands to the water-front owners. In that opinion the chief justice refers to the general principle of the common law, that a grant of land upon a river extends the title of the grantee to the middle of the river if the grantor has authority to extend it that far, yet holds that there are exceptions to the rule, which in this country must be so far modified as not to allow a government patent to land on the river margin to include the islands between the shore and the middle of the stream. The conclusive

* 3d Kent, 427; 3d Howard, 212; 10 Peters, 662; 5 Wheaton, 374; 3d Scammon, 510; 3d Smedes and Marshall

, 366; 4 Pickering, 268; 8 Attorney Generals' Opinions, 175.

reason assigned is, that the law confers no authority on the officers of the government to make sales of water-front lands so as to include such islands; and further, that it is indispensable to a valid title that the land shall be surveyed and appear on the official plats, which are the guides of the United States officers in making sales, they not baving authority to dispose of a single acre of unsurveyed land; that without such official designation by survey, the premises have no description known to the law; that frequently islands remain unsurveyed until the lands on each side of the river have been sold, and that thereafter they have been surveyed and sold without any claims by owners on either side of the river, and that the unquestioned claim by the government of title to unsurveyed islands, notwithstanding the previous transfer of the lands on the opposite sides of the river, coupled with the constant practice of surveying and selling them without reference to the sale of the adjacent lands, must be regarded as fixing the construction of a government patent for lands lying on a river so as to exclude the opposite islands whether surveyed or unsurveyed.

The principles and doctrine thus enunciated are in entire coincidence with the decisions and established practice of the General Land Office.

The Mississippi and its tributaries not being arms of the sea, nor, therefore, tidal streams, are, it is true, not navigable in contemplation of the common law of England, wbich had its origin and development in view of the rivers of the British islands surrounded by the sea. But shall the theory of that law apply to and govern in that respect in regard to the very different natural structure of the rivers of that portion of this continent in which the Mississippi and its seventy-six affluents, including the Missouri, Ohio, and Red rivers, drain a region of a million two hundred thousand square miles, capable of supporting in abundance more than one hundred millions of inhabitants, passing from north to south through eighteen degrees of latitude, from soils and climates where the cereals and hardier products exist, to the land of sugar-cane, cotton, and tropical fruits, possessing an aggregate steamboat navigation of sixteen thousand six hundred and ninety-four miles, and bearing upon the bosom of their waters one thousand five hundred steam vessels, with an aggregate burden of more than twice the entire steam tonnage of the British commercial marine? We think not, first, because they are navigable in fact, and so designed by nature as great highways of intercommunication for man, and as avenues of trade continually increasing, and, next, because the common law in that relation has, in our judgment, been changed so as to declare them navigable, such being not only the reason of things, but the force and effect of the northwestern ordinance of 1787, and the congressional enactment of the 4th June, 1812, as hereinbefore mentioned.

For the considerations thus appearing this office has held the soil or bed of the Mississippi and its tributaries, to the extent to which they are navigable in fact, as belonging not to the riparian proprietors, but to the public, and that islands therein, no part of which are embraced in surveyed premises which have been disposed of by the United States, are liable to be dealt with as other public lands. Wben, however, an island appears which has been detached from a sold tract on the main land, such island of course is not liable to further survey or disposal, and so in a recent case before us, in which an application was made for the survey of certain land as an island in the Mississippi river, opposite Cahokia, where the waters of the river had forced a channel through part of a tract embraced in the survey of the commons, the application was denied, as the lo88 suffered by the village in consequence of the inroad of the river through its lands could not only furnish no grounds for disposing of the remnant left, but a good reason for regarding it as the village property, with its accretions.

A case has arisen in which lands were surveyed and sold in the State of Kansas, lying on the west side of the Missouri river. Subsequently that river forsook its ancient course at a certain eastern bend, making a direct shoot nearly due south, so as to detach premises in the bend from Kansas and place them on

« PreviousContinue »