Mr. STEVENS. In what way did they vote; how did the question arise?

Mr. WALKER. The question arose on a joint resolution. Our constitution provides that the canal shall never be sold or leased or anything else without a vote of the people, and the question was submitted to the voters as to whether any action should be taken toward the abandonment of the canal.

Mr. STEVENS. Voters of the State of Illinois or the district?

Mr. WALKER. Voters of the State of Illinois.

Mr. SNAPP. State the result of that election.

Mr. WALKER. I did; that they voted against the abandonment of the canal or the sale or lease of the canal in any way.

Mr. WILSON. Or any part of it, Mr. Walker?

Mr. WALKER. I have forgotten the language of the resolution, but they voted against any disposition of any part of it.

Mr. WILSON. Is there not some disposition to abandon a part of this Illinois and Michigan Canal in Illinois?

Mr. WALKER. No, sir; not that I know of. The legislature a few years ago passed an act increasing the powers of the sanitary district of Chicago, in which they authorized the sanitary district to construct a channel across the canal, I think, in the Calumet region, without imposing on them any obligation for the restoration of the canal. That is the only recent act on the subject of which I have any knowledge at all. Nothing of that kind was to be done until the sanitary district had connected its channel with the upper basin of the Illinois and Michigan Canal with locks, so that transportation on the canal could get into the sanitary district channel.

Mr. STEVENS. What is the situation as to that project?

Mr. WALKER. I do not know. They are building the locks, but I do not know to what extent.

Mr. WILSON. Mr. McCormick, president of the drainage canal, is here.

Mr. WALKER. At any rate no condition has arisen or is likely to arise within a year or more, as I understand it, by which action will be made necessary and by which the sanitary district will have any right to cross the Illinois and Michigan Canal.

Congress, in 1822, passed an act authorizing or granting a right of way for the Illinois and Michigan Canal, not between the points along which the canal was in fact constructed, and provided that the work should begin or that a map of the location of the canal should be filed with the Secretary of the Treasury within three years. That was never done. No rights were acquired by the State of Illinois under the act of 1822. In 1826 the State memorialized Congress, asking for aid in the construction of a canal, and in 1827 Congress passed an act giving the State lands alternate sections 5 miles wide on each side of the canal after it was located, and it was under that act that the canal was built. There was no reversion of any kind in that act of 1827. Mr. STEVENS. Then you contend that the act of March 30, 1822, has no application?

Mr. WALKER. No application whatever. The act of 1827 gave to the State of Illinois the absolute fee of this land, with the right to sell it and the right to convey a fee to anybody that they sold the land to, and it contained no conditions or reservations and no rights of any kind to the Federal Government as to title to the land. The only

reservation was the right of the Government to transport its property over the canal without charge. That, of course, was a matter of contract and did not go to the title in any way; and, therefore, the question of the abandonment would not in any way affect the title of the State or give the Federal Government any rights in the land or title to the land. That title is now and always has been in the State of Illinois.

Mr. WILSON. Absolutely?

Mr. WALKER. Yes, sir.

Mr. WILSON. You have had some decisions, I believe, and you told me you had when you were talking with me on this subject, under the act of 1822?

Mr. WALKER. Yes, sir.

Mr. WILSON. Will you refer to them?

Mr. WALKER. If the committee desires to hear them, I will.

Mr. STEVENS. Yes; whatever cases bearupon this proposition, because it is important.

Mr. WALKER. Perhaps I might do that now. The State of Illinois in the case of the City of Chicago v. McGraw, 75 Illinois, 566–573, holds that the State acquired nothing under the act of 1822, and the language is this:

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.

The adjudication of that question was commenced before the supreme court of Illinois in the case of Werling v. Ingersoll (182 Illinois, 25), and our Supreme Court say in that case:

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 January 22, 1829.

Again they say, page 141:

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.

Mr. WILSON. That is the decision of the Supreme Court of the United States?

Mr. WALKER. Yes; the decision of the Supreme Court of the United States.

Mr. STEVENS. What was that last case?

Mr. WALKER. It is the same case that went through the Federal courts and is reported in 181 U. S., page 131, and following.

Mr. SCHILLING. Was not that an agreed case, Mr. Walker?

