People ex rel. Deneen v. Economy Light & Power Co. (241 Ill. 290, 1909)

Mr. Justice Vickers

delivered the opinion of the court:

This is a direct appeal to this court from a decree of the circuit court of Gruridy county dismissing for want of equity an information in the nature of a bill in equity filed by the Attorney General on behalf of the People, on the relation of Charles S. Deneen, Governor of the State of Illinois, against the Economy Light and Power Company, to restrain said company from erecting a tiam across the Desplaines river and to cause the removal of that portion of the dam already constructed, and to prevent other injuries to the property of the State which it is alleged will result from the construction and maintenance of said dam.

Appellant bases its claim to relief on three propositions, as follows: (i) That the State of Illinois owns the bed of the river at the point where it is proposed to build said dam; (2) that the Desplaines river is a navigable stream, and that the proposed dam would constitute an obstruction to navigation; (3) that certain contracts executed by the commissioners of the Illinois and Michigan canal, under which appellee claims certain rights in connection with the construction of said dam, are void, and that no rights were acquired by or can be asserted under said contracts.

It is conceded by appellee that if the State of Illinois owns the fee in the bed of the Desplaines river at the point where the proposed dam is to be located, or if said river is a navigable stream at that point, appellee has no right to build the dam. Whether the same result would follow if the instruments referred to in the third proposition were held invalid is one of the controverted questions between the parties. The questions involved in each of appellant’s propositions arise out of facts which have but little, if any, bearing on the other contentions. It will therefore conduce to a clearer understanding to examine these propositions separately, in the light of the facts applicable to each.

The title ob the State TO bed ob the river.— The validity of appellant’s claim of title to the bed of the river at the point where the dam is located depends upon the construction of certain statutes passed by the legislature in relation to the Illinois and Michigan canal. The consideration of the legal questions involved in appellant’s claim of title to the bed of the river will be facilitated and the ultimate result clarified by a brief review of the history of the Illinois and Michigan canal prior to the passage of the particulár statute a construction of which is involved in this question.

The possibility of connecting the waters of Lake Michigan with the Illinois river by means of an artificial channel, thence through the Mississippi river to the Gulf of Mexico, thus establishing a continuous waterway for commerce from the lakes on the north to the gulf on the south, was at a very early time appreciated and its consummation cherished by the early traders and explorers as a work of first importance, both from a commercial and military standpoint. The portage between the south branch of the Chicag'o river and the Desplaines was only a few miles, and it was confidently believed that these two streams could be connected by an artificial channel at a cost that would be trifling in comparison with the commercial benefits that were expected to result. Experience has shown, however, that the cost of the canal, first and last, has been nearly twenty time's the original estimate and that its practical benefits have fallen much below its promoters’ expéctations. The subject of constructing the canal was first' brought to the attention of the'Federal Congress in 1801 by Albert" Gallatin, in a report recommending its construction by the general government. In 1816 a government survey was made of the proposed route, and after Illinois was admitted into the Union the attention of the new State was turned to the proposed connecting waterway. In 1822 Congress passed an act authorizing the State of Illinois to survey and mark through the public lands of the United States the route of a canal connecting the Illinois river with the southern bend of Lake Michigan, and vesting in the State the perpetual use of a strip of land ninety feet wide on each side of said canal for canal purposes, subject to certain conditions which have either been complied with or waived by subsequent acts and therefore need not be stated. (Stead’s Canal Laws, p. 1.)

During an extra session of the Illinois legislature, in 1826, a memorial was addressed to the Congress of the United States in which the great advantages, both to the nation and the State, of the proposed canal were eloquently set forth and the liberality of Congress was appealed to to make a grant of public lands to aid the State “to commence and complete this great and useful work.” In this memorial it was stated that “your memorialists have caused the route to be explored and estimates to be made of the probable expense of the work, from which it appears that the cost of constructing the canal will not be less than $600,000 and may possibly amount to $700,000.” The effect of this memorial was to attract the attention and awaken the generous patronage of the Federal Congress, and on March 2, 1827, an act was passed granting to the State of Illinois, for the purposes stated, a quantity of land equal to one-half of five sections in width on each side of said canal, from one end thereof to the other. The lands thus granted to the State, when selected and set apart, were found to contain approximately 300,000 acres, which were subject to the disposal of the State legislature “for the purposes aforesaid and no other.” In 1829 the legislature passed an act authorizing the appointment of a board of canal commissioners to explore, examine, fix and determine the route of the canal, and dispose, by sale, of the lands and lots and commence the work. Under this act Gov. Edwards appointed Charles Dunn, Dr. Gersham Jayne and Edmond Roberts as commissioners. For lack of funds the commissioners were abiete accomplish but little. February 15, 1831, an amendatory act was passed. Under the provisions of these two acts the board of commissioners laid out the towns of Chicago and Ottawa and caused a new survey and estimate to be made by engineer Bucklin, whose estimate showed that the canal, instead of costing $600,000 or $700,000, as the legislature had stated in its memorial, would cost $4,043,386.50,—and this estimate proved to be too low by half. In view of the unexpected increase in the cost of the canal the plan of substituting a railroad for the canal was favorably considered for a time, and with this in view a survey and estimate for the railroad were made, a law passed abolishing the office of canal commissioners and the consent of the Federal government to use the land granted in constructing a railroad instead of a canal was obtained.

In 1835 the canal proposition was again taken up and an act passed authorizing the Governor to negotiate a loan, not exceeding $500,000, solely on the pledge of the canal lands and tolls. Certificates were to be issued, called “Illinois and Michigan canal stock,” which were to be sold at not less than face value. This effort to raise money proved a failure. Fx-Goy. Coles, who then resided at Philadelphia, was appointed agent of the State to negotiate the loan, and in April, 1835, he wrote that capitalists were unwilling to take the stock certificates because they were not based upon the faith of the State. To obviate the objections thus raised the act of January 9, 1836, was passed, which repealed the act of 1835 and authorized the same loan of $500,000 on the credit of the State, which was irrevocably pledged for the payment of both principal and interest. The money thus borrowed, together with the proceeds of canal lands and lots, constituted a fund with which the actual construction of the canal was commenced, and on July 4, 1836, ground was first broken for the canal.

