To Philip P. Barbour
Monticello Jan. 4. 13.
I see by the Enquirer of Dec. 24. that a petition has been presented to the legislature by the Rivanna company 1. to perpetuate their charter, or extend it to such term as shall seem most proper. 2. to provide for the annual appointment of Directors by the court of the county. 3. to empower the Directors to regulate tolls, not exceeding certain rates. this is the first notice I have of a petition to enlarge powers which being to be exercised almost wholly and exclusively within my lands & over my property cannot fail to be interesting to me. on each of the objects it proposes I will say a preliminary word. as to the 1st I hope no perpetuity will be established. it is an evil in all cases, and especially onerous when it affects the public right and use of watercourses. temporary powers, if they prove inconvenient, give opportunities of amendment at every renewal. but if their term is without end their evils will be so also. I hope then that the alternative proposed by the petition itself, of a limited term, will be adopted, and that this may not exceed 5. years, a term as long as their wooden locks may reasonably be expected to last, if they stand one winter’s freshes. the 2d proposition is a good one. and so is the 3d provided the power of regulating the toll be given to the court, instead of the company. but I observe that this petition proposes no protection for the interests of individuals whose property or rights may stand in the way of the company. and yet I am persuaded that while the legislature are making just provisions for 3. or 4. millholders on the river above, to give them it’s use, they will not prostrate before them the property and rights of those below. and this is all I ask. in order to recall to your memory the observations I made to you verbally when you were so kind as to examine the principal scene of these operations, I will here recapitulate them.
the navigation of the Rivanna, extended naturally from it’s mouth at Columbia, up to where it passes thro’ the South West mountains, that is to say to the Sandy falls, at the foot of the bed of the mountain. these are about 150. yards above the Shadwell mills, and a mile above the town of Milton. I say it extended naturally; because from the mouth up to the Milton falls, it needed a little help only, which had been given about 45 years ago by contributions of labor & money by the inhabitants to a small amount, of £200. as well as I recollect. and mr T. M. Randolph & myself, for about half that sum, had made a very practicable passage through the Milton falls, three quarters of a mile below the Shadwell mills, and meant annually in the dry season to work on & improve this passage. to this we were urged as being the adjacent landholders, & by our interest in these mills, to which the boats came habitually thro’ this passage. the real difficulties of the navigation therefore were from where the river enters the S.W. mountains at the Secretary’s ford, to where it issues from them at the Sandy falls. this is a space of about two miles & a quarter, within which the fall is between 20. & 25. feet. thro’ this whole space the lands on both sides are mine. about 56. years ago my father built a mill at the site of those now existing, which continued 15. or 16. years, until carried away by a great flood. I resumed the work on a larger & safer scale, and tho’ the difficulties of the canal exceeded every thing which could have been imagined, I persevered working on it from the year 1776. to 1806. with the intermission of 4. or 5. years only while I was in Europe, & here & there a year occasionally at other times; during which period I expended not less than twenty thousand Dollars on the Canal alone; and since that a great additional expence has been incurred in making it wide enough for the passage of batteaux, in erecting a solid pier head of stone of sufficient width & height of arch to admit them to enter, and in building a dam of about 400. feet long over a most powerful stream. this dam gives a sheet of dead water a mile & a half upwards to the Secretary’s ford at the entrance of the river into the mountain, and the canal continues it the remaining three quarters of a mile downwards, to the Shadwell mills below it’s issue at the Sandy falls.
Not to notice the acts of assembly of 1794. & 1805. which never went into execution, in 1806. an act was passed incorporating a company for the purpose of clearing & improving the navigation from Moor’s ford to opposite1 Milton, a distance of about 5 miles, within which however there was nothing to do, but what neighbors would have assembled & done, except in the 2¼ miles before mentioned from the Secretary’s ford to the Sandy falls. a subscription of about 3000.D. having been made up, & Directors chosen, they proceeded to their object. their first idea was to open the bed of the river, with a view to which I offered to cut my dam wherever they desired a passage thro’ it, & so soon as the passage below should be ready for use. but sufficient examination & trials of the obstacles in the bed of the river soon convinced them that a passage could never be opened along that which would be practicable without funds infinitely beyond what they had, or ever could obtain. the only alternative then would be a canal, which, had the ground been unbroken & in it’s natural state, & they authorised to pass thro’ it, my experience had proved would cost 6. or 7. times the amount of their whole funds. but my works were there ready done, the dam covering all the difficulties above it, and the canal leading over those below; & nothing wanting but a lock to let down the boats into the river at the foot of all the falls. they therefore asked leave to use my canal for the purposes of the navigation. I consented without hesitation, on condition it should be so done as not to injure my mills. whether the canal conveyed water enough for both was of course a question at their risk. they proposed to take the water from the canal a little above the mills, & there to place their locks. I objected to it for two reasons. 