USA > Indiana > Newton County > A standard history of Jasper and Newton counties, Indiana : an authentic narrative of the past, with an extended survey of modern developments in the progress of town and country, Volume I > Part 22
USA > Indiana > Jasper County > A standard history of Jasper and Newton counties, Indiana : an authentic narrative of the past, with an extended survey of modern developments in the progress of town and country, Volume I > Part 22
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The pioneer settler and landowner was jealous of his rights, was equally bold in asserting them in court or out of court. So on the following day, September 23d, Algy Dean, John Darroch, Virgil Lamb and John Jenkins asked to intervene, and were permitted to file their joint complaint in the same proceeding and were made parties plaintiff to said suit. The case in the Circuit Court was determined on the pleading's, the complaint being held insufficient,
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and the plaintiffs appealed. James O'Reiley was not known by any person in this county. He never appeared personally in this case ; nor did his attorney make more than the one appearance, and that was at the time of the filing of his complaint. The local land- owners who intervened carried on the litigation thereafter.
William C. Wilson of Lafayette and the noted firm of Hendricks, Hoard & Hendricks, of Indianapolis, were employed by the local plaintiffs. The case on appeal is reported in the 32 Indiana Report, commencing on page 169. The case was reversed with instructions to the lower court to overrule the demur to the complaint and on September 5, 1871, an order to that effect was entered by the court below, the defendant was called and defaulted and an order entered enjoining the Kankakee Valley Draining Company from proceeding further in the premises. The opinion of the Supreme Court in that case contains a learned review of the law of drainage, and the power of the Legislature in respect to drainage, and no doubt the information condensed in this case helped to shape the future legis- lation of Indiana on the subject of drainage.
No further acts towards the improvement of the Kankakee are recalled until in 1881, when the General Assembly of the State authorized the governor to make a survey. This survey was made. Prof. John L. Campbell, of Crawfordsville, Indiana, was chief engineer and an elaborate report of that survey was afterwards made and established the fact, which was theretofore generally believed, that the removal of the rock ledge at Momence, Illinois, was the key to the drainage of the Valley of the Kankakee.
Thereafter in 1889 and also in 1893, two separate appropriations were made by the State, aggregating $65,000, which sum was applied towards the removal of the rock ledge, but was not sufficient to accomplish any practical result. Commencing in 1905, the gov- ernment made a general survey of the Kankakee which is called the Downey survey, N. H. Downey being the chief engineer and agent of the government in making it.
In the meantime, however, local interests put in action various drainage undertakings commencing at the head of the Kankakee in St. Joseph County, the result of which straightened and to some extent deepened the channel of the Kankakee to the east line of Jasper County, and numerous large lateral dredge ditches were constructed emptying into the river along the improved line. In a proceeding brought in the Jasper Circuit Court called the Marble Ditch, the river was by said court ordered straightened and deep- ened from the east line of Jasper County to a point in section I,
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township 31 north, range 9 west, in Newton County. The con- tract for the construction of this work was let and it is now in process of being constructed. The dimensions of the Marble Ditch at its terminus and for some miles up stream is bottom width 100 feet, with side slopes of bank one to one, and the grade of the fall of the Marble Ditch is one foot per mile. After the contract was let for the construction of the Marble Ditch a petition was filed in the Newton Circuit Court to straighten and deepen the Kankakee River from the terminus of the Marble Ditch to the west line of the state. This proceeding is known as the Williams Ditch and is now pending. Two reports have already been made and the second report was on August 7th, of the present year, set aside, other commissioners appointed and ordered to make a new report. The trial of this case commenced July 6th. During the progress of this trial a number of expert engineers were called as witnesses, including N. H. Downey, and on their evidence it was developed that the area, which has a run-off at Momence through the Kankakee River, comprises about 1,500,000 acres, and that a like run-off through the river at the state line between the states of Indiana and Illinois, drains from an acreage in Indiana of 1,181,- 737 acres ; and that the acreage in Lake County which has a run-off into the Kankakee River is about 55,000; that commencing about 1903, and continuing the improvement thereafter until about 1908, a continuous dike has been constructed commencing at the high lands north of the river and near the east line of Lake County and extend- ing thence southwestwardly towards the river and thence following the north bank of the river down stream to a point about one mile into Illinois; that this dike and the ditch caused by the construc- tion thereof practically prevents the flood waters of the Kankakee River from flowing onto the area protected by the dike, and within that area in Lake County a number of large dredge ditches have been constructed which have a common outlet into the river below the Illinois state line; that in this improvement including the dikes the landowners in Lake County have expended about $300,000.
