THE RIGHT TO THE RIVER

By the time that the last of the cargo was bestowed, the boat was so full that there was scarcely a place in which to hang the four fire-extinguishers which Mr. Schenck had supplied for the protection of the cargo, of which he owned a considerable part.

The river by this time was bank full. Indeed, the flatboat lay that last night almost under an apple tree, and directly over the place where three days before the boys had cooked their meals.

When the final start was made, therefore, it was only necessary to give three or four strokes of the great “sweeps” to shove the craft out into the stream. After that she was left free to float. The biggest bars were at 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 depended upon to “keep her in the river,” as boatmen say, and the boys had nothing to do, between Craig’s Landing and Louisville, fifty or sixty miles below, except pump a little now and then, cook their meals, and set up the proper lights at night. Of course someone was always “on watch,” but as the time was divided between the five, that amounted to very little.

As the boat neared Louisville, Ed suggested to his brother that he had better land above the town, and not within its limits.

“Why?” asked Phil. “We’ve got to get some provisions as well as hire a falls 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 land on which we tie up won’t charge us just as much?” asked Irv Strong, who had never seen a large city and wanted to get as good a glimpse as he could of this one.

“Because the Mississippi River and its tributaries are not ‘navigable’ waters, but are ‘public highways for purposes of commerce,’” responded Ed. “If they weren’t that last, we couldn’t run this boat down them at all.”

“Not navigable?” queried Will Moreraud. “Well, looking at that big steamboat out there, which has just come from Cincinnati, that statement seems a trifle absurd.”

“Let me explain,” said Ed. “The English common law, from which we get ours, 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 New Orleans, neither that great river nor any of its splendid tributaries are 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 acts under direction of her husband. But both he and you are wrong, particularly you, as you’ll see when I explain. It is absolutely necessary for the law to determine just how far a man’s ownership of land lying along a stream extends. You see that?”

“Of course,” was the general response.

“Yes,” continued Ed, “otherwise very perplexing questions would arise as to what a man might or might not do along shore. Now in England, where our law on the subject comes from, it is a fact that the tide ebbs and flows in all the navigable parts of the rivers and nowhere else. So the law made the tide the test, or rather recognized it as a test already established by nature.

“Now in order that commerce might be carried on, the law decreed that the owner of land lying on a navigable stream should own only to the edge of the bank—or to the ‘natural break of the bank,’ as the law writers express it. This was to prevent owners of the shores from levying tribute on ships that might need to land or anchor in front of their property.

“But on streams that were not navigable, no such need existed. On the contrary, it was very desirable, for many reasons, that the owners of the banks should be free to deal as they saw fit with the streams in front—to straighten or deepen them, and all that sort of thing. So the law decreed that on streams not navigable the owner of the bank should own to ‘the middle thread of the water,’ wherever that might happen to be.

“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 own their banks own the rivers also, the man on each side owning to the middle thread of water. Naturally, these men could step in and say that nobody should run a boat through their part of the river without paying whatever toll they might choose to charge. Under such a system it would be impossible to use the rivers at all. It would cost nobody knows how many thousands of dollars in tolls to run a boat, say from Cincinnati to New Orleans.”

“Well, why don’t it, then?” asked Will Moreraud. “Why can’t every farmer whose land we pass come out and make us pay for using his part of the river?”

“For the same reason,” said Ed, “that the farmer can’t come out and make you pay toll for passing over a public road which happens to cross his land.”

“How do you mean? I don’t understand,” said Irv.

“Well, the only reason the farmer can’t make you pay toll for crossing his land on a public road is, that the road is made by law a public highway, open to everybody’s use, and it is a criminal offence for anybody to obstruct it, either by setting up a toll-gate, or building a fence, or felling trees across it, or in any other way whatever. And that’s the only reason a man who owns land along these rivers can’t charge toll for their use or put any sort of obstruction in them without getting 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 difficulty created by the fact that this great river system is not legally navigable while its actual navigation is a common necessity, Congress early passed a law making the Mississippi River and all its tributaries ‘public highways for purposes of commerce.’ That’s why nobody can prevent you from running boats on them, or charge you for the privilege.”

The boys were deeply interested in the explanation, which was new to them, and so they sat silent for a while, thinking it over, as people are 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 what it has to do with where we land at Louisville.”

“Well,” said Ed, “I can explain that. As the river is a public highway for purposes of commerce, nobody can charge you for any legitimate use of it, or its shores below high-water mark, such use, for example, as landing in front of his property, a thing which may be absolutely necessary to navigation. But if a man or a city chooses to spend money in making your landing easy and convenient, say by building a levee or wharf, putting in posts for you to make your boat fast by, or anything of the kind, that man or city has a right to charge you, not for landing, but for the use of the improvements and conveniences.”

“Oh, yes, I see,” said Phil. “Every city does that, and so if you land at its improved landing, you must pay. Well, we’ll land on unimproved shores above Louisville, and above or below every other town that we have occasion to land at. That’s business. But I don’t see why Congress didn’t solve the whole riddle by adopting a new rule as to what are and what are not navigable streams.”

“What rule?” asked Ed.

“Well, the common-sense rule, that a stream which is actually navigable shall be regarded as navigable in law.”

“Actually navigable by what?” asked Ed. “There isn’t a spring branch in all the country that isn’t actually navigable by some sort of boat. Even a 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 would include Indian Creek and Long Run, and even all the branches we go wading in, as navigable streams. And then again, some streams are practically 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, I don’t see how any other line than that of the tide could have been drawn, or how the other difficulty could have been met in any better way than by declaring the Mississippi and all its tributaries ‘public highways for purposes of commerce.’ That was the simplest way out, and the simplest way is usually the best way.”[1]

“Yes,” said Irv Strong, “and as the simplest way to relieve hunger is to eat, I move that we stop talking and get dinner.”

The suggestion was accepted without dissent, and the two whose turn it was to cook went below to start a fire in the stove.