CHAPTER XXI.

LEGISLATION--DRAINAGE COMPANIES.

England protects her Farmers.--Meadows ruined by Corporation

dams.--Old Mills often Nuisances.--Factory Reservoirs.--Flowage

extends above level of Dam.--Rye and Derwent Drainage.--Give Steam

for Water-Power.--Right to Drain through land of others.--Right to

natural flow of Water.--Laws of Mass.--Right to Flow; why not to

Drain?--Land-drainage Companies in England.--Lincolnshire

Fens.--Government Loans for Drainage.

Nothing more clearly shows the universal interest and confidence of the

people of Great Britain, in the operation of land-drainage, than the

acts of Parliament in relation to the subject. The conservatism of

England, in the view of an American, is striking. She never takes a step

till she is sure she is right. Justly proud of her position among the

nations, she deems change an unsafe experiment, and what has been, much

safer than what might be. Vested rights are sacred in England, and

especially rights in lands, which are emphatically real estate there.

Such are the sentiments of the people, and such the sentiments of their

representatives and exponents, the Lords and Commons.

Yet England has been so impressed with the importance of improving the

condition of the people, of increasing the wealth of the nation, of

enriching both tenant and landlord, by draining the land, that the

history of her legislation, in aid of such operations, affords a lesson

of progress even to fast Young America. Powers have been granted, by

which encumbered estates may be charged with the expenses of drainage,

so that remainder-men and reversioners, without their consent, shall be

compelled to contribute to present improvements; so that careless or

obstinate adjacent proprietors shall be compelled to keep open their

ditches for outfalls to their neighbor's drains; so that mill-dams, and

other obstructions to the natural flow of the water, may be removed for

the benefit of agriculture; and, finally, the Government has itself

furnished funds, by way of loans, of millions of pounds, in aid of

improvements of this character.

In America, where private individual right is usually compelled to yield

to the good of the whole, and where selfishness and obstinacy do not

long stand in the pathway of progress, obstructing manifest improvement

in the condition of the people; we are yet far behind England in legal

facilities for promoting the improvement of land culture. This is

because the attention of the public has not been particularly called to

the subject.

Manufacturing corporations are created by special acts of legislation.

In many States, rights to flow, and ruin, by inundation, most valuable

lands along the course of rivers, and by the banks of ponds and lakes,

to aid the water-power of mills, are granted to companies, and the

land-owner is compelled to part with his meadows for such compensation

as a committee or jury shall assess.

In almost every town in New England there are hundreds, and often

thousands, of acres of lands, that might be most productive to the

farmer; overflowed half the year with water, to drive some old saw-mill,

or grist-mill, or cotton-mill, which has not made a dividend, or paid

expenses, for a quarter of a century. The whole water-power, which,

perhaps, ruins for cultivation a thousand acres of fertile land, and

divides and breaks up farms, by creating little creeks and swamps

throughout all the neighboring valleys, is not worth, and would not be

assessed, by impartial men, at one thousand dollars. Yet, though there

is power to take the farmer's land for the benefit of manufacturers,

there is no power to take down the company's dam for the benefit of

agriculture. An old saw-mill, which can only run a few days in a Spring

freshet, often swamps a half-township of land, because somebody's

great-grandfather had a prescriptive right to flow, when lands were of

no value, and saw-mills were a public blessing.

There are numerous cases, within our own knowledge, where the very land

overflowed and ruined by some incorporated company, would, if allowed to

produce its natural growth of timber and wood, furnish ten times the

fuel necessary to supply steam-engines, to propel the machinery carried

by the water-power.

Not satisfied with obstructing the streams in their course, the larger

companies are, of late, making use of the interior lakes, fifty or a

hundred miles inland, as reservoirs, to keep back water for the use of

the mills in the summer droughts. Thus are thousands of acres of land

drowned, and rendered worse than useless; for the water is kept up till

Midsummer, and drawn off when a dog-day climate is just ready to

convert the rich and slimy sediment of the pond into pestilential

vapors. These waters, too, controlled by the mill-owners, are thus let

down in floods, in Midsummer, to overflow the meadows and corn-fields of

the farmer, or the intervals and bottom-lands below.

Now, while we would never advocate any attack upon the rights of

mill-owners, or ask them to sacrifice their interests to those of

agriculture, it surely is proper to call attention to the injury which

the productive capacity of the soil is suffering, by the flooding of our

best tracts, in sections of country where land is most valuable. Could

not mill-owners, in many instances, adopt steam instead of water-power,

and becoming land-_draining_ companies, instead of land-_drowning_

companies; at least, let Nature have free course with her gently-flowing

rivers, and allow the promise to be fulfilled, that the earth shall be

no more cursed with a flood.

