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Opinion of the Court.

allegations of the information and of the grounds of decision of the court. The information alleges the following: The State of Illinois was formed out of the Northwest Territory ceded by Virginia to the United States in 1784, and by the ordinance for the government of the territory it was declared in Article 4 that "the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States and those of any other States that may be admitted into the Confederacy, without any tax, impost or duty therefor."

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On May 18, 1796 (1 Stat. 464, c. 29), Congress passed an act for the sale of lands of the United States in the territory northwest of the Ohio River and above the mouth of the Kentucky River, by § 9 of which act it was provided that all navigable rivers within the territory to be disposed of by virtue of the act should be deemed to be and remain public highways. Subsequently there was separated from such territory by an act of Congress dated May 7, 1800 (2 Stat. 58, c. 41), the portion thereof which now embraces the States of Illinois and Louisiana, to be called Indiana Territory. On March 26, 1804 (2 Stat. 277, c. 35), Congress, acting under the constitution of 1787, passed an act for the disposal of the public lands in Indiana Territory, by which it was provided that all the navigable rivers, creeks and waters within that Territory should be deemed to be and remain public highways.

By an act of February 3, 1809, 2 Stat. 514, c. 13, Congress divided the Indiana Territory and constituted that portion of it which now comprises the State of Illinois a separate territory, to be called Illinois, and provided that its inhabitants should be entitled to and enjoy all and singular the rights, privileges and advantages

Opinion of the Court.

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granted and secured to the people of the Northwest Territory by the ordinance of July 13, 1787.

On April 18, 1818 (3 Stat. 428, c. 67), Congress passed an act to enable the people of Illinois to form a constitution and state government for admission into the Union upon an equality with other States and provided that the government should be republican and not repugnant to the ordinance of July 13, 1787. A constitution was adopted and Congress, on December 3, 1818 (3 Stat. 536), declared the admission of the State into the Union, that its constitution and government were republican and in conformity to the provisions of the articles of compact between the original States and the people and the States in the territory northwest of the river Ohio, passed on July 13, 1787 (1 Stat. 51n.).

The river Des Plaines is situated in the Northwest Territory, rises in Wisconsin and flows southerly into the State of Illinois (its course is given), in all a distance of about ninety-six miles.

The river Kankakee rises in Indiana and flows westerly into Illinois and unites in Grundy County with the Des Plaines, forming with it the Illinois which flows thence westerly and southwesterly through several counties in Illinois into the Mississippi River. Wherefore by reason of the fact that the Des Plaines River is wholly within the Northwest Territory and that it empties its waters into the Mississippi, and by reason of the other facts set forth, it is subject to the provisions of the acts of Congress set out.

It is shown by early explorations and discoveries that the Des Plaines River was navigable from a point near where is now situated the City of Chicago to its mouth, and was used as a highway for commercial purposes, and commerce was carried on over it and over the Chicago River, located in Cook County, Illinois, and connection therewith made by a short portage between the two

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Opinion of the Court.

rivers near the site of what is now the City of Chicago and was in use as a highway of commerce leading from Lake Michigan and the waters emptying into the St. Lawrence River on the one hand, and the waters of the Mississippi River on the other, thenceforward from the time of said first use up to and at the time when the ordinance of 1787 and the several acts of Congress were respectively enacted.

Afterward the State of Illinois, by and through its legislature and in obedience to the several acts of Congress set forth, assumed charge of the river and in 1839 gave permission for the building of a toll bridge across the river, and subsequently by an act passed in 1839 amending the several laws in relation to the Illinois and Michigan Canal it was provided that no stream of water passing through the canal lands should pass by the sale so as to deprive the State of the use of such water if necessary to supply the canal without charge for the same; and it was further provided that the lands situated upon the streams which have been meandered by the surveys of public lands by the United States should be considered as bounded by the lines of those surveys and not by the streams. In the same year an act was passed declaring the river a navigable stream and providing that it should be deemed and held a public highway and should be free, open and unobstructed from its point of connection with the canal to its utmost limit within the State for the passage of all boats and water craft of every description.

In 1845 the State authorized the construction and continuance of the mill dam across the river with reservation of the right to the State of improving the dam and of using the water for the canal, and for any other purpose; and in 1849 authorized the building of a bridge at Lockport. The State by certain acts of its legislature (they are set out) created the Sanitary District of Chicago, under the provision of which a channel was constructed connecting Lake Michigan with the Des Plaines River, at a point VOL. CCXXXIV-33

Opinion of the Court.

some sixteen miles above the site of the dam in question, and through which about 300,000 cubic feet of water per minute are drawn through the Chicago River and the Sanitary District Drainage Channel and discharged in the Des Plaines River.

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It was provided that the channel when completed should be a navigable stream and that when the General Government should improve the river it should have full control over the same for navigation purposes, but not to interfere with its control for sanitary drainage purposes. On December 6, 1907, the legislature passed an act, which is as follows:

"SEC. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: That the Des Plaines and Illinois rivers throughout their courses from and below the water power plant of the main channel of the Sanitary District of Chicago in the township of Lockport, at or near Lockport, in the county of Will, are hereby recognized as and are hereby declared to be navigable streams, and it is made the special duty of the Governor and the Attorney General to prevent the erection of any structure in or across said streams without explicit authority from the General Assembly, and the Governor and Attorney General are hereby authorized and directed to take the necessary legal action or actions to remove all and every obstruction now existing in said rivers that in any wise interferes with the intent and purpose of this act."

The relator, Charles S. Deneen, is the Governor referred to in the act and that by virtue of the statute, his office and constitutional duty he has a special interest and responsibility in the matters set forth.

The purchasers from the State in section 25 and other similarly situated lands with reference to the Des Plaines River did not take, and did not claim to take, under their several purchases that portion of the lands lying between

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Opinion of the Court.

the meander line and the water of the river and that the lands so lying have never been used by any individual under any claim of authority or right vested in the purchasers from the State of Illinois, save and except as claimed by defendant. Lands so lying, therefore, together with the bed of the stream of the river in said quartersection, and other lands similarly situated with reference to the river, have not passed by any purchase of adjoining lands from the State of Illinois, but the same and every part thereof is owned by the State and held for the benefit of its people and of the people of the United States as a public highway for commerce.

The trustees of the Illinois and Michigan Canal executed and delivered to one Charles E. Boyer a deed bearing date October 22, 1860, to land in section 25, excepting and reserving so much as was occupied by the canal and its waters, and a strip ninety feet wide on either side of the canal, containing 196 62-100 acres, the tract being a portion of the land granted by the United States to the State to aid the State in opening a canal to connect the waters of the Illinois River with those of Lake Michigan and by the State granted to the Board of Trustees of the canal for the purposes set forth in the act of February 21, 1843.

The defendant derives its title by mesne conveyances from Boyer and certain contracts and leases entered into between the canal commissioners and one Harold F. Griswold and assigned to defendant, and in pursuance of the claim of right thus obtained defendant commenced the construction of a dam across the river, but that the said several leases, deeds and contracts are ineffectual to confer any right to build or maintain the dam.

The legislature of the State, by a proper resolution passed on October 16, 1907, has proposed the building of a deep waterway commencing at the southern end of the Chicago Drainage Canal and extending along the Des Plaines River, to be submitted to a vote of the people

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