Mr. WALKER. No, sir; that was a contested case. Mr. Snapp knows that. He was in it.

Mr. SCHILLING. Was that first case that you cited an agreed case?

Mr. WALKER. I understand not. There is nothing that indicates it in the opinion.

Mr. SCHILLING. I have heard since I came to Washington, through Mr. Logan, that he is informed that there was a Supreme Court decision which was on an agreed case.

Mr. SNAPP. It began before a justice of the peace. Of course the facts were agreed upon.

Mr. WALKER. Now the act of 1822 provided-have you 181 U. S. there?

Mr. STEVENS. Yes.

Mr. WALKER. I will call your attention to the provision of that act under which I apprehend the opinion of General Davis was grounded. In fact he told me so, and said he knew nothing about the facts, but assumed the canal was built under the two acts. This act of 1822 says:

That the State of Illinois be, and is hereby, authorized to survey and mark, through the public lands of the United States, the route of the canal connecting the Illinois River with the southern bend of Lake Michigan; and 90 feet of land on each side of said canal shall be forever reserved from any sale to be made by the United States, except in the cases hereinafter provided for.

It was not connected with the southern bend of Lake Michigan. Then the act continues:

And the use thereof forever shall be, and the same is hereby, vested in the said State for a canal, and for no other purpose whatever, on condition, however, that if the said State does not survey and direct by law said canal to be opened and return a complete map thereof to the Treasury Department, within three years from and after the passing of this act, or if the said canal be not completed, suitable for navigation, within twelve years thereafter, or if said ground shall ever cease to be occupied by and used for a canal, suitable for navigation, the reservation and grant hereby made shall be void and of no effect. * * *

SEC. 2. And be it further enacted, That every section of land through which the said canal route may pass, shall be, and the same is hereby, reserved from future sale,

* * *

You will notice that simply grants a right of way. It grants an easement. It does not undertake to convey a title, but an easement, and provides that if it is not used it shall revert. Had the canal been constructed under that act, and should the State abandon the canal, then the question might fairly arise whether or not the State lost all its right. The supreme court have construed that feature, however, and in another case holds that they did not.

Mr. STEVENS. The court holds that that act of 1822 has no application to the canal as it stands at present?

Mr. WALKER. Yes. The act of 1827 says:

That there be, and hereby is, granted to the State of Illinois, for the purpose of aiding the said State in opening a canal,

*

*

*

Before this act of 1827 was passed the memorial of the legislature to Congress was for aid in the construction of the canal. They could not do it under the act of 1822 and therefore they asked for money. The act of 1827 says:

That there be, and hereby is, granted to the State of Illinois, for the purpose of aiding the said State in opening a canal to unite the waters of the Illinois River with those of Lake Michigan, a quantity of land equal to one-half of five sections in width on each side of said canal and reserving each alternate section to the United States, to be selected by the Commissioner of the Land Office, under the direction of the President of the United States, from one end of said canal to the other; and the said lands shall be subject to the disposal of the legislature of the said State for the purpose aforesaid and no other.

*

* *

SEC. 2. And be it further enacted, That, so soon as the route of the said canal shall be located and agreed on by the said State, it shall be the duty of the governor thereof or such other person or persons as may have been, or shall hereafter be, authorized to superintend the construction of said canal, to examine and ascertain the particular sections to which the said State will be entitled under the_provisions of this act, and report the same to the Secretary of the Treasury of the United States. SEC. 3. And be it further enacted, That the said State, under the authority of the legislature thereof, after the selection shall have been so made, shall have power to sell and convey the whole or any part of the said land, and to give a title in fee simple therefor, to whomsoever shall purchase the whole or any part thereof.

Mr. STEVENS. Now, show me how the right of way was carved out and acquired and placed of record.

Mr. WALKER. I understand in accordance with the act of 1827 the survey was made, the plat made and filed of the lands selected by the Secretary of the Treasury, and the odd sections were turned over to the State of Illinois, and the even sections were reserved to the Federal Government.

Mr. STEVENS. Well, then, how did the canal company or the State acquire the right of way through the even sections?

Mr. WALKER. The supreme court of the State of Illinois in this very case holds that the title was granted by the Federal Government through the even sections; an easement was granted through the even sections.

