In order to drain the territory which it is proposed to drain by means of the Kedzie avenue sewer and the Western avenue sewer, it would have to be at least 12 feet in diameter, and very likely larger. The surface of the ground east of Western avenue is less than 10 feet above Chicago datum. This means that with a sewer put as low as possible the top of the brickwork would be about at the surface of the ground; and, although the grades of the street are about 3 or 4 feet above the surface of the ground, the sewer would be so shallow that when flowing full it would flood any basement in its entire course. The cost of such a sewer would be excessive, and it would be more economical to build inverted siphons under the old canal and to drain directly south to the sanitary district canal, if we are unable to cross the old Illinois and Michigan Canal in the manner that we propose.

If necessary, I am ready to come to Washington to explain matters to the committee, but I do not consider that I can make matters any clearer than the above statement does. It seeme to me that there can be no good objection to the actual abandonment of the old canal north of Lockport when the new locks are in place, although there may be serious objection for various reasons to turning the old canal and adjacent lands over to the sanitary district. If there seems to be much opposition to such a procedure, I would suggest that Congress be asked to merely relinquish any claims the Government may have on this canal to the State of Illinois, and leave the matter of final disposal of the lands to the State. C. D. HILL, Engineer, Board of Local Improvements.

Yours, very truly,

CHICAGO, February 11, 1907.

Mr. GEO. A. SCHILLING

(Care of The New Willard, Washington, D. C.). DEAR SIR: Yours of February 9 just received.

In regard to building sewers in Kedzie avenue and Western avenue, so that the top of the brickwork will not extend above the bed of the old canal, I will say that such construction is possible, though not advisable. In fact, I had plans for such a sewer in Western avenue prepared, and submitted the same to Mr. Ra dolph for approval; and while he approved it under the conditions that had previously existed, viz, that the old canal was in existence and had to be considered, he declined to approve it under the new conditions, which were that the old canal would no longer be used after the necessary lapse of time for the construction of the sewer. In other words, such a sewer can be built if it be determined to maintain the old canal as a navigable stream. The cost of such construction will be considerably greater than if the sewer were run straight through at the regular grade, and the cost of annual maintenance will be considerably greater, for the reason that there will be a deposit of sand and gravel that may be washed into the sewer in the deepest portion under the canal.

At one time I prepared a plan for a sewer in Kedzie avenue to pass under the old canal by means of an inverted siphon. These plans were submitted to the State commissioners, and finally received their approval, depending upon the city entering into a proper contract relating to the matter. When this contract was submitted to

Mr. Blocki, superintendent of public works, he declined to sign it, for the reason that he was convinced that the old canal would be abandoned and that such a con-truction would be expensive to build and maintain and that it would be impracticable to proceed with such construction.

If it can be clearly demonstrated that the old canal must remain a navigable stream, then these sewers must be constructed as inverted siphons under the canal. On the other hand, if we were to pass an ordinance and levy an assessment for such a form of construction, objectors would certainly raise the point that such construction was expensive and unreasonable, and it is probable that their objections would be sustained by the courts.

I have read your letters to Mr. May and the inclosed opinion from the AttorneyGeneral, and assuming that the opinion of the latter is correct, it still remains true that the old canal is still under the jurisdiction of the State of Illinois. The old canal has never been under the jurisdiction of the War Department as a navigable stream. If we must obtain permission from anyone for the crossing of this canal, it must be obtained from the State and not from the National Government. If the construction of the proposed sewer and other acts, either by the city or the State, should result in the abandonment of the canal as a navigable canal, and the opinion of the AttorneyGeneral be correct, then and then only will the lands along the canal revert to the National Government, and such reversion will not affect the right of the public to use

the streets which have for years been open to cross such strips of land. I therefore fail to see any reason why we should ask permission in any form from the National Government for the construction of our sewers.

In regard to the proposed construction of pumping stations, they would be much more expensive to build and operate than the inverted siphons which I have referred to above, and in my opinion there is no occasion for considering the construction of such pumping stations or asking for any appropriation for them. In any event we could not ask for an appropriation for such pumping stations until we had determined upon some definite plan in regard to them. The cost of the Jackson Park avenue pumping station was about $160,000, and while I am uncertain as to the cost of maintenance, I expect it will be about $25,000 a year.

