side. It would extend to the land necessary to be used for the canal of the width contemplated, and that had been asserted in an act of the general assembly in 1825 and was subsequently reiterated in another act of that body (1829).

Mr. STEVENS. Do you understand from that, then, Mr. Walker, that that would carry the title from the Government to the State to the 90 feet in the even sections?

Mr. WALKER. Not the 90 feet, but the bed of the canal and the berm-bank through the even sections.

Mr. SNAPP. It was a bitterly litigated suit, and finally determined, as I said, against the State. I would suggest that in this connection the committee get the files of the arguments, the briefs filed in that

case.

Mr. STEVENS. That is the only point of this hearing.

Mr. WALKER. Let me call your attention now to another decision of the Supreme Court which elucidates the problem you suggest, and it seems to me to dispose of it in our favor.

Mr. WILSON. Then you contend that the State of Illinois has not absolute title to the 90 feet on either side of this canal in the even sections?

Mr. WALKER. No, sir; the Supreme Court has held not.

Mr. SNAPP. We did contend so, but were defeated in that contention. Mr. WILSON. Then the Government has some right in this Illinois and Michigan canal?

Mr. SNAPP. It has not.

Mr. WALKER. If the Government has sold the land to the adjoining owners, it belongs to them.

Mr. WILSON. It would depend upon the deeds or conveyances to each individual on the even sections of the land?

Mr. SNAPP. That is a question, of course, between the State and the individual citizens of the State; and their title, of course, depends on the laws of the State.

Mr. WALKER. Now, upon the other proposition you suggest, the question of the effect of the title to this portion of the canal property to the even sections: The only case I have found bearing upon that point is the case of Walsh . Columbus, Hocking Valley and Athens Railway Company, reported in 176 U. S., 469. The Federal Government granted to the State of Ohio 500,000 acres of land in aid of construction of canals. The State of Ohio built this canal that is involved in this case and operated it for a while, and then passed an act of the legislature abandoning the canal, leasing it to a railroad company for the construction of a railroad thereon and the operation thereof. The adjoining owner brought injunction against the railroad to enjoin the railroad company from building its railroad, claiming that the title to the land had reverted to the United States; at any rate that they had lost their right under that. But the Supreme Court of the United States said no, and this is a portion of their opinion, reported on pages 477 and 478:

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.

The language of the act granting the land to Ohio was practically the language of the act of 1827, granting the land to the State of Illinois. The only reservation therein was the right of free transporta

tion to the Federal Government of its property over the canal, just as the only reservation in the act of 1827 as to Illinois is a similar provision. One of the points invoked was that it was in violation of the Constitution of the United States, invalidating the contract made between the Federal Government and the State of Ohio by reason of the reservation in the grant.

Whether the canal should be maintained forever as such, or should give way to more modern methods of transportation, was a matter of much less moment to the United States than to the State. The General Government was only interested in securing their use for the public and the free transportation of its own servants and property. The object of the act was to facilitate and encourage public improvements, but not to stand in the way of the adoption of more perfect methods of transportation which might thereafter be discovered.

Had the question of internal improvements arisen ten or fifteen years later, when railways began to be constructed, it is quite improbable that the State would have embarked upon this system of canals or that Congress would have aided it in the enterprise.

Waiving the question whether the State could have abandoned the lands upon which these canals were built, as public highways, we think it entirely clear that Congress could not have intended to tie the State down to a particular method of using them, when subsequent experience pointed out a much more practicable method which has supplanted nearly all the canals in use.

There was no undertaking to keep up the canals for all time, and we think the proper construction of the proviso is that the Government should be entitled to the free use of the canals as long as, and no longer than, they were maintained as public highways, and that the act of 1894, leasing those lands to the defendants for an analogous purpose, does no violence to the contract clause of the Constitution.

Were the question one of doubt, we would hesitate long before refusing to defer to the many decisions of the supreme court of Ohio, through several changes in its personnel, holding it to be within the power of the State to abandon the canal for other public purposes, and that such abandonment gave no right of action to private parties incidentally affected or damnified by it.

Then there are cited decisions of the supreme court of Ohio and decisions of the supreme courts of New York, Vermont, Pennsylvania, and Massachusetts.