Mr. STEVENS. Then would there not be a reversion on the easement through the even sections?

Mr. WALKER. I think not.

Mr. SNAPP. Let me explain, Mr. Walker, so that it can go into the record, and Mr. Stevens will have it. As has been said, the statute of 1822 authorized the State to mark out the line of a canal through the Government land and required it to make a survey and file a plat within a certain period. A survey was made, but was not filed within the time required. The State always thought until this decision that it had a right of way 90 feet wide along the canal through the even sections.

This case of Ingersoll v. Werling was begun before a justice of the peace in Lasalle County. It was brought about in this way: Ingersoll claimed to own to the water, or to the towpath on an even section, by conveyance from the Government. The State claimed a 90-foot strip along the canal. Ingersoll had been in possession for a great many years. The State removed the fence and took possession of a 90-foot strip, and Ingersoll then brought suit in trespass; he brought suit against the assistant superintendent of the Illinois and Michigan. Canal. Judgment was rendered against the superintendent in trespass. The State appealed the case to the circuit court, where the judgment was affirmed. They appealed then to the supreme court of the State, and the supreme court of the State affirmed that judg ment. I then brought the case by a writ of error from the State supreme court to the Supreme Court of the United States, resulting in the decision in the 181 U. S. The sole issue in that case was whether the State of Illinois took a strip 90 feet wide under the law of 1822 through the even sections.

Mr. STEVENS. That is exactly what we wanted to know.

Mr. SNAPP. In that case in the Supreme Court of the United States the sanitary district of Chicago intervened in this way: They employed an attorney here to represent them. Apparently, however, he represented the defendant in error, Ingersoll. They undertook also in the

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circuit court of Lasalle County to pay the judgment against an officer of the State, and set up the payment of that judgment in the supreme court in order to show that the litigation had been disposed of. these matters appear of record in the case in the clerk's office of the United States Supreme Court here in Washington.

The supreme court, however, as we argued, ignored the payment of the judgment by the sanitary district, the evidence showing that the payment was made by the sanitary district, and decided the case on the merits; decided the contention of the State to the ownership of a 90-foot strip through the even sections, under the law of 1822, against the State. In that case two decisions of the supreme court of Illinois, one in this case and the decision in the 75 Illinois, referred to by Mr. Walker, are cited.

While some of the facts, the historic facts, as to the survey by the State, and other facts, were agreed upon in the circuit court of LaSalle County, it was not an agreed case in the sense that there was no real litigation between the parties, because it was a claim on the part of the State for 90 feet of land on both sides of the canal through the even sections, and that issue is determined against the State. And in that case the Supreme Court of the United States followed the decisions of the supreme court of Illinois, but decided the issue as a new question and held that the State had not complied with the provisions of the law of 1822; that that law was abandoned; that the State took no title to anything under that law; that the canal was built by the State under the law of 1827; but that the State had the right of way through the canal, an implied right of way through the even sections, under the law of 1827. In other words, they practically held in this decision that the State had no title to the 90 feet or anything else under the law of 1822. But, as I have always construed the decision, it simply held that the State has, under the law of 1827, an absolute title by possession to its right of way and towpath, through the even sections, under the law

of 1827.

Mr. STEVENS. Do you contend that the Supreme Court holds that the State can acquire a possessory title as against the United States without a specific grant by Congress of that specific land?

Mr. SNAPP. They hold that under the law of 1827 the State was given the implied right to mark out this canal through the public land.

Mr. STEVENS. Across the even sections?

Mr. SNAPP. Across the even sections.

Mr. STEVENS. What right did the State acquire across that land on the even sections?

Mr. SNAPP. The Supreme Court holds that they acquired that right. Mr. STEVENS. What right?

Mr. SNAPP. The right to the canal and the towpath bank.

Mr. WALKER. According to the decision of the Supreme Court of the United States

When Congress under the act of 1827 granted the alternate sections to the State throughout the whole length of the public domain, in aid of the construction of the canal, it also granted by plain implication the right of way through the reserved sections, for it can not be presumed the Government was granting all these alternate sections to the State for the purpose avowed, and yet meant to withhold the right to pass through the sections reserved to the United States along the route of the proposed canal. But the implication would not extend to the 90 feet on each