I will try to send you under separate cover some of the plans and maps you ask for, but I am uncertain that I have prints of the Jackson Park avenue sewer system. Yours, very truly,

C. D. HILL, Engineer, Board of Local Improvements.

COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES,

Washington, D. C., February 7, 1907.

Hon. FRED C. STEVENS, Chairman, Washington, D. C.

MY DEAR MR. STEVENS: Hon. George A. Schilling, president of the board of local improvements of the city of Chicago, writes me inquiring to what extent freight traffic is still carried on by boat on the Illinois and Michigan Canal north of Joliet, and to what extent interests adjacent to the canal, such as mine, would be affected by the construction of a sewer through the canal at Kedzie and Western avenues, the arch of which would be a considerable height above the bottom of the canal, and thereby necessarily become an impediment to navigation.

In reply to his questions, I beg to say for your information that prior to the completion of the sanitary district drainage channel, which parallels the Illinois and Michigan Canal, the Western Stone Company, of which I am president, ran a large number of boats on the Illinois and Michigan Canal between Lockport, Lemont, and Chicago. Several other companies engaged in similar business did likewise. The amount of tolls paid by my company to the State for the privilege of operating on the Illinois and Michigan Canal sometimes reached $30,000 per annum.

The sanitary district board, under the law, has no right to charge tolls for navigation on the channel constructed by it. All the great industries north of Lockport which shipped by water moved to the drainage channel when it was opened several years ago and now transport their commodities over that waterway.

The result is that between Joliet and Chicago there is now but an occasional grain boat running, and that from the Norton Mills at Lockport. The water supplied to this stretch of the Illinois and Michigan Canal is pumped from the Chicago River at a very great annual expense. The State receives no revenue except from the water power at the Norton Mill at Lockport, to supply which it is necessary to expend the money for the pumping above referred to.

The legislature of the State recently passed a law declaring in favor of the abandonment of the canal from a point near Lockport to Chicago, which law provides for a connection with the sanitary district channe between Lockport and Romeo. This connection is now being constructed. It will be completed within three or four months. After that the Illinois and Michigan Canal traffic will run through the sanitary district channel from the point of the connection, and pumping will no longer be necessary.

I think it is safe to say that the sewer which the city of Chicago seeks authority to construct would, under the circumstances, be no impediment to navigation, because, while there is little or none now, there will be none at all when the connection which I have endeavored to describe is made between the two canals.

Very sincerely, yours,

MARTIN B. MADDEN, President Western Stone Company.

[H. R. 24271, Fifty-ninth Congress, second session.]

A BILL In relation to the Illinois and Michigan Canal and granting to the State of Illinois all rights, easements, and title of the United States in, to, and into that portion of said said canal lying between the upper basin situated in the city of Joliet and Lake Michigan.

Whereas heretofore the United States, by act of Congress passed on, to wit, March thirtieth, eighteen hundred and twenty-two, authorized the State of Illinois to survey a route for a canal connecting the Illinois River with the southern bend of Lake Michigan, and reserving ninety feet of land on each side of said canal from sale and vesting the same in said State for canal purposes upon certain conditions, reserving certain rights to the United States; and

Whereas, in order to assist the State of Illinois in the construction of said canal, the United States, by act of Congress passed on, to wit, March second, eighteen hundred and twenty-seven, granted to said State a quantity of land equal to one-half of five sections in width on either side of said canal from one end thereof to the other, to be disposed of by said State as it saw fit, for the purpose of constructing said canal; and Whereas said State of Illinois, by act of legislature passed in eighteen hundred and twenty-nine, duly accepted the grants of Congress aforesaid and surveyed, laid out, and constructed the canal as by said grants proposed, which said canal connected Lake Michigan with the navigable waters of the Illinois River by a channel leading from a point near Utica, Illinois, to a point on the South Branch of the Chicago River about four miles from where said river empties into Lake Michigan, said canal having been constructed and maintained of a size sufficient for canalboat navigation; and

Whereas said State of Illinois, by act of its legislature passed in eighteen hundred and ninety-nine, provided for the incorporation of the Sanitary District of Chicago, a municipal corporation, and authorized said corporation, for the purpose of providing an outlet for the drainage and sewage of the city of Chicago and contiguous territory, to construct a channel whereby the sewage and drainage of said district was to be carried into the Des Plaines River by water from Lake Michigan, said channel to be of such dimensions and so constructed as to be navigable by the vessels of the Great Lakes and upon its completion to be a navigable stream; and Whereas the said Sanitary District of Chicago, pursuant to its said authority, has constructed a channel parallel and adjacent to the Illinois and Michigan Canal from the latter's connection with the Chicago River to the said upper basin at Joliet; and