That, it seems to me, shows that although the legislature should hereafter it has not done so yet-pass an act abandoning this canal or any portion of it, it still would not require that even the even sections should go back to the United States, because there is no provision therein except the provision similar to that in the Ohio statute, and therefore it would remain in the State. If the State undertook to sell the property to you or me, then another question might arise; but until the legislature by its action determines that it will abandon the canal and determines what the facts of that abandonment shall be, there is no right in the Federal Government to interfere.

Now, you will see very readily that the attempt to do so is to cloud the title to the land in Illinois to raise a question whether or not the Federal Government still assumes to own that land and exercise some control over it. We say that the Federal Government ought not to do that, that the legislature of the State of Illinois is in control of the property and has passed no law showing an intention to abandon it. or showing an abandonment, and, therefore, if there is anything desired by the sanitary district with reference to this canal, they should be relegated to the legislature of the State of Illinois to get their rights and should not come to Congress to ask Congress not only to undertake to interfere in this matter when there is no abandonment, but also in a certain way to cloud the title of the State in the property.

Now, furthermore, with reference to this bill, the bill on its face seems to indicate that the canal lands and the sanitary district lands adjoin one another and that it would be one entire property. Such is not the fact at all. There are railroad rights of way and, I understand, individual property rights and rights of ownership between the sanitary district property and the Illinois property in the Illinois and Michigan Canal; so that it would not give contiguous property or contiguous rights in any way, and there would be no reason why it should be given to the sanitary district.

On the other hand, the question of the value of the property varies from one to two or three million dollars. We say that Congress ought not to undertake, ought not to intimate a purpose, to give to the sanitary district any such money or any such property, and that it would be a wrong, in view of the decision of the Supreme Court, and in view of the rights of this corporation, which is a creature of the legislature of the State of Illinois. It is a branch of the State of Illinois, a municipal corporation organized for the purpose of carrying out stated purposes, in one sense of the word, just as much as any municipality is, and therefore they should go to the legislature for what they want, not to Congress.

It seems a remarkable thing to us that Congress should seek to deprive the State of the property which has been given to the State of Illinois in fee, so far as the odd sections are concerned, and the absolute use of which, as to the even sections, has been given, so far as it is necessary to utilize the purpose which Congress had in mind when it granted the odd sections to the State of Illinois. There is no question of reversion. The only question at all, it seems to me, is the question of the contractual right between the Federal Government and the State of Illinois as to that provision of the act which your committee sees has been construed in a similar case by the Supreme Court of the Federal Government.

Now, of course, my own idea is--I do not know what anybody else's idea is but my own idea is that, taking this right of way 36 miles long and about 280 feet wide through the odd sections, and I guess 90, or maybe 100 feet wide in the even sections, the real practical use of that property and its value is for railroad right of way, and I apprehend that is, my idea would be-that if the State ever undertook to dispose of that and ever undertook to abandon the canal, from the very situation and from its value as such, it would dispose of it for railway purposes, and thus bring it under the Ohio case.

Mr. STEVENS. Bring it under the Ohio case?

Mr. WALKER. Yes, sir; and there is no question on the part of the State of Illinois that they will abandon the canal. It does not say that the State is going to abandon the canal.

Mr. WILSON. It implies it. Would it not, as a matter of fact, destroy that part of the canal?

Mr. WALKER. I do not know what the topography is. I would think not. A man looking over the country would apparently see that the sanitary district is higher than the level of Lake Michigan, but I think in fact it is lower. I understand there was some talk about some sewage rights. That is not in the bill, but I understood it was a sort of counter proposition or counter irritant with reference to it. As to that we say, if it is a proper thing to have, the legislature of

Illinois will grant it through its municipal government, and the Federal Government ought not, as to that, pass any act, because the passage of an act or resolution with reference to the canal immediately assumes the theory of some control by the Federal Government over the canal, which we say it has not the right to assume and should not

assume.

Mr. LOVERING. Has Mr. Walker stated what are the conditions by which certain rights were reserved to the United States?

Mr. STEVENS. Yes; he claims there were none reserved-
Mr. WALKER. Except the right of traffic.

Mr. STEVENS. As I understand the situation now, then, the only right we have to inquire might be as to the even sections-the portion that is occupied actually by the canal, that has not already been patented by the United States to somebody else, and that the portion which is now occupied by the canal unpatented under certain contingencies might possibly revert to the United States at some time, but none of these contingencies have yet occurred.