Two general plans of construction had been estimated and recommended. One, which is described as the “deep-cut” plan, provided for a channel six feet below the water level of Lake Michigan, and contemplated the maintenance of a channel sixty feet wide at the top and forty feet at the bottom and a depth of six feet, supplied by the direct flowage of water from Lake Michigan. The cost of the canal under the deep-cut plan was estimated at more than $10,000,000. This excess in cost over the' available funds led to the consideration and adoption of the “shallow-cut” plan, which provided for a channel twelve feet above the water level of Lake Michigan, and contemplated to supply the channel with water by feeders from the Calumet or Desplaines river. Up to the first of January, 1839, the gross expenditures on the canal derived from loans and the sale of lands and lots amounted to $1,400,000. All of the canal, except about twenty-three miles between Dresden and Marseilles, was under contract, and the jobs let were roughly estimated at $7,500,000. In this situation the legislature directed the commissioners to borrow $300,000 and the Governor to make a further loan by the sale of $4,000,000 of State bonds. These bonds were disposed of to irresponsible parties, some of whom paid a portion, others practically nothing, so that the State lost several hundred thousand dollars in the sale of these bonds.

On February 26, 1839, the General Assembly passed an act which is of special importance in this connection, since it is upon this act appellant rests its claim of title to the bed of the" river at the point where the proposed dam is located. Section 1 of the act of 1839 provided that the sales of canal lands and town lots heretofore authorized by law shall be regulated as follows: Under the title of “conditions of sales” it was provided:“In all sales of lands and lots under the provisions of this act the following conditions shall be annexed and shall compose part of the contract.” By condition 9 it is provided as follows: “That no stream of water passing through the canal lands shall pass by the sale so -as to deprive the State from the use of such water, if necessary to supply the canal, without charge for the same.” Condition u is as follows: “Lands situated upon streams which have been meandered by the surveys of public lands of the United States shall be considered as bounded by the lines of those surveys and not by the stream.” At the time this act was passed the State of Illinois owned the land on both sides of the Desplaines river where the dam in question is located. If the title to this land had passed out of the State under the act of 1839 there would be much force in appellant’s contention that the riparian owners would only obtain title to that portion of land within the meander lines, the effect of which would be to reserve the title to the bed of the stream in all odd numbered, sections bordering upon either side of the river in the State, and this, as we understand, is appellant’s position.

The proposed dam is located in the south-east quarter of section 25, township 34, range 8, east of the third principal meridian, in Grundy count}\ Section 25 was one of the sections embraced in the government grant of 1827. Both parties concede that the title to the bed'of the stream passed to the State under the government grant. The point at issue between the parties is whether such title passed out of the State when it sold said south-east quarter of section 25, or whether the grantee only took title to the meander line, as is provided by condition 11 in the act of 1839.

Returning again to the further history of the canal, we find that, owing to the panic of 1837 an-d the general shrinkage of values, the State was seriously embarrassed and its credit impaired. At this time $1,000,000 of State bonds bearing six per cent interest were sold in London for eighty-five cents on the dollar. In 1841 the State defaulted in the payment of interest on her public debt and her financial embarrassment became alarming. The situation was greatly aggravated by the collapse of the State banks, in 1842. The State refused to take State bank paper for taxes, and the tax-payers did not have coin or the means of procuring it. There was a general stagnation in business and values rapidly declined. The State at that time owed $14,000,000, on which it was unable to pay interest. Repudiation was openly advocated, and for a time “the fair name of Illinois became freely associated with dishonor.” There was a crisis in the affairs of the State as well as in the affairs of the projected canal. Strange as it may seem, the Illinois and Michigan canal, in aid of which the credit o'f the State had been pulled down, was now confidently looked to as the only means of lifting it up. It was argued the advantages and facilities to be afforded by it would cause immigrants and wealth to pour into the State. To meet the dire situation and to insure the completion of the canal, Justin Butterfield, of Chicago, first suggested the idea of inducing the holders of canal bonds to advance the money for its completion upon the pledgee of the canal, its lands and revenues to the bondholders in the nature of a first mortgage, and Gov. Ford recommended the adoption of this plan in his'first message to the General Assembly. Accordingly, on February 21, 1843-, the legislature passed an act authorizing" the Governor to negotiate a loan of $1,600,-000 solely on the credit and pledge of the canal property, its tolls, revenues and lands, for a term of six years, bearing six per cent interest. Said act provided that the holders of canal bonds and other evidences of indebtedness of the State, for the purpose of aiding in the construction of the canal, should be first entitled to subscribe for said loan in proportion to the amount held by the several creditors. It was provided in said act that a board of canal trustees should be appointed, to be known and designated as the “Board of Trustees of Illinois and Michigan' Canal,” one of whom should be appointed by the Governor and the other two elected or appointed by the subscribers to the said loan. Section 10 of said act provided that for the purpose of placing in the hands of the trustees full and ample security for the payment of said loan, and the interest thereon, and for the purpose of securing a preference in the payment of the debts held by the persons who would subscribe for the new loan, the “State does hereby irrevocably. grant to the said board of trustees of the Illinois and Michigan canal the bed of the said Illinois and Michigan canal and the land over which the same passes, including its banks, margins, tow-paths, feeders, basins, right of way, lodes, dams, water power, structures, stone excavated and stone material quarried, purchased, procured or collected for its construction, and all the property, right, title and interest of the State of, in and to the said- canal, with all the hereditaments and appurtenances thereunto belonging or in anywise appertaining, and also all the remaining lands and lots belonging to the said canal then or which hereafter may be given, granted or donated by the general government to the State to aid in the construction of said canal, and the buildings and erections belonging to the State thereon situated; the said board of trustees to have, hold, possess and enjoy the same as fully and absolutely, in all respects, as the State now can or hereafter could do, for the uses, purposes and trusts hereinafter mentioned.” The only property excepted from this act were “all canal lands and lots heretofore sold by the board of commissioners upon which moneys are now due or may hereafter become due,” which were reserved to the State. After considerable delay and difficulty the creditors of the State finally advanced $1,600,000 on the faith of the act of 1843, and the final completion of the canal was at last an assured fact.

