, 1873-01-23
The CALUMET DAM.
The Obstruction Must be Torn Down
by the Commissioners.
Two Motions which Judge Will
Jams Will Sustain.

| A doat1l-blow was yeBsorlay struck nt tho Oau-
mot dam injunction, tho Court, Judge Williams,
minimizing his intention to pass i'll fayor of tho
demurrer aud motions that aro given below, ant
which will explain themselves. This lawsuit il
too we'll remembered by tho eitiznns Of Chicago
to Mood my letaifa in this column as to tho al
most historical circumstances thai gayo riae to
it. It is nuhicent to eay That 1t was brought by
parties who hold an agreement to uso tlloBurpua
water Of tho Calumet dam, againBt tho present
| Commissioners, to restrain them from tearing
down the la1n which has caused tho inunlation
Of largo portion Of Indiana. Correspondence
| aud negotiations botweon the authoritios
OF Indiana and 1llInols hayo bccn for n
long timo past proceeding, with tho Wow of al
arrangement Of matters, nnd tho result OF which
| was thnt tho Commissioners iuLin,atcl au inton-
tion Of pulling down tl,o work, but which in-
tontion was for n short tlno abandoned when
tho present oomplainants procured IN injunc-
tlon restraining my future notion Oh tho part Of
the Commissioners. It was III this that action
waB taken yesterday; ono Of Tie defendants on
tering q demurrer, the Canat Commissioners
moving to quash the return Of tho writ sumnlou-
Ing tlom rs parties to tho bill, and tho Attorney
General Of tho State Of Illinois moving to nhato
tho suit by the omission Of tho Commissioners
rs dofandantA.
N1r. George Z, Bailey appeared for tho COM
plainants and Alr. deorgo G. Campbell for tho
defendant Smith, tho Attorney General Of tho
stato aud the Canal Commissioners whose
names arc given below.
Tho defendant Smith, attorney, demurred to
the bill on various grounds. lilo bill sots forth
that Pfeffor aud Rose, together with Frank
Marchnizka, August Hamok, and Daniel o.
Robinson, (who are not parties to tha billy, en-
tered into IN agreement with tho Trustoes Of
the Illinois Il Michigan Canal, by which tho
Truateea leased to them, for q term Of fifteen
years with ngroomont to renew for furt],or
tiftoen years), MI tho surplus wator, to DO taken
from tho Calumet dan,; that upon tho lease
being made, land wna bought and I. mill erected !;
and tint conplainants aro nov owncrs Of said
ground and mill by purchase. To restrain the
tearing down Of this dam, by which such water
is thus secured to tho couplainanH, this bill
was brought against the Commissioners and 4
temporary injunction grantod.
The defendant donlurred that tho
bill docs not allego that either Of tho
parties to- tho agreo!nont hare Hola
their intorosts in suol agroomont to tho com-
plninantH, or assigned their imtercsts if sold and
that thoy arc parties to tho bill mud that thero
Ia no Buol avormeut in to bill Of n lea5o of wn-
tor-rowcr as will enable tho COURT to ascortnin
wIiather |. valid lcasa exists.
Tho counsel argucd, in support OF tho first
point, that in case Of assignments the person
having tho legal title in ting bubject msttor Of
fsndant, although llo has no benoficiary inter
est thoIoin 80 tlnt the Legal ssht nay be bound
further that II any interest romans in tho as
Eignor ho must ba joined rs 4 pnrty; that in tho
caue Of joint intoresta, joint obligations, and
contracta ctc, otc., I'LL tho joint contractors
dccroo; md that the objection may be taken nd
yantage Of by demurrer; from, all of which ho
dodNeed that AIarchnitxka, Hamols, aud Robin
Hon aro necessary parties to the bill.
demurrer, tho counsel quoted authorition to
show that tho power Of tho Trustees TO loaso
water power WAC u special and limited ono that
tho frat authority conferred by tho Doara of
Trustees to loaoo or dispose Of wator power wns
tlle act of February a. 1889, which authority, by
its terms, WAS confined to sales Of water power
to pointa on tho canal whore lots had boon or
1night bo laid OF for that purpose. No auch lots
woro ovuc owned by tho canal at Calumont.
Such aales E7ere to be by public auotion;. tle
reparatoly, aud not sold for loss than tho
appraisal. Tho lenso was to bo Under coal. Tue
records Of tho Board Of Trustees showed tint
on tla 9Th Of Of august l945, The canal apprainory
For wator sufficient for oach run Of mill
stones ~ feet in diameter, in tho
towns OF Lockport md Joliet, al 200, mud
Ut all otllor pointa, S750, Counsel obJeotei that
thoro WaH ITO ayormcnt In the bill TINT thoro
Wal, in fact, n leaao 1luder seal. It was stylod
tim agreement" md stated to hayo boon duly
executed. Tho Trustcoa wore not authorized by
law to lnako an agreement for tho rio OF
water power. Neither WAS the consideration al
loGod nor WAS tho agreement set Out. Thoro
wns lilo RYorment Of M appraisal Or TINT tho
water was not leased for lcas than tho appraisal
There was no ayornlo1!t TINT tho power was p,lr-
cAaaed at public auction.. Tho agreement did
not ppccify tho quantity of wator TO 10 used
ono Of tho requirements Of T. valid lonso. Tho
agreonent WAS alleged to have given tho oonl-
pla!nant tho right to use all the water not ro-
CURED for tho supply Of THO canal but tho
Irl.BtoeB wero not authorized oven to Lease
without specifying tho quantity to bo used.
consideration to bo, paid for tho uae Of tho
wator-powor, SO that tho Court could not de-
tormlno whetlor tho provisions Of the statute
weto complied with, 80 far ns tho consideration
was concorned. III other words, tho rcauiBitoa
for valid loAso aro as foIown;
An nplsaaal OF tho watoc-powor.
4 la!o ct public auction.
bid al loast equal to Tho appraisal
a do!intto amount Of water sold.
anu lease under seal, specifying tho nmount
to Ia uaod, the rato, otu.
10. ono Of which factY WAS ayerrol In tho bill,
Next the Conlm!ss|onora, Jouoph Utley, Virgil
iliekox, aud Robort Milno moved to quash tlo
roturh to tho writ purportol to hnyo been served
upon tho Uanal Commissioners. Tho coltnayl
nhow tLat tho suit was brought aganyt tho
Canal oomnlissloners by Tho Official titlos,
nnd was, therefore, d ault agaiugt tic
ssato Of Illinois not asaiust tic nartios au
Individuals, but officially; tho writ waH not to