Farm drainage Part 33

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 Ma.s.s.--Right to Flow; why not to Drain?--Land-drainage Companies in England.--Lincolns.h.i.+re 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 enc.u.mbered 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 a.s.sess.

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 a.s.sessed, 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-towns.h.i.+p 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 a.s.sessments 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 a.s.sess 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 a.s.sist 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 towns.h.i.+ps--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 a.s.sociated 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 gra.s.s 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 subst.i.tuted 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 ca.n.a.l 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 circ.u.mstances, 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 ill.u.s.trated, 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 pa.s.sage 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 const.i.tutions.

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 Ma.s.sachusetts, 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 Ma.s.sachusetts 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 Ma.s.sachusetts 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.