On June 26, 1845, Thomas Ford, as Governor of the State of Illinois, executed a deed to William H. Swift, David Leavitt and Jacob Fry, trustees of the Illinois and Michigan canal, under authority vested in him by section 21 of the act of 1843, conveying to said trustees, in the language of said act, all of the canal property which the State then owned, including “the lands and lots remaining unsold, donated by the. United States to the State of Illinois to aid in the completion of the said canal, * * * to "have, hold and enjoy the said property, with the right of controlling, managing, selling and disposing of the same.” There is'no restriction in the act itself, or in the deed made by the Governor under it, which lends support to appellant’s claim that the bed of the river was reserved to the State.

On October 22, i860, the canal trustees sold and conveyed to Charles E. Boyer, for a consideration of $1556, 196.61 acres of land in section 25, township 34, range 8, in Grundy county, and by mesne conveyances the title of said tract is now vested in appellee. The proposed dam is located wholly on this tract. Conveyance to Boyer was made by the canal trustees “under authority vested in said board by an act of the legislature of the State of Illinois of February 21, 1843, entitled ‘An act to provide for the completion of the Illinois and Michigan canal and for the payment of the canal debt,’ ” which authority is recited in the face of the deed itself. The granting clause of said deed is as follows: “In consideration thereof and the premises, said board pf ’ trustees of the Illinois and Michigan canal has granted, bargained and sold, and by these presents do grant, bargain and sell, to the said Charles E. Boyer, the said tract of land above designated and described.” The following is the habendum clause of the said deed: “To have and to hold the same, together with the rights, privileges, immunities and appurtenances thereunto belonging, .unto-the said Charles E. Boyer, his heirs and assigns forever.” There are no exceptions, limitations, reservations or conditions in this deed. If the title to the bed of the stream did not pass-by this deed it is because the trustees had no power to convey it.

Under the government grant of 1827 the State obtained title to all of section 25, including the bed of the river through that section. By the act of 1843, and the deed of the Governor made thereunder, the title to all of the unsold portion of said section passed to the trustees of the Illinois and Michigan canal, and by their deed the title to the southeast quarter of said section on which the dam is located was vested,in Boyer, and his title, as we have seen, now rests in the appellee. Under well established rules of law these several conveyances carried the title to the bed of the stream, in the absence of any language clearly denoting an intention of stopping at the edge of the river. (Braxon v. Bressler, 64 Ill. 488; Davenport Bridge Railway Co. v. Johnson, 188 id. 472.) There is no difference in the application of this rule between navigable water-courses and those which are not navigable. In grants upon navigable waters above tide waters the riparian owner taires title to the thread of the stream, subject to an easement in the public for the purpose of navigation, while as to the waters not navigable the title to the bed of the stream passes absolutely, free from any burdens in favor of the public. (Washington Ice Co. v. Shortall, 101 Ill. 46.) Where a riparian proprietor owns the land on both sides of a river, he is the owner of the whole of the bed of the stream to the extent of the length of his lands upon it. (Angell on Water-courses, sec. 5.) This is the rule of the common law, which has been adopted in this State and applied by this court to the Mississippi river in Middleton v. Pritchard, 3 Scam. 510; to the Rock river in Braxon v. Bressler, supra; to the Chicago river in City of Chicago v. McGinn, 51 Ill. 266; to the Calumet river in Washington Ice Co. v. Shortall, supra; and to the Desplaines river in Board of Trustees v. Haven, 5 Gilm. 548, and Druley v. Adam, 102 Ill. 177. The general rule is, that when riparian estates are conveyed the owner may reserve the land under water; but the general presumption is that the purchaser’s title extends as far as the grantor owns, in both tidal and fresh waters. (Gould on Waters, sec. 195, and cases there cited.) There is nothing in any of the conveyances concerning the south-east quarter of section 25 to indicate an intention to reserve that portion of said land in the bed. of the Desplaines river. On the contrary, the language of the act of 1843, and the deed of the Governor made in pursuance thereof, is so broad and comprehensive as to preclude the State from asserting title to the bed of this stream. Anything found in the act of 1839 manifesting an intention of the State at that time to limit sales of canal lands within the meander lines of the Desplaines river must be held inconsistent with the comprehensive language of the act of 1843 and superseded thereby. We do not, however, mean to be understood as holding that the act of 1839 was superseded in its entirety by the act of 1843, but we do hold that as to sales made under the act of 1843 procure money with which to pay debts created thereunder, such sales were not affected by the limitations in the act of 1839. After the trust created by the act of 1843 was executed and the debts for which the canal properties were pledged under that act were paid and the canal properties turned back to the State in accordance with section 9 of the act of 1843, any subsequent sales of canal lands would not be controlled by the act of 1843. The record shows that at the time the lands on which the dam in question is located were sold the debt was not fully paid, and the deed executed by the canal trustees shows by its recitals that it was made under the power conferred by the act of 1843. Deeds made by the canal trustees under the act of 1843 lands bordering on the Desplaines river conveyed the title to the purchaser» to the thread of the stream.

