Iowa territorial gazette and advertiser. [volume] (Burlington, Iowa Territory [Iowa]) 1840-1846, 1842-12-24

lege cncronch upon the free navign.isn Of
the river: The defendant. contend for the
affirmative Of the rr,po.i,ion-,hat freedom
Of navigation includes u free privilege to
ferry-,hat an exclusive privilege can no
more be conferred TO navigate the river
la.itudinally than Observation-Disclosures, ii
the legislature can give charter 10 cross
the river perpen!icn'arly, they may also
grim, a sole privilege 10 traverse i, in IN
oblique direction, tha, ii would be impossi-
BILE 10 fix the degree Of obliqnity which
sh.ll limit their power in this particular,
and ,hn, therefore, il their right to gran,
the prcsen. charter be sustained, they may
mex, incorporate y company with the exclu-
siye right Of plying between this por. and
Galena.
For the comp:ainants on the othe: hand. !, is
contended that q charter Of this kind 10 not
IN infringement Of the rights guaranteed bv
tho clause in the compact above cited-that
the charter only prohibits others from ferrging
for hire-,lat any one has still the right 10
navigate the river in any direction for HE own
purposes and that it would be competent for
the legislature to grant similar charter to
navi gate between Burlington and Galcma. 1t
would be merely a police regulation and
would not prevent the river from being
common ~ snWhy.
This last position is certainly untenable.
VIVA, is common highway! Docs the mere
right Of travelling for certain limited purpose
es constitute IL! O! 10 il not.a,hcr necessary
for this purpose thnt any one should have the
right to travel thereon for any lawful purpose,
without question or hindrance! That IS
pursuit. may be either pleasure, or profit, or any
other legitimate object without the apprehen-
si"n Of being watched in his movements and
subjected TO legal vengeance, whenever he
there performs service for hire! The Nils.
sissippi would fall very far short Of my ideas
Of common highway forever free'i none but
those who had charters were permitted to en-
Joy the sacred right Of exercising their skill
and labor thereon tor fair compe usa'ion Un-
less therefore line Of distinction can be drawn
between the ferryiny across river. aud tho
Transportation o! persons and property lcnght-
wise OF the same, the case OF tbs complains
ants must tall 10 the g,ound.
Il seemed on til. other hand to be almost
admitted. by the closing argument for the dee
PENDANTS that ferries Of this kind might be lc-
gally chartered across any river lying wholly
y thin this Tertiary Ii that point were set.
tied should have no further difficulty in the
decision Of this ease. The compact OF 1897
declares tina, .sthe na.igable waters leading i,t-
TO the Mississippi and the ST. Lawrence and
the carrying places between the same shalt be
common highways and forever free. &c - This,
when extended TO our Territory, just as esfec
tually protects the Dcs Moines AID Iowa rivers
as the Mississippi itself, aud in terms much
more explicit aud express.
1t is tru, that our jurisdiction extends on
" to the middle of the Mississippi river where
as the chatter authorizes the grantees TO ferry
10 the opposite shore. That law. il is true. ,s
wholly imperative or olr half the river, bu,
it is valid ON the other II mi g,t Lave been
" holly th war,ed by the authorities OF Illinois.
Blu. when sanctioned aud contornsd Ivy the
proper !oca. powers on tho other side Of III
river il WAS complete throughout \ law is
no, rendered wholly invalid by reason OF the
legislature in some particulars having geo.
| ovaphi caiIy transcribed their jurisdiction. Al
act OF the lie gis'ature. though declared TO be in
,orv- p.:,. 4. Iowa and Illinois, would be OBJ
ligatory upon Us. The cna,,.. .....s.setoie 81
far az it regarded one half the ". ssissippi riv-
eE was just as valid as one granting terry
| across the Des MONIES.
Is then. the creation Of a ferry charter across
navgable ri butary Of the Mississippi, lying
wholly within our territory, an act of right.
full lesisiation!" Tne establishment OF pub
lie roads is q matter wh,liy under the control
OF the legislature 1t ia lett to their wisdom
TO devise the most ;udicious method Of laying
out andconssructlng those roads, and OF over-
coming any obetacle that may be encountered
in their rnut Although different views
might be entertained as to the true policy in
such cases, no one can, think, question the
legislative power To incorporate company
for this purpose, with exclusive privileges.
Docs that power cease whenever the road
meets navigable s,ream!-a very common
and etfectunl obstruction. Certainly not. The
mode in which the obstacle presented by q
nayiyable river . such q road shall be over
come, is as much subject TO the legislative dis
cretion Us the construction OF any other pOr-
ton OF TN. oad,-subisci however TO one con-
ditnn They must not obslr,tct the free navigation
IF the 1irer SO 40 10 prevent it from being IL
common h,gnway.' With this lin,i,atioa, they
may grant charter tor bridge or for ferry,
winch is but u floating bridge.
ferry then is but the continuation Of n
land highway across = nav:gable stream, and
DIFFERS widely f:om On exclusive right to nav
igate the stream lengthwise. II is not mos
nupoly OF facility but mode Of overcoming
an obstacle. lfthis could be accomplished BY
some aerial process, is there doubt Of the Leg
lslative right To giant charter tor th.t pur-
pose. Does it make any difference in pr,nci-
pie that the waters oil she rl"er are used for
that hicct, provided the free navi CATION OF the
same be not .n,criered with. Subject to this
restriction the river ls equally tree to all-ls
we'll tor the purpose OF continuing pubic
road across the same III the manner devised
by the Legislature us for any other object.
lne Mississippi river thenlS 10 DC reyafGed
in swollyh:s. As ailorliny an unequalieL I.
cilliy tor the transp ,yta,iun OF persons and
property from place TO place, il is one Of the
greatest blessings conferred upon she vast
valley through which II flows. AS such il u,
sacred from encroahmcnt. Neither Congress
nor the State or Territorial legislatures can
gran, monopolies or otherwise interfere with
the freedom Of navigation which has been
guaranteed by compact paramount TO any
ac. OF ordinary Legislation. The direction Of
that navigation 10 unimportant. Whether
lsngthwise or crosswse OF the stream il
must be left equally free. Where the river as
fvrds facility for transporting rock iron, q
quarry or timber from a forest on the Opposite
shore, It may be used ~ common highway
for that purpose by any person, tor hire " otE-
erwise in. defiance OF oil Legislation.
| but regarded as an obstruction TO land srav.
clling il u left tho wisdom OF the Legislature
10 Il evise means tor securing communication
between ITS opposite shores II they deem II
essential tor this purpose 70 grant u charter the
judicial power cannot nudity their acts A
natural advantage presented by the river must
not 81 monopOiizcd nor impaired. Hut whtrs
Il becomes necessary to create an arsiiicinl ta-
cil.ty for any purpose under the Legitimate
control OF the legislature. " 10 competent fol
them to grant an exclusive privilege ~ thai
/ facility when created. The right ut creating
the facility involves the right Of selecting the
mcans, subiect 70 the limitations above men
toned.
Il AZ ~Fn0a h