Virginia advocate. [volume] (Charlottesville, Va.) 1827-1860, 1830-07-09

cious condcscension in taking them under their |
peculiar care and luitioD"-apd again-The |
Board wish TO throw no impediments in tho way
owners of those Mills the rights of the public to
free navigation Of the Rivanna, and the eu,ire
monopoly OF the wheat trade of Automatic, sa-
yours too much OF Il colonial policy and demands
a sacrifice which cannot be made" These with
various other sentences of similar kind we
would not by any rude or inatvertent touch in
the way ofcommcnt, in the least degree mar or
disf ,urc but suffer TO remain in all their pristine
beauty.-Thc gentlemen IN the first place enter
into long investigation To establish this propro.
si,ion'tlat the ofthe water for the purpose of
navigation in all navigable streams belongs to the
public. The gentlemen very well know that
we have never denied or attempted TO question
the truth of this proposition, nor has been at all
embraced in the discussions between us. in rela-
tionto thecontemplated Improvement atShadwell
mills. As an abstract proposition we admit it to be
true in its fullest neutrality-suspicious. are also
made from two inquests taken at Mr.. Jefferson's
instance. The first taken in l795 said TO be i'm
MIR. Jeiiersons hand writing Not on any apuli.
cation for leave to erect dam but ouly to erect
a mill with view oftaking tho water out of L e
river by canal TO be cut out commencing above
ledge of rocks tor the purpose of conducting
water TO the mill. Now as Mr.. Jefferson did
not ask Tor leave to erect dam other obs,ruc
ton TO the water in the river and obtained none,
it followed of course that he acquired no right
by that leave to prevent the public, in any inn
provement of the river, from removing natural
distractions in the river as the ledge of rocks
for instance, or any stoppagcs which he might
pat i'll. And MIR. Jefferson no douh, Tor the simple
purpose of satisfying the Jury the public, that
he claimed or aimed at no advantage over the
public or right, which he did not aud could not
acquire, by the simple leave TO build mill with
out dam, inserted in tho inquest the clause quo.
ted in these words g but that if the river should
be opened for navigation hereafter the interest
(not right of the said Thomas ought to be post
poned to that object, an those authorized to
open the river should be free to make their open
ing in any part they think best, or of any stop
page which the said Thomas may have made"
that is to say, having obtained no lawful right
or leave to make any stoppage in the river that
any such stoppage made withou: leave might
be removed we'll as natural distractions
This opinion of Mr.. Jefferson was entirely in ac-
cordanco with the proposition above admitted to
be true. "That the use of the water for the
navigation in all navigable streams belongs TO the
public" as an abstract oposition-which also
implies the right to remove all natural or unaw-
full Instructions in the of the water. This
inquest is of no validity however being super
seeded by subsequent one and is only referred
Z a. . Ia
the correctness ofthe before stated proposition
but suppose Mr.. Jefferson had obtained leave in
the mode prescribed by law, at the same time to
erect dam across the river, as in flct he after
wards did, by an inquest also taken in the year
1903 How then would have stood the question
ofright as between him and the public? Had the
public then the right to abate the dam whenever
The nver might be opened for navigation Ger
tain'y not. The abstract proposition 4" that the
use OF the water for the purpose of navigation in
all navigable streams belongs to the public" then
becomes qualified, limited or restrained in this
that the public cannot abate The dam, or remove
1t, as an obstruction to the navigation, without
indemnity to the individual. 1t is admitted to
be true that individual rights are in all cases to
be postponed to public ones, but always with in.
4, demnity to the individuals in cases of previously
vested rights. Navigable waters are compared
TO high ways and the of both belongs TO the
public, or the idividuas of the nation, rs Mr. JET
! 1erson says In the quotations taken from his
works on The rights of the public TO the batture
at New Orleans, and is una nabe.-The public
have right to highways through every part OF
the territory Of the state but how are those
! highways to be had over soil the right to which
Is previously vested in individuals Certainly by
indemnity. And so if there be any previous YES
ted individual rights opposing or standing in the
way ct mitigation they must be postponed to the
| pubic, but with indemnity of course TO the indi.
viduai And on this principle there is no doubt
mat every mill dam on the Rivanna river may be
aoated u the public interest for the purpose of
| navigation require it, but with indemnity TO tie
/ owners OF the mills as matter of course This is
a mailer 81 clear that 1T is deemed useless TO
multiply Illustrations Of it-indeed it is so clear
tnat II is rather To be wondered at that the YEN
teinen should have thought it worth while to
en'eI INTO such tedious investigation 10 prove
IT, we come then TO the question as to what
were tho vested rights of Mr. Jefferson. He
had no doubt complete vested right to his canal
ana MUS because they were constructed and
built by his cwn lawful means on his own law
ful soil, and to his dam because it was erected bt
lawful authority obtained for that purpose, but
with an agreement attached In these words in.
serted IN the inquest Of 1865. :" 1t is further
understood by the Jury and agreed 10 on tho
part Oh tne SAID Thomas, that the canal shall be
u'eo as an improvement to the navigation in OK.
'e"o'ng the navigation from Milton upwards if
| mat shall be adjudged the most convenient
course This agreement it is said is tantamount
10 an express condition that the public shall
nave the use of the canal &of the same effect as if
mad been so inserted as an express condition
IN 'ne orcer OF court granting MIR Jefferson leave
70 build his dam and for The nrnsor, ILL.,. LII -