Appellant also contends that since the undisputed evidence shows that the Desplaines river was meandered by the government surveyors, such meander line is the boundary of riparian proprietors. A meander line is not a boundary line, but is designed to point out the sinuosities of the bank or shore and a means of ascertaining the quantity of land in the fraction which is to be paid for by the purchaser. (Whitaker v. McBride, 197 U. S. 510; Albany Railroad Bridge Co. v. People, 197 Ill. 199.) An exception to this general rule seems to be recognized where the meander line is run and monuments are erected, but in the case at bar the evidence fails to show that any monuments were erected on the meander line, hence this case falls within the general rule and not within the' exception. The State of Illinois is not the owner of the bed of the Desplaines river at the place where the proposed dam is located.

The navigability oe the Desplaines river.—The question which has received the most exhaustive treatment by counsel relates to the navigability of the Desplaines river. The evidence introduced upon this question fills more than one thousand printed pages in the abstract, and to its discussion counsel have devoted several hundred pages of their briefs. If the dismissal of the bill by the court below had been without prejudice to the right of the State to renew its application for an injunction, such action on the part of the court below might be sustained because of the utter failure of .appellant to prove that the construction of the proposed dam will be an obstruction to the present navigation of the river. There is no proof that the river is now being used as a public highway for commerce. On the contrary, the evidence not only shows that the river is not being so used, but it shows affirmatively that, owing to the presence of numerous other dams and some fifty or more bridges which span the river, it would be impossible, under existing conditions, to navigate the same. There being,at present no navigation whatever upon the river, obviously the dam in question cannot be said to be an obstruction to navigation that has no existence in fact. But the decree of the court below dismissed the bill for want of equity, without reserving any right to the State to renew this, application for relief on the ground that the dam in question was being erected in a navigable stream, and rendered a final decree based on the finding that the river is not navigable, settling this question not only for the present but for all time to come, so far, at least, as the parties bound by this decree are concerned. We regard the question, therefore, as properly presented for our consideration on its merits.

The Desplaines river has its source in the south-eastern part of Wisconsin, and flows in a southerly direction, almost parallel with the western shore of Lake Michigan, through the counties of Lake and Cook, in this State, until it reaches a point nearly opposite the western end of Forty-seventh street, in the city of Chicago, where the river curves and takes a south-westerly course, passing the cities of Lockport and Joliet, and thence to a point in Grundy county, where it unites with the Kankakee river, thus forming the Illinois river. The entire length of the river is something over one hundred miles, but in determining the question of its navigability we will have no occasion to consider that portion of the river above Riverside, since it is not contended that that portion of the river is or ever has been navigable. The maintenance of the charge in the bill that the river is a navigable stream does not impose on appellant the burden of showing that the stream was navigable in its entirety, (Schulte v. Warren, 218 Ill. 108,) or that the navigable portion of such stream was open for use all the year round. (Pierpont v. Lovelace, 72 N. Y. 211; Burke Co. v. Catawba Lumber Co. 116 N. C. 731.) Appellant contends, and appellee seems to concede, that if it is established that the Desplaines river is navigable from Lockport to its mouth the decree of the circuit court should be reversed, even though the court might be of the opinion that the river was not navigable at any other place. We have no doubt of the correctness of this proposition as an abstract statement of the law. We will therefore confine our consideration of this question primarily to that stretch of the river, about nineteen and one-half miles in length, extending from Lockport to the mouth of the river.

The evidence shows that there is quite a fall in certain portions of the river between these two points. Prom Lockport to Joliet there is a fall of thirty feet in a distance of four and one-half miles, and from dam No. i in Joliet to the head of Patterson’s island there is a fall of twenty-one feet in three and one-half miles. Then there is a stretch of about five miles, known as Lake Joliet, in which there is practically no fall. Below the foot of Lake Joliet the river divides and forms what is called Treat’s island. Going down the river the main channel is on the left of the island, and there is a fall of nine and one-half feet in one mile. After passing Treat’s island the river is again united and forms a pool or lake about one mile long in which there is very little fall. Going down the river the next stretch, at a point called Smith’s bridge there is a fall of about two and seven-tenths feet in one mile. Passing the rapids at Smith’s bridge another pool is encountered, called Lake DuPage, where there is a fall of two feet in three and one-half miles. In the last half mile above the mouth of the river there is a fall of three and' one-half feet. It is across the lower end of this stretch that the proposed dam is located. The bottom of the river from Lockport to the dam in question, with the exception of that portion under Lake Joliet, is covered with a large number of bowlders. The bottom of Lake Joliet is soft. The evidence shows that these bowlders are of various sizes, some of them between two and three feet in diameter. Some of them are covered entirely with water, while others project slightly above the surface of the water. It is also shown that in going down the river in a skiff or any kind of boat there is great danger of coming in contact with these bowlders. The current is so strong that it is not possible to row a boat up stream over these rapids. In addition to the natural barriers already spoken of, the evidence shows that the stream is tortuous and the channel very narrow at places. The slopes in the river already given do not represent the greatest fall that can be found in this stretch. The evidence shows that there is near the head of Treat’s island a fall of seventeen feet to the mile, and near the foot the slope is eighteen feet to the mile, and in the right-hand channel opposite Treat’s island there is a space of five hundred feet in which the fall is fifty feet to the mile, and if shorter distances are taken even greater slopes than these will be found to exist. At one place near the mouth of the river there is a fall for three or four hundred feet of twenty feet to the mile. Between the mouth of the river and Lockport there are thirteen bridges across the river, none of which have draws to permit the passage of boats, if such passage were otherwise possible. Two of these bridges are railroad bridges, and all of them are permanent steel structures. Above Lock-port there are some forty other bridges across the stream, constructed for steam or electric railroads and for wagons. The width of the river varies greatly. At some places it is not more than sixty feet wide, while in the widest place in Lake Joliet it is over one thousand feet wide. The evidence shows that the depth of water in the river varies considerably in different places and also at different times in the same places. A chart showing the gauge readings at Riverside, a point twenty-eight miles above Joliet, shows the number of days in each year during which the river was dry at this point, which indicates that there were from twenty-four days in 1890 to two hundred and thirteen days in 1895 during which the river was dry at this point. This chart also shows the number of days during each of these years when there was a discharge of less than six inches of water at Riverside, the result of which is, totaling the number of dry days and the days showing less than a six-inch discharge, that there were from one hundred and twenty days in 1888 to three hundred days in 1901 when the river was either dry or showed less than six inches of water at Riverside. The depth of the river during the balance of the year is not shown on this chart. These gauge readings also show that the dry or low periods did not occur during the same time in each year. Every month in the year is represented several times during the years covered by this chart, from which the conclusion is drawn that there were no regular periods when a given stage of water could be safely expected.