We would ask for the land-owner, simply equality of rights with the

mill-owner. If a legislature may grant the right to flow lands, against

the will of the owner, to promote manufactures, the same legislature may

surely grant the right, upon proper occasion, to remove dams, and other

obstructions to our streams, to promote agriculture. The rights of

mill-owners are no more sacred than those of land-owners; and the

interests of manufactures are, surely, no more important than those of

agriculture.

We would not advocate much interference with private rights. In some of

the States, no special privileges have been conferred upon water-power

companies. They have been left to procure their rights of flowage, by

private contract with the land-owners; and in such States, probably, the

legislatures would be as slow to interfere with rights of flowage, as

with other rights. Yet, there are cases where, for the preservation of

the health of the community, and for the general convenience,

governments have everywhere exercised the power of interfering with

private property, and limiting the control of the owners. To preserve

the public health, we abate as nuisances, by process of law,

slaughter-houses, and other establishments offensive to health and

comfort, and we provide, by compulsory assessments upon land-owners, for

sewerage, for side-walks, and the like, in our cities.

Everywhere, for the public good, we take private property for highways,

upon just compensation, and the property of corporations is thus taken,

like that of individuals.

Again, we compel adjacent owners to fence their lands, and maintain

their proportion of division fences of the legal height, and we elect

fence viewers, with power to adjust equitably, the expenses of such

fences. We assess bachelors and maidens, in most States, for the

construction of schoolhouses, and the education of the children of

others, and, in various ways, compel each member of society to

contribute to the common welfare.

How far it may be competent, for a State legislature to provide for, or

assist in, the drainage of extensive and unhealthy marshes; or how far

individual owners should be compelled to contribute to a common

improvement of their lands; or how far, and in what cases, one

land-owner should be authorized to enter upon land of another, to secure

or maintain the best use of his own land--these are questions which it

is unnecessary for us to attempt to determine. It is well that they

should be suggested, because they will, at no distant day, engage much

attention. It is well, too, that the steps which conservative England

has thought it proper to take in this direction, should be understood,

that we may the better determine whether any, and if any, what course

our States may safely take, to aid the great and leading interest of our

country.

The swamps and stagnant meadows along our small streams and our rivers,

which are taken from the farmer, by flowage, for the benefit of mills,

are often, in New England, the most fertile part of the townships--equal

to the bottom lands of the West; and they are right by the doors of

young men, who leave their homes with regret, because the rich land of

far-off new States offers temptations, which their native soil cannot

present.

It is certainly of great importance to the old States, to inquire into

these matters, and set proper bounds to the use of streams for

water-powers. The associated wealth and influence of manufacturers, is

always more powerful than the individual efforts of the land-owners.

Reservoirs are always growing larger, and dams continually grow higher

and tighter. The water, by little and little, creeps insidiously on to,

and into, the meadows far above the obstruction, and the land-owner must

often elect between submission to this aggression, and a tedious

law-suit with a powerful adversary. The evil of obstructions to streams

and rivers, is by no means limited to the land visibly flowed, nor to

land at the level of the dam. Running water is never level, or it could

not flow; and in crooked streams, which flow through meadows, obstructed

by grass and bushes, the water raised by a dam, often stands many feet

higher, at a mile or two back, than at the dam. It is extremely

difficult to set limits to the effect of such a flowage. Water is flowed

into the subsoil, or rather is prevented from running out; the natural

drainage of the country is prevented; and land which might well be

drained artificially, were the stream not obstructed, is found to lie so

near the level, as to be deprived of the requisite fall by back water,

or the sluggish current occasioned by the dam.

These obstructions to drainage have become subjects of much attention,

and of legislative intervention in various forms in England, and some of

the facts elicited in their investigations are very instructive.

In a discussion before the Society of Arts, in 1855, in which many

gentlemen, experienced in drainage, took a part, this subject of

obstruction by mill-dams came up.

Mr. G. Donaldson said he had been much engaged in works of

land-drainage, and that, in many instances, great difficulties were

experienced in obtaining outfalls, owing to the water rights, on the

course of rivers for mill-power, &c.

Mr. R. Grantham spoke of the necessity of further legislation, "so as to

give power to lower bridges and culverts, under public roads, and

straighten and deepen rivers and streams." But, he said, authority was

wanting, above all, "for the removal of mills, dams, and other

obstructions in rivers, which, in many cases, did incalculable injury,

many times exceeding the value of the mills, by keeping up the level of

rivers, and rendering it totally impossible to drain the adjoining

lands."

