1816. Dec. 27. The act of 1816. Feb. 13. c. 46. having been passed since the date of the preceding1 letter, it may not be amiss to bestow some thoughts on the present state of the subject.

What is the line of discrimination between the waters which may be exclusively private property, and those on which the public may have some claim? by the common law of England it is that at which the running, and the tidewaters meet. the latter cannot be granted by the king; the former may; and this was the law transplanted here. to them it was not an inconvenient one; because their tide waters penetrate deep2 into the island, while their running streams are short and small, offering little or no navigation. but here it was ill adapted to our running rivers, large, long, extending to the distant mountains, and even through them; and carrying practicable navigation to, or near, every man’s door. while these rivers continue broad, nobody, I believe, has thought their exclusive property worth the original purchase money, and perpetual payment of quitrents & taxes. but where they have become narrow, individuals taking grants of lands on both sides of a river, often preferred running the chain across at their upper & lower lines to meandring it with the margin of the stream on both sides. it is under this practice and this principle that we hold, as exclusive property, the springs we drink from, the branches which water our cattle, those which irrigate our meadows, the creeks and incipient rivers working the mills which grind our corn. the advantages of retaining for the public in this country the right of navigation in such of these streams as were navigable, or capable of being made so, were so obvious & so important, that the change of the English law in this particular was among the first which it was incumbent on the legislature to have made. the first step however towards it, which seems to have been taken, was after the change in our government, and by the act of 1780. c. 2. [repeated in 1792. c. 86.] which provides that ‘no grants issued for the beds of rivers & creeks,3 in the Eastern part of the Commonwealth, which have remained ungranted4 by the former government, and which have been used as a Common to all the good people thereof, shall be valid.’ acknoleging thus the validity of those already granted. the use of these was never reached by any act until the commencement of the present year, 1816. in the mean while they had interposed occasionally to authorise the opening particular rivers; governed however by no general principle, but moulding each law to the local circumstances, interests and passions mingled in the case; so that their practices have been sometimes contradictory, sometimes unjust. when at length they proceeded to adjust the limits between private & public right in watercourses, and to settle by a general law the future claims of each, it was impossible that a wiser or juster ground could have been taken. they do not resume the beds of the streams which have been granted, but only a right of navigating them; and as it would have been difficult to define the precise volume of water which should fix the point at which each stream should be declared to be exclusively & permanently private, they have given a substantial, & perfectly practicable definition. ‘wherever a watercourse is navigable, or whenever it may be made so, the right to use the water for navigation is retained to the public.’ until it is made navigable, or put under the process of being made so, it is private & exclusive; but after that the public have in it the specific right of navigation. this is a line therefore, not fixed by a demarcation, but varying with the varying state of society, advancing with the advance of our population & wealth, and penetrating further & further up our private streams, as the means increase of rendering them still further & further navigable. at present then the beds of the tide-waters are public property, those of running streams, where granted, are private property as yet, but subject to a possible, springing use in the public. but no part of either of these laws of 1780. & 1816.5 takes from the riparian proprietor any thing more than a joint use in the water. neither of them interferes with the works he has lawfully erected; neither imposes on him any ex-post facto burthen, or requires him to make locks, slopes, or canals to effect a navigation, where it did not before exist. that is left to be done by those who want it, & who are to be benefited by it; and, under the general principle of law, they are so to do it as to produce the least injury possible to those who have conflicting or joint rights. and in this spirit were formed the two laws of 1805. & 1806. which consign the effecting the navigation to a company, who purchase, at that price, the right to take a toll. neither that of 1805. which created a company, & gave a toll, nor that of 1806. which created another company, or6 toll likewise, imposes any burthen or obligation whatever on the owner of any dam already erected, but leaves the company to make their way as they can by private contract.

On the subject of7 these laws, to dispel the confusion in which the Statement No 8. involves them, representing them as being all now in force, and the benefit of all vested in the Rivanna company, I will give a view of them.

1764.   ‘An act for clearing the great falls of James river, the river Chickahominy and the North branch of James river.’   In 1763. (I was then not quite of age) learning that a canoe with a family in it had passed and repassed several times between Buckisland creek in Albemarle & the Byrd creek in Goochland, and that there were no serious obstacles below Adams’s falls (now Magruder’s) I went in a canoe from the Mountain falls (now Milton8) to Adams’s, and found that that section of the river could be made navigable for loaded boats by removing loose rock only. I set on foot a subscription, and obtained £200. Doctr Walker, our representative, got inserted in the act here cited a nomination of 11. trustees with authority to do what was necessary for effecting the navigation of this river from the mouth upwards. Roger & George Thompson then living on the river, undertook and executed the work; & on what was then done, the river was navigated habitually for9 40. years.