1. because whenever the lock gates should be opened they would intercept the current of the canal, draw it off into the locks, & retard or perhaps stop the mills, and 2. because the Canal banks were tender there, and if their locks should be carried away the bank would go with them, & lay the canal open to the river. this would not only require a new & artificial bank of great cost, but experience had proved that such an one could never be made tight. I offered at the same time, if they would place their locks below the mill (where there was a natural bason which might recieve as much water in the night as might work the locks thro’ the day) that I would release them from responsibility for injuries to my works. this they declined, and to guard against the risk of depriving the mills of their necessary water, they proposed to make the aperture into the lock so far above the bottom of the canal as to leave water enough for the mills, & to make a bason above which might hold an extra supply sufficient to fill the locks without encroaching on the mills. but both of these expedients have proved insufficient; besides which their lock gates are so illy fitted that they let as much water thro’ when shut as would carry a pair of millstones. the consequences have been that all this autumn we have been able to run but one pair of stones, that when the locks have been opened to let a boat down, that single pair has been retarded for half an hour, and when a boat is to come up, the locks could not be filled at all without stopping the mills entirely for an hour or an hour & a half. to this is added another evil. they have no keeper of the locks; & every boatman, whether he ever saw a lock before or not, throws open the gates at all hazards & so leaves them. and on a late occasion of a considerable tide in the river, the whole flood being let into the canal by an ignorant or careless boatman, overflowed the bank of the canal at the door of the upper mill, and acting directly on the foundations of the house, would in a few minutes more have undermined & thrown down the walls of the house which are of stone. To all these we have still to add it seems, the threat of a demand of toll for every thing shipped from my mills, as if it had passed thro’ the locks, instead of passing merely by them; the law permitting them to collect the toll at Milton, by which our flour2 must necessarily pass altho’ from below their locks. at the first meeting of the Directors I represented to them the enormity of this, that my mill could no more be held liable to toll for passing their locks than the other mills on this river below the mountains, or than those of the main river or of Richmond, all being on the same footing of having no occasion to use their locks. they agreed at once & unanimously that it was wrong, and that lock-toll ought not to be required of my mill. but since that I am assured that some of them at least have changed their minds, whether a majority or not I do not know. this would indeed be extraordinary—not permitted to float my own wheat, down my own canal, to my own mill without paying for it. I say, my own wheat, because whether purchased for cash or flour, it is equally a purchase, & makes it ours. this would be to use me as our forefathers, when they came here, used the Indian natives, who recieved them hospitably into their country, & then were turned out of it by their new guests. on their admission into my canal, they not only take my water from me, to fill their locks, but make me pay for passing along what they do not take. one would hardly believe this could be insisted on, yet I know3 it is urged by some members of the company, owners of mills, who wish to reduce the competition of mine to a level with theirs, by taking from it it’s natural advantage of being on the navigable part of the river. surely I ought not to be left at the mercy of such considerations. the former law (passed while I was absent from the state in public service, & ignorant of it’s passage) has done me a wrong by inadvertently authorising the collection of toll at Milton, a mile below the locks, as if every thing which passed there must have past the locks. the new law ought therefore to redress the wrong, by making the toll demandable at the locks, and only on what has passed thro’ them. to these facts let me add that, on their request, I gave them leave to get on my lands whatever timber they wanted for the locks: that nearly the whole has been taken from them, for which I never recieved, nor meant to recieve a cent: and I mention it merely to shew that so far from being disposed to throw obstacles in their way, I have yielded them every facility in my power; because I sincerely wish those above to have the fair benefit of the river according to their positions. I never opposed with urgency any measure of the Directors but that of locating the locks above the mill: from which I at length receded, unfortunately for them as well as myself, since from thence have flowed the dangers & difficulties to which I am immediately & they ultimately exposed.