Mr. R. F. Davis said, "If they were to go into the midland districts,

they would see great injury done, from damming the water for mills."

In Scotland, the same difficulty has arisen. "In many parts of this

country," says a Scottish writer, "small lochs (lakes) and dams are kept

up, for the sake of mills, under old tenures, which, if drained, the

land gained by that operation, would, in many instances, be worth ten

times the rent of such mills."

In the case of the Rye and Derwent Drainage, an account of which is

found in the 14th Vol. of the Journal of the Royal Agricultural Society,

a plan of compensation was adopted, where it became necessary to remove

dams and other obstructions, which is worthy of attention. The

Commissioners under the Act of 1846, removed the mill-wheels, and

substituted steam-engines corresponding to the power actually used by

the mills, compensating, also, the proprietors for inconvenience, and

the future additional expensiveness of the new power.

"The claims of a short canal navigation, two fisheries, and tenants'

damages through derangement of business during the alterations, were

disposed of without much outlay; and the pecuniary advantages of the

work are apparent from the fact, that a single flood, such as

frequently overflowed the land, has been known to do more damage, if

fairly valued in money, than the whole sum expended under the act."

Under this act, it became necessary for the Commissioners to estimate

the comparative cost of steam and water-power, in order to carry out

their idea of giving to the mill-owners a steam-power equivalent to

their water-power.

"As the greater part of their water-power was employed on corn and

flour-mills, upon these the calculations were chiefly based. It was

generally admitted to be very near the truth, that to turn a pair of

flour-mill stones properly, requires a power equal to that of

two-and-a-half horses, or on an average, twenty horses' power, to turn

and work a mill of eight-pairs of stones, and that the total cost of a

twenty-horse steam-engine, with all its appliances, would be $5,000, or

$250 per horse power."

Calculations for the maintenance of the steam-power are also given; but

this depends so much on local circumstances, that English estimates

would be of little value to us.

The arrangements in this case with the mill-owners, were made by

contract, and not by force of any arbitrary power, and the success of

the enterprise, in the drainage of the lands, the prevention of damage

by floods, especially in hay and harvest-time, and in the improvement of

the health of vegetation, as well as of man and animals, is said to be

strikingly manifest.

This act provides for a "water-bailiff," whose duty it is to inspect the

rivers, streams, water-courses, &c., and enforce the due maintenance of

the banks, and the uninterrupted discharge of the waters at all times.

COMPULSORY OUTFALLS.

It often happens, especially in New England, where farms are small, and

the country is broken, that an owner of valuable lands overcharged with

water, perhaps a swamp or low meadow, or perhaps a field of upland,

lying nearly level, desires to drain his tract, but cannot find

sufficient fall, without going upon the land of owners below. These

adjacent owners may not appreciate the advantages of drainage; or their

lands may not require it; or, what is not unusual, they may from various

motives, good and evil, refuse to allow their lands to be meddled with.

Now, without desiring to be understood as speaking judicially, we know

of no authority of law by which a land-owner may enter upon the

territory of his neighbor for the purpose of draining his own land, and

perhaps no such power should ever be conferred. All owners upon streams,

great and small, have however, the right to the natural flow of the

water, both above and below. Their neighbors below cannot obstruct a

stream so as to flow back the water upon, or into, the land above; and

where artificial water-courses, as ditches and drains have long been

opened, the presumption would be that all persons benefitted by them,

have the right to have them kept open.

Parliament is held to be omnipotent, and in the act of 1847, known as

Lord Lincoln's Act, its power is well illustrated, as is also the

determination of the British nation that no trifling impediments shall

hinder the progress of the great work of draining lands for agriculture.

The act, in effect, authorizes any person interested in draining his

lands, to clear a passage through all obstructions, wherever it would be

worth the expense of works and compensation.

Its general provisions may be found in the 15th Vol. of the Journal of

the Royal Agricultural Society.

It is not the province of the author, to decide what may properly be

done within the authority of different States, in aid of public or

private drainage enterprises. The State Legislatures are not, like

Parliament, omnipotent. They are limited by their written constitutions.

Perhaps no better criterion of power, with respect to compelling

contribution, by persons benefitted, to the cost of drainage, and with

interfering with individual rights, for public or private advantage, can

be found, than the exercise of power in the cases of fences and of

flowage.

If we may lawfully compel a person to fence his land, to exclude the

cattle of other persons, or, if he neglect to fence, subject him to

their depredations, without indemnity, as is done in many States; or if

we may compel him to contribute to the erection of division fences, of a

given height, though he has no animal in the world to be shut in or out

of his field, there would seem to be equal reason, in compelling him to

dig half a division ditch for the benefit of himself and neighbor.