We refer to the readings on the Riverside gauge, not because of their bearing on the question of navigability at that point, but for the reason that they tend to show the natural volume of water in the channel above the points where the volume is increased by the additions made by the Illinois and Michigan canal and the drainage channel, which added from 250,000 to 400,000 cubic feet of water per minute to the river below the point of connection.

Appellant strongly contends that the rights of appellee as riparian owner are to be determined with reference to the conditions that exist since the deepening of the Illinois and Michigan canal and the construction of the sanitary district channel, by means of which the volume of water in the Desplaines river has been greatly increased. It is argued that the navigability of the river is to be determined with reference to the changed condition and not as the stream existed in a state of nature. Appellant’s position, as we understand it, is this: Assuming the stream to be unnavigable in its natural condition, the State may by artificial means so change the stream as to make it navigable and thus destroy the vested property rights of riparian owners upon the said stream. This position is untenable. The property rights of riparian owners in the bed of an unnavigable stream are as sacred as any other property right, and such owners cannot be deprived of those rights, without compensation, by artificial additions to the waters of the stream whereby it is rendered navigable. To hold that the State can by artificial means make a stream navigable which in a state of nature was not navigable, and thereby deprive riparian owners of their property rights in the bed of the stream, is simply to hold that private property may be taken or damaged for public use without compensation.

The contention of appellant upon this question is contrary to the authorities. In Thunder Bay River Booming Co. v. Speechly, 31 Mich. 36, the court, speaking by Judge Cooley, upon this question said: “No such inference is warranted by the decisions. The highway they recognized is one sui generis and in which the public rights spring from peculiar facts. It is a public highway by nature, but one which is such only periodically and while the natural condition permits of a public use. * * * But at periods when there is no highway at all there is no ground for asserting a right to create a highway by means which appropriate or destroy private rights. The doctrine that this may be done without compensation to parties injured is at war with all our ideas of property and of constitutional rights. The most that can be said of this stream during the seasons of low water is, that it is capable of being made occasionally navigable by appropriating for the purpose the water to the natural flow of which the riparian proprietors are entitled. It is highly probable, in view of the large interests which are concerned in the floatage, that the general public good would be subserved by so doing, but this fact can have no bearing upon the legal question. It is often the case that the public good would be subserved by forcing a public way through private possessions, but it neither should be nor can be done, under any circumstances, without observing the only condition on which it can be pennitted in constitutional government, namely, that the private proprietor be compensated for the value which he surrenders to the public.”

In Druley v. Adam, supra, this court, in speaking of the added volume of water to which the proprietors of the Haven dam were entitled by reason of the deep cut in the Illinois and Michigan canal, said (p. 206) : “It may be quite true that appellee has now more water than he had before the deepening of the Summit level, and that contrasting his condition now with his condition then he is not injured, but he is entitled, by virtue of his position as lower proprietor, as has been shown, to the benefit of all improvements whereby the flow of the water in the river is increased, and this property right cannot be taken from him without his consent. The right which the lower riparian proprietor has to' avail himself of all benefits resulting from improvements by upper riparian proprietors is obviously a property right growing out of the nature and 'necessities of flowing water and his position upon the stream, and of which, therefore, he can no more be deprived, without his consent, than of any other property right.”

The rule that the navigability of the stream is to be determined with reference to its natural condition is supported by numerous other authorities: Hall v. Lacy, 3 Grant’s Cas. 264; Carter v. Thurston, 58 N. H. 104; Lewis v. Coffee County, 77 Ala. 190; Stratton v. Currier, 81 Me. 497; United States v. Rio Grande Dam and Irrigation Co. 174 U. S. 690; In re Ball, 10 Wall. 557; In re Montello, 20 id. 431.

We are aware that there is a line of cases which at first blush may appear to be in conflict with the rule laid down in the authorities above cited. While the rule is well founded, both upon reason and authority, that a stream not navigable in its natural condition cannot be made so by artificial means, so ••as to deprive riparian owners of vested rights without compensation, it is equally well established that a stream which is, in fact, navigable in its natural state may be improved for the purpose of enlarging its usefulness, and the public will have a right to the enjoyment of the easement in its enlarg-ed condition. It is to this principle that the cases of Schulte v. Warren, supra, and Mendota Club v. Anderson, 101 Wis. 479, and other like cases relied on by appellant, are to be referred. There is nothing in this line of decisions that is in conflict with the rule stated above or the authorities cited in support thereof. In view of the constitutional inhibition against the taking or damaging- of private property for public use without compensation, the rule must, of necessity, be that the State cannot directly by its own act or indirectly through the act of any of its agents change an unnavigable stream to one that is navigable, and thereby destroy or damage the private property rights of adjacent owners, without making compensation.. The State can no more establish a waterway over private property without compensating the owners than it can build a railroad or a public highway over farm lands without paying for the right of way and all damages to property not taken. The same constitutional provision that protects property rights in real estate above the water line of an unnavigable stream extends to and protects that which is below the water, guaranteeing the same full measure of enjoyment to the owner in the one case as well as in the other. This view is supported by the decision of this court in City of Chicago v. Laughlin, 49 Ill. 172, where, on page 177 of the opinion, the following language is used: “It would be monstrous that the city should, at pleasure, make changes in this stream so as to render buildings on the wharves an obstruction and then require their removal without compensation. Such power would be more vast and absolute than can be exercised by the State itself. The city government is created and has its powers delegated for the better protection of individual rights, and not that they may be disregarded or destroyed.”