These are the facts of the case. the Directors have explained their wishes to the legislature; I shall now explain my claims to their protection from wrong. 1. the new law should establish unequivocally the exemption of my mills from toll, by fixing it’s collection at the locks, and only on what has passed thro’ them. 2. with respect to their liability to me for damages, should my mill houses be carried away, the bank of the canal destroyed, or my mills be prevented from grinding by their taking away the water, I do not know that the law need make special provision. because I suppose that on the general principles of law every member of a company is liable in his whole fortune for the acts of the company; and that this is not prevented by their incorporation unless the incorporating act expressly declares that each shall be liable only to the amount of his subscription. if I am mistaken in this point of law, then the new act should expressly give this redress against the individuals of the company: for redress against their subscriptions when these have been all expended, would be but a mockery. the grounds on which alone they could claim a toll from my mill, are that they have done something in the river above it’s entrance into the mountain, and something at the Milton falls below it’s issue. between Moor’s ford and the Secretary’s there was a single rapid, out of which they have blown a few, and removed some other rocks, which the neighbors would have assembled & done with their common laborers in two, three, or a very few days, and actually had it in contemplation. and at the Milton falls mr Randolph & myself had already opened a strait sluice of about 60.4 yards length, down which loaded boats regularly passed without difficulty or danger. the ascent indeed for the returning boat is more laborious: but we should have continued improving it. the Directors however stopped this sluice and opened a way along an arm of the river which turns so suddenly round a small island, that loaded boats can with the utmost difficulty be kept from being dashed against the bank. it is true that their manager has carried a boat through to shew that it can be done: but it is equally true that one boat has been cast away there, others thrown ashore, and the danger has finally deterred the boatmen from loading at our mill, in consequence of which we have been obliged to waggon our flour to Milton. nor have they expended on this passage nearly what mr Randolph & myself had expended on our sluice. but if they take from us the passage we had made, have we not a natural right to use theirs? and can they make this trifle a pretext for levying toll at all, much less5 lock-toll on us? they talk of making locks at the Milton falls. but 1. they are not necessary. a safe & quicker passage can be had without them. 2. they have not the funds. 3. they have not the right. because their canal & locks must lead thro the adjacent lands of mr R. or myself, to which we have not yet given our consent—no law forces us to do this, nor ought to force it where it is not necessary, and in a case where other indulgences have been so much misused. 3. another very material attention in the new law should be to say nothing which can give them any right whatever in my canal, but to leave that as it now stands, on the footing of my voluntary consent. that consent was merely gratuitous. but, as in consequence of it, they incurred the expence of building locks there, they have a certain measure of right to use the canal. but this must be so exercised as not to deprive me of it’s use, or subject me to any injury to which I should not be exposed if they passed along the bed of the river. if they destroy or endanger my mills, take the necessary water from me, or interrupt my use of it for navigation or otherwise, I have a right to withdraw my consent & exclude them from the use. that consent went only to the surplus water. if the two feet which they proposed for their aperture above the top of the wheel do not leave me water enough, the aperture must still be raised. nor has any definite term of time been ever fixed to this permission, whether during pleasure, during the reasonable duration of their wooden locks, or how long. to all these questions I consider the ordinary courts as competent, & only desire that the new law may leave it on the footing on which the transactions between the parties have placed it. for this purpose I suppose the Proviso usual in these cases will suffice, ‘Saving & reserving to all persons, all their legal rights respecting the premisses, as if the act had never been passed’6 Etc. or to sum up my petition in fewer words, it is that after fixing the collection of toll at the locks, and on what has passed thro’ them, and inserting a Salvo of private rights, the law may avoid saying any thing which may take away those rights.
Colo Branham, one of the members of our county, is a Director of the Rivanna company, is a gentleman of truth & candour, & I appeal with confidence to him to vouch the facts which I have stated, at least so far as they lie within his knolege, and I am equally confident of his concurrence in every just provision for the protection of my rights. I would ask the favour of you to make a communication of this subject to mr Cabell our Senator, and to mr Johnson the Senator from Staunton who, tho’ not our immediate representative, is acquainted with the localities which enter into the case; and of all of you I ask nothing but to have done that which you think right. my view in troubling yourself and those gentlemen is solely that no injury may be done me thro’ inadvertence, that the legislature, acting on full information of circumstances, may be enabled to do justice, and to their decision I shall bow with perfect submission. confiding myself therefore entirely to your justice and friendly care, I tender you sincere assurances of my high respect & esteem.
P.S. I inclose a map of the river from actual surveys to give a clearer view of the situation of the different places named in this letter
PoC (DLC); at foot of first page: “Philip Barber esq.”; endorsed by TJ.
On 24 Dec. 1812 the Richmond enquirer summarized the petition, printed above at [ca. 5 Oct. 1812], as follows: “A petition of the Rivanna Company, praying the Legislature, either to perpetuate their charter, or extend it to such time as shall seem most proper, with the power, (after the subscribers are reimbursed,) of demanding sufficient toll to keep the navigation up, and to provide for the annual appointment of five directors, by the court of Albemarle county, to manage the concerns of the institution; that the present tariff of tolls may be reduced, and that the directors may have the power to regulate them, from time to time, so as not to exceed certain rates in the said petition mentioned.” Freshets (freshes) are floods or river overflows occasioned by heavy rain or melting snow (OED description begins James A. H. Murray, J. A. Simpson, E. S. C. Weiner, and others, eds., The Oxford English Dictionary, 2d ed., 1989, 20 vols. description ends ). The subscription to clear the Rivanna River about 45 years ago was initiated by TJ and later listed by him as the first of his public achievements (PTJ description begins Julian P. Boyd, Charles T. Cullen, John Catanzariti, Barbara B. Oberg, and others, eds., The Papers of Thomas Jefferson, 1950– , 34 vols. description ends , 1:87–8, 32:122). An act dated 30 Dec. 1806 created the Rivanna Company, which was charged with clearing & improving the navigation of the river from Moore’s Ford to Milton (note to TJ to Peter Minor, 30 Sept. 1810). One possible version of the enclosed map of the river, showing many of the locations discussed above by TJ, is a MS in ViU: TJP-ER, FC (Freudenberg-Casteen) no. 3131; entirely in TJ’s hand; undated.
1. Word interlined.
2. Preceding two words interlined in place of “I.”
3. Preceding six words written over an unreadable erasure.
4. Reworked from “50.”
5. Preceding five words interlined.
6. Omitted closing quotation mark editorially supplied.
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