Whereas said channel of said district is of sufficient size and dimensions to accommodate not only canal-boat navigation, but also navigation of the vessels of the Great Lakes, and is completed to within a short distance of said upper basin and will within a few months be connected with said upper basin and will then afford all the accommodation for commerce heretofore afforded by the said Illinois and Michigan Canal between said upper basin and Chicago, and much more; and Whereas said channel of said Sanitary District of Chicago has been constructed by said district at an expense of nearly fifty millions of dollars, and forms the first section of the deep waterway from Lake Michigan to the Mississippi River; and Whereas the State of Illinois has authorized said district, upon connecting its channel with the upper basin at Joliet, to cut across and destroy the Illinois and Michigan canal between said points; and

Whereas in the judgment of Congress the old right of way of said Illinois and Michigan Canal between said upper basin and said Chicago River, being adjacent to said right of way of said Sanitary District of Chicago, will be of more service and benefit to the people of that community and of the State of Illinois by being made a part of the said right of way of the Sanitary District of Chicago: Therefore

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there be, and is hereby, granted to the State of Illinois all the rights, easements, interest, and title of every kind and nature now owned or possessed by the United States in, to, and into that portion of the Illinois and Michigan Canal lying and situated between the upper basin in the city of Joliet, Illinois, and Lake Michigan, it being the intention of Congress by this act to give to said State a clear title to the bed, banks, towpath, and reserved lands on either side of said canal, and to all the appurtenances and appliances appertaining and belonging to said canal, including all locks, basins, water rights, water privileges, and water power heretofore possessed and enjoyed by said canal: Provided, however, That this grant is made on the express condition that said State will, within six months after the passage of this

act, grant unto the Sanitary District of Chicago all the rights, titles, easements, and privileges hereby granted to it, together with all other property rights, title, interest, and easements which said State has in said portion of said Illinois and Michigan Canal, and in case of the failure of the State of Illinois to comply with the provision of this proviso by granting over to the Sanitary District of Chicago then this act to be null and void.

[Filed by Mr. Charles L. Walker.]

In re title of State to the Illinois and Michigan Canal.

Hon. W. H. STEAD, Attorney-General:

Pursuant to your request to give you a brief of authorities having reference to the title of the State to the Illinois and Michigan Canal, and what effect thereon an abandonment of the canal would have and the accuracy of the opinion of JudgeAdvocate-General George B. Davis, to the Secretary of War, of date January 31, 1907, in connection with the bill introduced by Mr. Wilson for the transfer of that portion of the canal lying between Joliet and Chicago, I respectfully submit the following:

On March 30, 1822, Congress passed an act authorizing the State to locate a canal through the public lands connecting the Illinois River with Lake Michigan, and granting it 90 feet of land on each side thereof, on condition that the State should survey and file a map of the canal with the Treasury Department within three years, and if the ground should ever cease to be used for a canal for navigation the grant should become void and of no effect.

Under this law no survey was made and no plat filed. Therefore no rights were acquired under it.

In 1826 the legislature memorialized Congress for aid in the construction of such canal, and Congress responded with the act of March 2, 1827, granting to the State in fee one-half of five sections in width on each side of the canal when located, authorizing the legislature to dispose of the same for canal purposes, and no other, and to convey the fee-simple title to purchasers.

Under this act the canal was constructed, and you will notice this act contains no reservation whatever, of reversion or otherwise, but is an absolute grant.

You will note further that the act of March 30, 1822, granted no land to the State except for right of way and 90 feet on each side thereof, while the act of 1827 is a grant of land of five sections in width on each side of the canal when located.

The question of the rights of the State first came to the attention of our supreme court in the case of City of Chicago v. McGraw (75 Ill., 566, 572-573).

The court, after quoting the law on page 573, says a strict compliance with the law of 1822 "is made indispensable by the act of Congress to the vesting of the rights conferred in the State."