1794. c. 51. ‘An act concerning the clearing of the North fork of James river.’ the desire to extend the navigation from the Mountain or Milton falls upwards, produced in 1791. a new subscription; and in 1794. the act here cited, which it has not been in my power to see. but the rough draught of the subscription paper, still in my possession, informs me that the object was to name trustees, with power to receive subscriptions, & to ‘extend the navigation from the sd Mountain falls upwards as far as may be.’ but the subscriptions in this case, as in the former, were voluntary. no incorporation was asked, no toll. as in the course of 10. years following it was found that sufficient funds could not be raised as a free gift, a plan was adopted of forming by subscription a company, who should undertake the work, & receive a toll for reimbursement & profit. this produced the act of

1805. Jan. 30. c. 25. ‘An act to amend an act entitled an act concerning the clearing the North fork of James river.’ it appointed 42. commissioners to recieve subscriptions; authorised the subscribers to chuse 5. Directors ‘to manage the business of the association,’ and the Directors to call for the money subscribed, ‘to contract & agree with any persons for clearing & improving the navigation’ from Milton upwards10 indefinitely, to recieve certain tolls; and it repealed all acts within the purview of that, to wit,11 all acts providing for the same objects purviewed12 or provided for in this act. and as this act provided expressly for clearing the river from the Mountain or Milton falls upwards, that of 1794. providing exactly for the same thing, was hereby repealed, & the enterprise left to stand on this act alone.   Money was subscribed; but when the subscribers met, they differed as to the place of beginning the work. the lower subscribers insisted on beginning at the lower end, the upper at the upper end from a fear that their subscriptions would be exhausted at the lower end, and the burthen of extending upwards would be left on their shoulders alone, the purposes of the lower subscribers being once fully answered. this schism produced an abortion of the act. the lower subscribers withdrew, formed a new company, & obtained a new and independant law, confined to the navigation of the definite section of the river from Milton to Moore’s ford, a distance of about 5. miles. this was the act of

1806. Dec. 30 c. 55.13 and in order to exclude the subscribers of the upper schism from all interference, they dropped the term of ‘amending’14 in the title of the act and entitled it as a new & substantive ‘Act, incorporating a company to open and improve the navigation of the Rivanna river from Milton to Moore’s ford, opposite the town of Charlottesville in the county of Albemarle.’ it names 15. Commissioners only; in other respects is nearly a verbal copy of the preceding, but, further, incorporates the subscribers into a body politic, by the style & title of ‘the Rivanna company,’ enables them to sue and be sued, restrains them to the section from Milton to Moore’s ford, and repeals all acts within the purview of that. so that the whole of the preceding act, except the names and stations of the Commissioners, being verbatim included in this, was of course repealed. consequently it is not correct in the Statement to say that the acts of 1794. & 1805. were amended15 by that of 1806. they fell to the ground, were abandoned & extinguished by non execution, in the first place, and were moreover expressly repealed by that of 1806. the Rivanna company then have no existence as such, can claim no rights, nor authorities under any prior acts, but stand solely on that of 1806. which gave them their first existence, and on a subsequent amendatory act of

1813.14.16 ‘an act to amend the act intituled an act incorporating a company to open and improve the navigation of the Rivanna river from Milton to Moore’s ford opposite the town of Charlottesville in the county of Albemarle & for other purposes.’ changing the tolls restraining them to objects which pass thro’ their locks,17 and limiting the term of their continuance to Feb. 1. 1840. these two acts therefore of 1806. and 1813.14. constitute the charter, & the sole charter of the Rivanna company, notwithstanding the claims of the Statement to the benefit of the whole range of the laws which have been past for clearing this river.

It has been thought unnecessary here to notice the act of 1811. Jan. 29. c. 26.18 incorporating another company, by the name of ‘the Rivanna river19 company’ because that company was confined to the section from Milton downwards: nor, but to point out an inconsistency, another operation on the same section of the river. a sum of money20 was borrowed from the James river company to improve that lower section, and was repaid by donative subscriptions. Capt Meriwether was one of two or three trustees21 to employ it.22 Magruder did not own the bed of the river,23 and had erected a dam across it 20. or 30. years after the public were in full possession and daily use of the navigation. yet Capt Meriwether24 did not require him to cede the use of his Canal, to raise his dam, to build a lock, or to pay a sum equivalent to that and it’s perpetual maintenance; but, as a trustee,25 gave him26 500.D. for which Magruder undertook to build the lock; forgetting afterwards, as a Director,27 the homely, but moral adage that ‘what was sauce for the goose should have been sauce for the gander.’28