CHAPTER VIII
THE RIGHT TO THE RIVER
By the time that the last of the cargo was bestowed, the boat was sofull that there was scarcely a place in which to hang the fourfire-extinguishers which Mr. Schenck had supplied for the protection ofthe cargo, of which he owned a considerable part.
The river by this time was bank full. Indeed, the flatboat lay that lastnight almost under an apple tree, and directly over the place wherethree days before the boys had cooked their meals.
When the final start was made, therefore, it was only necessary to givethree or four strokes of the great "sweeps" to shove the craft out intothe stream. After that she was left free to float. The biggest bars wereat least ten feet under water, and the boat "drew" less than three feet,heavily laden as she was. For the rest, the current could be dependedupon to "keep her in the river," as boatmen say, and the boys hadnothing to do, between Craig's Landing and Louisville, fifty or sixtymiles below, except pump a little now and then, cook their meals, andset up the proper lights at night. Of course someone was always "onwatch," but as the time was divided between the five, that amounted tovery little.
As the boat neared Louisville, Ed suggested to his brother that he hadbetter land above the town, and not within its limits.
"Why?" asked Phil. "We've got to get some provisions as well as hire afalls pilot, and it will be more convenient if we land at the levee."
"But it will cost us five or ten dollars in good money for wharfage,"replied Ed.
"But if we land above the town, how do we know the man owning the landon which we tie up won't charge us just as much?" asked Irv Strong, whohad never seen a large city and wanted to get as good a glimpse as hecould of this one.
"Because the Mississippi River and its tributaries are not 'navigable'waters, but _are_ 'public highways for purposes of commerce,'" respondedEd. "If they weren't that last, we couldn't run this boat down them atall."
"Not navigable?" queried Will Moreraud. "Well, looking at that bigsteamboat out there, which has just come from Cincinnati, that statementseems a trifle absurd."
"Let me explain," said Ed. "The English common law, from which we getours, calls no stream 'navigable' unless the tide ebbs and flows in it.And as the tide does not ebb and flow in the Mississippi much above NewOrleans, neither that great river nor any of its splendid tributariesare recognized by the law as navigable."
"Then the law is an idiot," said Irv Strong.
"One of Dickens's characters said something like that," responded Ed,"when he was told that the law supposes a married woman always actsunder direction of her husband. But both he and you are wrong,particularly you, as you'll see when I explain. It is absolutelynecessary for the law to determine just how far a man's ownership ofland lying along a stream extends. You see that?"
"Of course," was the general response.
"Yes," continued Ed, "otherwise very perplexing questions would arise asto what a man might or might not do along shore. Now in England, whereour law on the subject comes from, it is a fact that the tide ebbs andflows in all the navigable parts of the rivers and nowhere else. So thelaw made the tide the test, or rather recognized it as a test alreadyestablished by nature.
"Now in order that commerce might be carried on, the law decreed thatthe owner of land lying on a navigable stream should own only to theedge of the bank--or to the 'natural break of the bank,' as the lawwriters express it. This was to prevent owners of the shores fromlevying tribute on ships that might need to land or anchor in front oftheir property.
"But on streams that were not navigable, no such need existed. On thecontrary, it was very desirable, for many reasons, that the owners ofthe banks should be free to deal as they saw fit with the streams infront--to straighten or deepen them, and all that sort of thing. So thelaw decreed that on streams not navigable the owner of the bank shouldown to 'the middle thread of the water,' wherever that might happen tobe.
"Now as all these great rivers of ours, the very greatest in the world,by the way, are in law non-navigable, it follows that the men who owntheir banks own the rivers also, the man on each side owning to themiddle thread of water. Naturally, these men could step in and say thatnobody should run a boat through their part of the river without payingwhatever toll they might choose to charge. Under such a system it wouldbe impossible to use the rivers at all. It would cost nobody knows howmany thousands of dollars in tolls to run a boat, say from Cincinnati toNew Orleans."
"Well, why don't it, then?" asked Will Moreraud. "Why can't every farmerwhose land we pass come out and make us pay for using his part of theriver?"
"For the same reason," said Ed, "that the farmer can't come out and makeyou pay toll for passing over a public road which happens to cross hisland."
"How do you mean? I don't understand," said Irv.
"Well, the only reason the farmer can't make you pay toll for crossinghis land on a public road is, that the road is made by law a publichighway, open to everybody's use, and it is a criminal offence foranybody to obstruct it, either by setting up a toll-gate, or building afence, or felling trees across it, or in any other way whatever. Andthat's the only reason a man who owns land along these rivers can'tcharge toll for their use or put any sort of obstruction in them withoutgetting himself into trouble with the law for his pains."
"How's that?" asked one of the boys. "This river isn't a public road."
"That is precisely what it is," said Ed. "Realizing the difficultycreated by the fact that this great river system is not legallynavigable while its actual navigation is a common necessity, Congressearly passed a law making the Mississippi River and all its tributaries'public highways for purposes of commerce.' That's why nobody canprevent you from running boats on them, or charge you for theprivilege."
The boys were deeply interested in the explanation, which was new tothem, and so they sat silent for a while, thinking it over, as peopleare apt to do when they have heard something new that interests them.
Presently Phil said:--
"That's all very clear and I understand it, but I don't quite see whatit has to do with where we land at Louisville."
"Well," said Ed, "I can explain that. As the river is a public highwayfor purposes of commerce, nobody can charge you for any legitimate useof it, or its shores below high-water mark, such use, for example, aslanding in front of his property, a thing which may be absolutelynecessary to navigation. But if a man or a city chooses to spend moneyin making your landing easy and convenient, say by building a levee orwharf, putting in posts for you to make your boat fast by, or anythingof the kind, that man or city has a right to charge you, not forlanding, but for the use of the improvements and conveniences."
"Oh, yes, I see," said Phil. "Every city does that, and so if you landat its improved landing, you must pay. Well, we'll land on unimprovedshores above Louisville, and above or below every other town that wehave occasion to land at. That's business. But I don't see why Congressdidn't solve the whole riddle by adopting a new rule as to what are andwhat are not navigable streams."
"What rule?" asked Ed.
"Well, the common-sense rule, that a stream which is actually navigableshall be regarded as navigable in law."
"Actually navigable by what?" asked Ed. "There isn't a spring branch inall the country that isn't actually navigable by some sort of boat. Evena wash-basin will float a toy boat."
"Oh, but I mean real boats."
"Of what size?"
"Well, big enough to carry freight or passengers."
"Any skiff drawing three inches of water can do that. Such a rule wouldinclude Indian Creek and Long Run, and even all the branches we gowading in, as navigable streams. And then again, some streams arepractically navigable even by steamboats at some seasons of the year,and almost or altogether dry at others. This great Ohio River of ours,in its upper parts at least, goes pretty nearly dry some summers. No, Idon't see how any other line than that of the tide could have beendrawn, or how the other difficulty could have been
met in any better waythan by declaring the Mississippi and all its tributaries 'publichighways for purposes of commerce.' That was the simplest way out, andthe simplest way is usually the best way."[1]
[1] Ed's exposition of the law and the reason for it is sound enough. But different states, by statutes or court decisions, have somewhat modified it, particularly as regards the extent of bank ownership. Probably Ed knew this, but didn't think it necessary to go into details, which, after all, do not change the general truth.--_Author._
"Yes," said Irv Strong, "and as the simplest way to relieve hunger is toeat, I move that we stop talking and get dinner."
The suggestion was accepted without dissent, and the two whose turn itwas to cook went below to start a fire in the stove.