If, again, as we have already hinted, the Legislature may authorize a

corporation to flow and inundate the land of an unwilling citizen, to

raise a water-power for a cotton-mill, it must be a nice discrimination

of powers, that prohibits the same Legislature from authorizing the

entry into lands of a protesting mill-owner, or of an unknown or

cross-grained proprietor, to open an outlet for a valuable,

health-giving system of drainage.

In the valuable treatise of Dr. Warder, of Cincinnati, recently

published in New York, upon Hedges and Evergreens, an abstract is given

of the statutes of most of our States, upon the subject of fences, and

we know of no other book, in which so good an idea of the legislation on

this subject, can be so readily obtained.

By the statutes of Massachusetts, any person may erect and maintain a

water-mill, and dam to raise water for working it, upon and across any

stream that is not navigable, provided he does not interfere with

existing mills. Any person whose land is overflowed, may, on complaint,

have a trial and a verdict of a jury; which may fix the height of the

dam, decide whether it shall be left open any part of the year, and fix

compensation, either annual or in gross, for the injury. All other

remedies for such flowage are taken away, and thus the land of the owner

may be converted into a mill-pond against his consent.

We find nothing in the Massachusetts statutes which gives to

land-owners, desirous of improving their wet lands, any power to

interfere in any way with the rights of mill-owners, for the drainage of

lands. The statutes of the Commonwealth, however, make liberal and

stringent provisions, for compelling unwilling owners to contribute to

the drainage of wet lands.

For the convenience of those who may be desirous of procuring

legislation on this subject, we will give a brief abstract of the

leading statute of Massachusetts regulating this matter. It may be found

in Chapter 115 of the Revised Statutes, of 1836. The first Section

explains the general object.

When any meadow, swamp, marsh, beach, or other low land, shall be held

by several proprietors, and it shall be necessary or useful to drain or

flow the same, or to remove obstructions in rivers or streams leading

therefrom, such improvements may be effected, under the direction of

Commissioners, in the manner provided in this chapter.

The statute provides that the proprietors, or a greater part of them in

interest, may apply, by petition, to the Court of Common Pleas, setting

forth the proposed improvements, and for notice to the proprietors who

do not join in the petition, and for a hearing. The court may then

appoint three, five, or seven commissioners to cause the improvements to

be effected. The commissioners are authorized to cause dams or dikes to

be erected on the premises, at such places, and in such manner as they

shall direct; and may order the land to be flowed thereby, for such

periods of each year as they shall think most beneficial, and also cause

ditches to be opened on the premises, and obstructions in any rivers or

streams leading therefrom to be removed.

Provision is made for assessment of the expenses of the improvements,

upon all the proprietors, according to the benefit each will derive from

it, and for the collection of the amount assessed.

"When the commissioners shall find it necessary or expedient to reduce

or raise the waters, for the purpose of obtaining a view of the

premises, or for the more convenient or expeditious removal of

obstructions therein, they may open the flood-gates of any mill, or

make other needful passages through or round the dam thereof or erect a

temporary dam on the land of any person, who is not a party to the

proceedings, and may maintain such dam, or such passages for the water,

as long as shall be necessary for the purposes aforesaid."

Provision is made for previous notice to persons who are not parties,

and for compensation to them for injuries occasioned by the

interference, and for appeal to the courts.

This statute gives, by no means, the powers necessary to compel

contribution to all necessary drainage, because, first, it is limited in

its application to "meadow, swamp, marsh, beach, or other low land." The

word _meadow_, in New England, is used in its original sense of flat and

wet land. Secondly, the statute seems to give no authority to open

permanent ditches on the land of others than the owners of such low

land, although it provides for temporary passages for the purposes of

"obtaining a view of the premises, or for the more convenient or

expeditious removal of obstructions _therein_"--the word "therein"

referring to the "premises" under improvement, so that there is no

provision for outfalls, under this statute, except through natural

streams.

By a statute of March 28, 1855, the Legislature of Massachusetts has

exercised a _power_ as extensive as is desirable for all purposes of

drainage, although the provisions of the act referred to are not,

perhaps, so broad as may be found necessary, in order to open outfalls

and remove all obstructions to drainage. As this act is believed to be

peculiar, we give its substance:

"An Act to authorize the making of Roads and Drains in certain cases.

"SECT. 1. Any town or city, person or persons, company or body

corporate, having the ownership of low lands, lakes, swamps, quarries,

mines, or mineral deposits, that, by means of adjacent lands belonging

to other persons, or occupied as a highway, cannot be approached,

worked, drained, or used in the ordinary manner without crossing said

lands or highway, may be authorized to establish roads, drains, ditches,

tunnels, and railways to said places in the manner herein provided.