Mr. WALKER. Yes.

Mr. STEVENS. That is the situation we are in, and I wanted you to understand that, General [addressing General Davis], because the question might arise at some future time. We have no right over the odd sections, and nothing has been shown to us that the sewage district of Chicago desires a right of way over the even or odd sections.

Now, do you think, Mr. Walker, if Congress should assume to allow a license, so far as it is concerned, over any of its possible interest in that portion of the land in the odd sections, that that would affect the right of the State or the leased property of the State or the Federal Government?

Mr. WALKER. Yes; I think it would.

Mr. STEVENS. In what way?

Mr. WALKER. In the first place, you would not have any legal right to act until an act of abandonment had been passed or had. The canal commissioners could not abandon the canal any more than an individual could. The State legislature must abandon the canal if it is to be abandoned.

Mr. STEVENS. Congress can not affect the rights of a State that the State already preserves under its original grant?

Mr. WALKER. Yes; but even in the conveyance of real estate, suppose I had authority to sell you a piece of valuable property and there should turn up a deed to the General a quitclaim deed-on the record from the party who originally owned it it would immediately raise the question, What right has the General got? That is a cloud upon my title. You do not want to pay for a valuable piece of property when the General is making some claim to it, although you may say you do not see that the General has any valid claim. But still there must be something there, else the deed would not have been made by the grantor who granted to me.

Now, another thing I might suggest: It would not do any good to the sanitary district, because neither the canal commissioners nor the State of Illinois would recognize any right through that grant. Therefore they have got to come to the canal commissioners or the legislature to get the right to cross, because the statute of Illinois provides that the canal commissioners shall prevent anybody from encroaching

upon the property, and shall have them arrested and puruse a general course in the protection of the property; and therefore it would do them no good and it would injure the State in that question of title which I referred to.

Mr. STEVENS. Have you any questions, Mr. Lovering?

Mr. LOVERING. No. Have you any, General?

General DAVIS. No, sir.

Mr. LOVERING. You consider that the canal has in no sense ever been abandoned?

Mr. WALKER. No, sir. It is running now; at least it was operating before navigation closed and will resume whenever navigation opens again. It has been in continuous operation for traffic ever since it was built.

Mr. LOVERING. Has it been operated for any other purposes than traffic?

Mr. WALKER. There is water power created by this portion of the canal that is covered by this bill. That brings in an annual rental of over $10,000 a year.

Mr. LOVERING. Is it used because it is an advantage to use it or only to keep the title alive?

Mr. WALKER. It is used because it is an advantage, so far as that is concerned, and the general policy of the Government is to keep up its waterways, in order to control the railroads. We all know that a rail

road along a waterway has lower rates than elsewhere.

Mr. MCKINNEY. Is it not a fact that the operation of the canal as it is now conducted has an effect upon the railroad rates?

Mr. WALKER. Oh, yes. The experience, as I am informed by the superintendent, is that when navigation closes the railroad rates rise about 25 per cent, and when navigation opens again they fall about 25 per cent.

Mr. STEVENS. General Davis has a question to propound.

General DAVIS. Do you regard the canal as part of the navigable waters of the United States?

Mr. WALKER. No; it is not a part of the navigable waters over which the Federal Government has control. It is an artificial channel entirely. I might explain a little further: As a matter of fact, at Copperas Creek, the Illinois legislature, in order to improve the Illinois River, has built two dams, one at Copperas Creek and one at Henry, and the legislature gave to the State of Illinois the control of the Illinois River for navigation purposes to a point 1,000 feet above the dam. My recollection is that the Federal Government made a grant in aid of the construction of the dam at Copperas Creek. Those dams were built by the State in aid of it, to enable the canal traffic to get down there and through the Illinois River, because it filled up by accretion, and part of it has been a joint work by the Government and by the State of Illinois.

General DAVIS. Of course there are a great many decisions on the subject of what constitutes a part of the navigable waters of the United States. If it were found that the authorities bore pretty strongly that way, that it was a part of the navigable waters of the United States, then the crossing of the sewer, I believe, would be putting an obstruction to it?

Mr. WALKER. Yes.