The widening or deepening of navigable streams, or the improvement of those which are not navigable so that they may become so, or the construction or improvement of harbors, are works of a public nature, conferring benefits on the public at large. Such improvements may be made and paid for out of the general treasury, from funds raised by taxation. The Supreme Court of the United States, in County of Mobile v. Kimball, 102 U. S. 691, decided that the State might authorize a county to improve a public harbor, to be paid for by bonds which were ultimately to be paid by general taxation upon property of the county. (See Page & Jones on Taxation by Assessment, sec. 360.) But under the law of this State as laid down in City of Chicago v. Law, 144 Ill. 569, a navigable stream cannot be improved and the cost thereof levied by a special assessment upon the real estate fronting upon such water-course. In that case an attempt was made by the city of Chicago to improve the south branch of the Chicago river and to charge the cost of such improvement by a special assessment against the lands and lots fronting on the same, and this court, in denying the power of the State to make such improvement by a special assessment, on pages 576 and 577, said: “The river is a navigable stream of the United States. It connects with Lake Michigan, and by means of the lake with the country at large. The Federal government has assumed jurisdiction over it, and expended money, as appears from the admitted facts, for its improvement. It is one of the channels over which the commerce of the country passes, and this improvement was instituted for the purpose of increasing its power as one of the navigable streams of the country. It was undertaken in the interest of the commerce of the country. Was it ever intended that a few land owners bordering on one of the navigable streams of the country should be compelled to pay for an entire improvement in a river, the object of which is to benefit the public at large rather than the locality where the improvement is made? Here the contemplated improvement was one to widen the river in order that boats and vessels might pass up and down the river with greater facility,—one calculated to increase the navigable qualities of the river,—an enterprise wholly public in its nature. If one of the cities located on the banks of the Mississippi river should undertake to remove obstructions from that navigable stream of water to enable boats to run up and down the river with greater facility and pay for the improvement by special assessment on property fronting on the river, it would not, we apprehend, be contended that an assessment of that character could be sustained under the provisions of the statute above cited; and yet there is no substantial difference between the supposed case and the one under consideration. The proposed improvement has none of the elements of a local improvement, such as incorporated towns and cities have been in the habit of making by special assessment.”

If riparian owners cannot be specially assessed to pay for the improvement of a navigable stream, a fortiori they cannot be required to surrender valuable property rights, without compensation, in furtherance of a scheme to improve one that is not navigable in its natural condition. Much time and labor have been spent by appellant in presenting reports of surveys, maps and engineering schemes for the improvement of this river, which, if carried out, would render the river navigable. But all this is not pertinent to the issue. The question is whether the river was navigable in a state of nature, and not whether it can be made so by artificial means.

It is also contended that the Sanitary District act declared this river to be navigable. This contention is based on a sentence in section 24 of said act, as follows: “When such channel shall be completed, and the water turned therein, to the amount of 300,000 cubic feet of water per minute, the same is hereby declared a navigable stream.” Appellant’s contention, under this statute, is thus stated in its brief: “The same means that the water flowing in that channel is a navigable stream. The water so turned in was navigable in fact, and it. does not lose its navigability in passing out of the artificial channel into the channel of the Desplaines river. The water is just as navigable one-half mile south-west of Joliet as it is one-half mile north-east of Joliet.” The argument is based upon an erroneous construction of the word “same.” That term refers to the channel of the sanitary district and has no reference to the water after it leaves the channel.

But even if the legislature had declared, in unequivocal language, that the Desplaines river was navigable, as it did by the act of 1907, such declaration could not have the effect of depriving appellee of vested rights as riparian proprietor, if such rig-hts exist. The general doctrine upon this question is well expressed by the Supreme Court of Kentucky in Murray v. Preston, 106 Ky. 561, (90 Am. St. Rep. 232,) as follows: “The first question is, what is the effect of the act of the legislature declaring this creek a navigable stream ? The constitution of the State forbids private property being taken for public use without just compensation being previously made. If the creek was not a navigable stream when this act was passed it was the private property of the owners of the adjoining lands. If it was the private property of appellant within the boundary of his land, the legislature could not divest him of his rights by simply calling it a navigable stream when it was not one in fact. The rule on this subject is thus stated in Cooley on Constitutional Limitations (side p. 591) : ‘The question what is a navigable stream would seem’ to be a mixed question of law and fact, and though it is said that the legislature of the State may determine whether a stream shall be considered a public highway or not, yet if, in fact,' it is not one the legislature cannot make it so by simple declaration, since if it is private property the legislature cannot appropriate it to a public use without providing for compensation.’ ” And the same doctrine is announced in the following cases: Walker v. Board of Public Works, 16 Ohio, 540; Morgan v. King, 35 N. Y. 454; Shenango Bridge Co. v. Paige, 83 id. 178; Martin v. People, 5 Blackb. 35; Olive v. State, 86 Ala. 88; People v. River Mill and Lumber Co. 107 Cal. 221; Yates v. Milwaukee, 10 Wall. 497; Watkins v. Dorris, 54 L. R. A. 199.