The court then refers to the memorial of 1826, the act of Congress of 1827, and the act of the legislature of 1829, and on page 574 says:

"The act of Congress of March 2, 1827, does not purport to be an amendment of the act of March 30, 1822, nor does it, even by inference, refer to it. In our opinion these acts constitute distinct and independent offers by the Government of the United States, of aid to the State in the construction of canals, and the latter one having been accepted, without reference to the terms and conditions of the former, the State is only entitled to the grant which it conveys.'

This question was next before the supreme court in the case of Werling v. Ingersoll (182 Ill., 25), and the court, by reference to the McGraw case there, reaffirms its holdings that the court acquired no rights under the act of 1822.

This last case was taken to the Supreme Court of the United States, and is found reported in the 181st U. S., p. 131, wherein the judgment of our supreme court was affirmed. In that case the court reviewsat length the legislation of Congress and the State, and on page 139 says: "It can not be denied that between 1822 and the passage of the act of Congress in 1827, no route had been adopted for the canal and no work of construction had been commenced thereon," and not until after January 22, 1829. Yet you will note by the express language of the act of 1822 that a map of the route selected must be filed within three years, or the grant should become void and of no effect.

On page 140 the court refers to the difference between the acts of 1822 and 1827, and on page 141 says:

"Upon all the facts in the case it is plain that the act of 1822 was mutually abandoned by the parties so far as it concerned the land grant after the passage of the act of 1827, and that the right of way through the reserved sections was treated and regarded as impliedly granted by the latter act, under which the larger grant was made, and that the map was filed under that act, and none was ever filed under the act of 1822."

These decisions would seem to put beyond all question the fact and law that the canal was built under the law of 1827, and not under the law of 1822, and the law of 1827 granting a fee simple title to the State without any reservation whatever as to title the State is the owner of the canal bed and the right of way as it now exists, and that the Federal Government has no authority over it whatever, and therefore should not pass any legislation with reference to it or attempt to have any control thereover.

The only other provision in the act of 1827 under which any claim could possibly be made is that providing that the canal should forever remain a public highway and give "free use of the canal by the United States Government.'

That proviso, however, does not refer to the title granted, and can not be construed as affecting the title.

That this is so shown by the case of Walsh v. C. H. V. & A. Rwy. Co., reported in 176 U. S., p. 469.

That case involved the construction of a similar act of Congress granting to the State of Ohio 500,000 acres in aid of construction of canals. That act, like the Illinois act, provided that the land should be sold for the purpose of the construction of the canal, with the same language as to perpetuity and free use by the United States. The legislature of Ohio, in 1894, passed an act abandoning one of the canals and leasing it to a railroad company.

The plaintiff, owning land on both sides of the canal, brought suit to enjoin the railroad company from constructing the railroad as in violation of the act of Congress granting the land and the Constitution of the United States as impairing that contract. The supreme court of the State of Ohio held that the complainant had no cause of action and that the act of the legislature of Ohio was not in violation of the act or the Constitution, and the Supreme Court of the United States affirmed this holding, and on pages 477–478 declare that the "proposed use of the right of way for a railway was an analogous public use to that of the canal, and was not in violation of the act of Congress or the Constitution."

This decision clearly holds that even though the legislature of Illinois had in fact abandoned the Illinois and Michigan Canal, that it could, nevertheless, use it for other " public highway purposes.

The fact is, however, that the legislature of Illinois has not abandoned the canal, but it still using it, and therefore no possible question of abandonment or loss of title is now presented which would even give Congress "the co'or of right" to intermeddle by passing the Wilson bill or any act relating to the Illinois and Michigan Canal. Respectfully submitted.

C. L. WALKER.

[Filed by Mr. Robert R. McCormick.]

ILLINOIS AND MICHIGAN CANAL.

By the provision of the constitution of 1870 the Illinois and Michigan Canal can never be sold or leased until the specific proposition for the sale or lease thereof shall first have been submitted to the vote of the people of the State at a general election and have been approved by a majority of the votes polled at such election. Whether this provision would apply to a sale to the sanitary district is a question of legal

construction.

The Illinois and Michigan Canal was completed in 1848, and for a number of years was used as a means of transportation of freight and passengers by canal boats, and up to about the time of the adoption of the constitution performed a great service in that respect. At the time of the constitutional convention in 1870 the continued prosperity of the canal was in such grave doubt that a provision was enacted preventing the State's credit being loaned for the purpose of aiding the canal and confining its expenditures for enlargement and improvement to its surplus earnings.