"SECT. 2. The party desiring to make such improvements shall file a

petition therefor with the commissioners of the county in which the

premises are situated, setting forth the names of the persons

interested, if known to the petitioner, and also, in detail, the nature

of the proposed improvement, and the situation of the adjoining lands."

SECT. 3 provides for notice to owners and town authorities.

SECT. 4 provides for a hearing, and laying out the improvement, and

assessment of damages upon the respective parties, "having strict regard

to the benefits which they will receive."

SECT. 5 provides for repairs by a majority of those benefitted; and

Sect. 6 for appeals, as in the case of highways.

By an act of 1857, this act was so far amended as to authorize the

application for the desired improvement, to be made to the Select-men of

the town, or the Mayor and Aldermen of the city, in case the lands over

which the improvement is desired are all situated in one town or city.

It is manifest certainly, that the State assumes power sufficient to

authorize any interference with private property that may be necessary

for the most extended and thorough drainage operations. The power which

may compel a man to improve his portion of a swamp, may apply as well to

his wet hill-sides; and the power which may open temporary passages

through lands or dams, without consent of the owner, may keep them open

permanently, if expedient.

LAND DRAINAGE COMPANIES.

Besides the charters which have at various times, for many centuries,

been granted to companies, for the drainage of fens and marshes, and

other lowlands, in modern times, great encouragement has been given by

the British Government for the drainage and other improvement of

high-lands. Not only have extensive powers been granted to companies, to

proceed with their own means, to effect the objects in view, but the

Government itself has advanced money, by way of loan, in aid of drainage

and like improvements.

By the provisions of two acts of Parliament, no less than $20,000,000

have been loaned in aid of such improvements. These acts are generally

known as PUBLIC MONEYS DRAINAGE ACTS. There are already four chartered

companies for the same general objects, doing an immense amount of

business, on _private_ funds.

It will be sufficient, perhaps, to state, in general terms, the mode of

operation under these several acts.

Most lands in England are held under incumbrances of some kind. Many are

entailed, as it is termed: that is to say, vested for life in certain

persons, and then to go to others, the tenant for life having no power

to sell the property. Often, the life estate is owned by one person, and

the remainder by a stranger, or remote branch of the family, whom the

life-tenant has no desire to benefit. In such cases, the tenant, or

occupant, would be unwilling to make expensive improvements at his own

cost, which might benefit himself but a few years, and then go into

other hands.

On the other hand, the remainder-man would have no right to meddle with

the property while the tenant-for-life was in possession; and it would

be rare, that all those interested could agree to unite in efforts to

increase the general value of the estate, by such improvements.

The great object in view was, then, to devise means, by which such

estates, suffering for want of systematic, and often expensive, drainage

operations, might be improved, and the cost of improvement be charged on

the estate, so as to do no injustice to any party interested.

The plan finally adopted, is, to allow the tenant or occupant to have

the improvement made, either by expending his private funds, or by

borrowing of the Government or the private companies, and having the

amount expended, made a charge on the land, to be paid, in annual

payments, by the person who shall be in occupation each year. Under one

of these acts, the term of payment is fixed at 22 years, and under a

later act, at 50 years.

Thus, if A own a life-estate in lands, and B the remainder, and the

estate needs draining, A may take such steps as to have the improvement

made, by borrowing the money, and repaying it by yearly payments, in

such sums as will pay the whole expenditure, with interest, in

twenty-two or fifty years: and if A die before the expiration of the

term, the succeeding occupants continue the payments until the whole is

paid.

A borrows, for instance, $1,000, and expends it in draining the lands.

It is made a charge, like a mortgage, on the land, to be paid in equal

annual payments for fifty years. At six per cent., the annual payment

will be but about $63.33, to pay the whole amount of debt and the

interest, in fifty years. A pays this sum annually as long as he lives,

and B then takes possession, and pays the annual installment.

If the tenant expend his own money, and die before the whole term

expire, he may leave the unpaid balance as a legacy, or part of his own

estate, to his heirs.

The whole proceeding is based upon the idea, that the rent or income of

the property is sufficiently increased, to make the operation

advantageous to all parties. It is assumed, that the operation of

drainage, under one of these statutes, will be effectual to increase the

rent of the land, to the amount of this annual payment, for at least

fifty years. The fact, that the British Government, after the most

thorough investigation, has thus pronounced the opinion, that drainage

works, properly conducted, will thus increase the rent of land, and

remain in full operation a half century at least, affords the best

evidence possible, both of the utility and the durability of tile

drainage.

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