None of the legislative acts relied upon by the appellant were passed for the primary purpose of promoting deep water navigation from the lakes to the gulf by means of improving the channel of the Desplaines river. The various acts passed in the interest of the Illinois and Michigan canal, as well as the Sanitary District act, did not include any general scheme for the improvement of the Desplaines river. Up to this time no general plan for the deep waterway has been adopted, either by the State or the nation. Whether such enterprise will ever be attempted by either, separately or by the joint action of both, and, if such enterprise is entered upon, whether the plan will embrace the use of the old Illinois and Michigan canal or the sanitary district channel in connection with a part of the Chicago and Desplaines rivers or whether some new and entirely different channel will be adopted, are all legislative questions, with which the courts have no concern. Figuratively speaking, the waters have been much troubled on this subject, but so far neither the nation nor the State has legislated how they shall flow. What the future will see accomplished along these lines no one can know. It may be that when that future is unfolded it will bring a realization of the hopes of the most optimistic, and that the appearance of sea-going vessels plowing through the prairies of Illinois, laden with the people and products from the uttermost parts of the earth, will be as common as the now almost forgotten' “prairie schooners” of 1849 were in those days. But if this transition is to occur,—if the powerful hands of the government are to lay hold of this gigantic enterprise,— due regard must be had to the sacred rights of every citizen, however humble and insignificant those rights may seem in contrast with the great public consummation.

What is a navigable stream is a question to which different courts have given different answers. In some of the States, where the lumber business was of great importance and the floating of saw logs an essential branch thereof, a stream that had the capacity for floating logs, though only for short periods in times of freshets, was held to be navigable. (Brown v. Chadbourne, 31 Me. 9; Moore v. Sanborne, 2 Mich. 519.) But these cases, and the reasons upon which they rest, were examined by this court in Hubbard v. Bell, 54 Ill. 110, and their authority expressly rejected. In discussing that question this court, on page 122, used the following language: “It is not enough that a stream is capable, during a period, in the aggregate, of from two to four weeks in the year, when it is swollen by the spring and autumn freshets, of carrying down its rapid course whatever may have been thrown upon- its angry waters, to be borne at random over every impediment in the shape of dams or bridges which the hand of man has erected. To call such a stream navigable in any sense is a palpable misapplication of the term.” The doctrine of this case has been re-affirmed by this court in Schulte v. Warren, supra, and on page 119 of the latter case this court approved the following definition of a navigable stream by Lord Hale in his treatise De jure marts: “A stream, to be navigable, must furnish ‘a common passage for the king’s people,’ must be ‘of common or public use for the carriage of boats and lighters,’ must be capable of bearing up and floating vessels for the transportation of property conducted by the agency of man.” And the same definition is also approved in Joliet and Chicago Railroad Co. v. Healy, 94 Ill. 416. In the Schulte case it was further said (p. 1x9) : “A stream is navigable, in fact, only where it affords a channel for useful commerce and of practical utility to the public as such. The fact that there is water enough in places for row boats or small launches answering practically the same purpose, or that hunters and fishermen pass over the water with boats ordinarily used for that purpose, does not render the waters navigable.”

A stream, to be navigable, must in its ordinary, natural condition furnish a highway over which commerce is or may be carried on in the customary modes in which such commerce is conducted by water. (Gould on Waters, sec. 34, and cases there cited.) Whether the stream in question is navigable is a question of fact, the burden of proving which rests upon the party asserting it. (Ligare v. Chicago, Madison and Northern Railroad Co. 166 Ill. 249.) To maintain this issue appellant with commendable industry has assembled every fact which appears to have even a remote bearing on the question and incorporated the evidence in the record. Research into historical data has been made and the result presented to the court. This class of evidence begins with the account of the first voyage of Marquette and Joliet, in 1673-74, as related by John Gilmary Shea in “Shea’s Early Voyages up and down the Mississippi,” published in 1700 by Burrow Bros. Excerpts from this publication were introduced, also copies of maps made by Marquette and Joliet showing the principal features of the country explored by them. Section 10 from a chapter from this book, entitled “The first voyage made by Father Marquette toward New Mexico, and how the idea thereof was conceived,” reads as follows:

“Return of the Father and of the French.—After a month’s navigation, while descending the Mississippi from the 42b to the 34th degree and beyond, and after preaching the gospel as well as I could to the nations that I met, we started on the 17th day of July from the village of the Akensea to retrace our steps. We therefore re-ascended the Mississippi, which gives us much trouble in breasting its current. It is true that we leave it at about the 38th degree to enter another river, which greatly shortens our road and takes us with but little effort to the Lake of the Illinois. We have seen nothing like this river that we enter, as regards its fertility of soil, its prairie and woods, its cattle, elk, deer, wild oats, bustards, swans, parroquets, and even beaver. There are many small lakes and rivers. That on which we sailed is wide, deep and still for sixty-five leagues. In the spring and during part of the summer there is only-one portage of half a league. We found on it a village of Illinois, Kaskaskia, which consists of seventy-four cabins. They received us very well and obliged me to promise that I would return and instruct them. One of the chiefs of this nation, with his young men, escorted us to the Lake of the Illinois, whence at last, at the end, we reached the bay Des Prantz, from which we'had started at the beginning of June.”

This account indicates a reasonable probability that Lather Marquette went up the Mississippi river, turned into the Illinois, thence up the Illinois to the mouth of the Desplaines, and up that river to a point where a portage was made to the south branch of the Chicago river, thence into the Lake of Illinois, (Lake Michigan,) and this probability is strengthened by the maps introduced, which show that these rivers, together with the portage between the Desplaines and the Chicago, were known at that time. The boats in which these voyages were made are described in the following passage: “We were not long in preparing all our equipment, although we were about to begin a voyage the duration of which we could not foresee. Indian corn, with some smoked meat, constituted all our provisions. With these we embarked,—Monsieur Jollyet and myself, with five men,—in two bark canoes, fully resolved to do and suffer everything for so glorious an undertaking.”

A passage from “Indian Antiquities,” by Schoolcraft, is introduced, which recites that in 1783 Jean Baptiste Perrault, a fur trader from Montreal, spent a year in Cahokia and returned by way of Chicago with a canoe and a barge loaded with furs. The passage referred to is as follows: “About the 15th of April the packs from Missouri arrived. Our bourgeois settled his accounts with M. Coteau and received seventy-four packs of furs. His retail store at Cahokia produced 500 Spanish- dollars and 400 pounds of tobacco. We left Cahokia on the 4th of May for Mackinac. My directions were to pass by Chicago, having one barge and one canoe, and to await the arrival of M. Marchisseaux at Little Detroit, in Lake Michigan, he having gone by the way of Prairie des Chiens to terminate his business with the Saules. After fourteen days’ detention he arrived, and continuing our route we reached Mackinac the beginning of July, where I found myself at liberty.”

A manuscript not very well authenticated was introduced, which shows that Hugh Heward, in May, 1790, made a voyage from Lake Michigan through the Chicago river and over the portage road to the Desplaines, and down the Desplaines and Illinois to some point (probably Kaskaskia) on the Mississippi river. This document records the fact that after passing over the rapids above the village of Mt. Julliette two of his comrades informed Heward that “there was so much danger they would not return with Heward.” The character of the boats and cargo is not described, but neither could have been very heavy, since the boats and cargo were carried over the portage from the Chicago river to the Desplaines by Heward and his'two comrades with the help of five Indians, whose services were paid for with two handfuls of powder.

There are other historical references to the route by way of the Chicago and Desplaines rivers to the Mississippi, but these are the only well authenticated voyages that were made during the first one hundred and fifty years after the discovery of the Desplaines river. The fact that during this long period only an occasional voyage was made under the guidance of a heroic adventurer or a religious zealot, who, in the language of Marquette, “feared no death and regarded 'no happiness greater than that of losing his life for the glory of Him who made us all,” is not sufficient evidence to prove that the Desplaines river was, in fact, regarded as navigable by the great majority of the people who must have been acquainted with it during this period. It rather tends to show that the few who possessed the courage to brave the dangers incident to a voyage over the rocky rapids of the Desplaines were exceptional case's, and that the great body of the people living in the vicinity of this river did not regard the navigation of the river as reasonably safe and therefore made no use of it. There is not in this entire record a well authenticated instance in which a boat engaged in commerce navigated the waters of the Desplaines river. It seems pertinent to inquire, if the Desplaines river is navigable why has it not been navigated ? If the Desplaines river was navigable, why did the State of Illinois spend $10,000,000 in the construction of the Illinois and Michigan canal, which parallels the Desplaines river ? The conclusion is irresistible that in the opinion of the legislature the Desplaines river was not only not navigable in its natural condition, but that the natural obstructions were, such that it was cheaper to construct a navigable canal than to remove the difficulties out of the natural channel. Appellant’s answer to the last question above stated is, that the Illinois and Michigan canal was extended beyond the point where it might have intersected the Desplaines river in order to obtain as large a grant of land as possible from the Federal government. This answer discredits the intelligence of Congress and reflects on the honor of the State. We are unwilling to believe that the State would have asked for, or that Congress would have granted, lands to aid in the building of a canal that was not needed. The Chicago river was used as a part of the canal at its northern end, and had it been practicable to do so, it is reasonable to believe the Desplaines river would have been used at the other end.

A large number of witnesses testified, some from personal observation and others as experts, upon this issue. As might be expected, these witnesses testify to opposite opinions in regard to the navigability of this river. It is not practicable nor desirable to discuss this evidence in detail. Whatever may be thought of the preponderance of it one way or the other, it can have but little weight as against the uncontroverted fact that the river has never been used as a public highway for commerce. During the early part of the history of the Mississippi valley, and before railroad transportation came into general use, all of the navigable rivers in the settled portion of the country were extensively used. The necessities of the early settlers compelled them to use the means of transportation that nature afforded them. Before steamboats were in general use, farm products were floated down the Mississippi river and all of its tributaries in flatboats. The Sangamon, Illinois, Wabash and Ohio rivers were thus extensively used. Had it been possible to do so, it seems but reasonable that the Desplaines river would have been used in the same way by the early settlers, but the evidence of any such use is not found in this record. The evidence shows that as early as 1817 there was a well-beaten wagon road from the mouth of the Desplaines river to Chicago, over which boats and other loads were hauled by oxen and vehicles kept for that purpose by the French settlers at Chicago. The evidence of the existence of this road is found in a report by R. Graham and Joseph Phillips made to Hon. J. C. Calhoun, Secretary of War, and is dated “Kaskaslcia, Aprul 4, 1819.” The testimony of the early settlers is, that they came in and went out of Chicago by wagon road. In 1836 the New York and Oswego Transportation Line advertised in the Chicago American of May 14, 1836, that goods would be transported from New York to St. Louis. One link in the line of transportation was by “wagons from Chicago to the head of navigation on the Illinois river.” And in the same paper a passenger line was advertised from Chicago to Peoria, which was by a mail stage leaving Chicago daily for Peoria, making the trip of 170 miles in “from thirty to thirty-five hours by steamboats and stages,—stages from Chicago to Peru and steamboats from Peru to Peoria. Fare, the whole distance, $11, and found on board the boat. This line passes through Lockport, Juliet, Ottawa and Utica, to Peru.” All of the witnesses who testified to the mode of transportation before the opening of the Illinois and Michigan canal, in 1848, testify to the general custom that prevailed along the line of the Desplaines river of hauling grain and other produce by wagon to Chicago, and some of them say that it was not uncommon in those days for wagons to go to Chicago from points as far south as Bloomington.

Appellant has introduced, for the purpose of comparison, descriptions of other river