It is also shown, and so appears in the record, that the surface elevation where the proposed Williams Ditch commences is 632.20; and the elevation of the grade line is 622; at the railroad river bridge at Schneider the elevation of the surface is 629.40, and the elevation of the grade line 619.48; and at the state line the elevation of the surface is 617.23 and the elevation of the grade line is 617.30. These last two measurements show the elevation of the bottom of the river and hence are practically the same.
/
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It was also shown that there is a rock moraine across the river about two miles west of the state line, the crest of which is the same elevation as the bottom of the river at the state line.
It must be kept in mind that elevations are assumed, and com- parative with each other, and sometimes compared with other recog- nized elevations. The differential elevations given by one witness were termed sea levels, and the elevations of the several points mentioned below are elevations of these points above sea level. At the railroad bridge at Schneider, where these elevations were taken,
THE WILLIAMS DITCH TRIERS, AUGUST, 1916
the surface of the water was 630.94; the surface of the water in the dike ditch directly north of the railroad bridge was 630.97 and the ground elevation was 630.89; while at the state line the water surface in the river was 625.26, the ground surface 626.13; the water surface in the dike ditch immediately north 623, and the water surface in the Singleton Ditch, the main outlet for the Lake County drainage above mentioned crossing the state line about a mile north of the river, was 622.68.
Eight hundred feet west of Baums Bridge on July 14, 1916, the sea level water surface was 653.30 and the sea level ground surface was 653.30, but at the time this elevation was taken the dredge was working in the river about a mile and a half below the bridge, and
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operated to obstruct the flow of water at the point where the meas- urements were made.
As a logical conclusion from the testimony of all these expert witnesses, the consensus of opinion is that effective drainage of the Kankakee Valley above the Illinois State line can and will be accom- plished only by the extension of the work through the Indian town, Moraine, and the rock ledge at Momence. This in time will be done, possibly in the Williams Ditch proceeding, and when effectively accomplished, will redeem, for agricultural purposes, an extensive area of land which is highly productive.
THE COUNTERFEITERS OF BOGUS ISLAND
"Any account of Beaver Lake," he says, "would be incomplete without reference to the counterfeiters who had their retreat on an island in the lake, and whose discovery there by the early settlers gave it the name of Bogus Island. Immediately prior to the year of 1839 the movements of strange men in strange ways about and in the direction of Beaver Lake, and the presence of counterfeit coins among the settlers created the suspicion that there was a band of counterfeiters located somewhere about the lake. In the year 1839 a party was formed at Buncum, now the town of Iroquois, Illinois, to discover and capture these offenders. The party was headed by a man named Aaron M. Goodnow. They approached the lake from the northwest, making their way in with team and wagon as far as they could; they converted their wagon box into a boat and con- tinued their journey to the island by water and captured three men, with a complete outfit for making counterfeit coins. These mien, with their equipment for counterfeiting packed in two trunks, were taken to the home of Jacob Troup, near Iroquois river and just above the Indiana State line. They were there tried by Wesley Spitler, then a Justice of the Peace, and bound over to Court, which was then held at Williamsport .. One of the men, named Crane, made his escape the second night after his capture; the other two, one of whom was named Fisher, were taken away by the Sheriff's posse, but none of them were ever brought to justice."
BEAVER LAKE LAND LITIGATIONS
"Perhaps the most interesting part of Beaver Lake history is an account of the title to the land covered by the waters of the lake. When the meander line of the Government survey was made, it
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necessarily created a number of fractional, irregular pieces of land that abutted on the margin of the lake.
"Early in the '50s, Michael G. Bright, then a prominent lawyer and politician of this state, bought and became the owner of all the fractional lots of land abutting on the margin of the lake, so that he owned a narrow strip of land extending entirely around and next to the lake. In the year 1857, he made a plat of these marginal lands and of the entire lake. In this plat he assumed to extend into the lake the outward lines of the Government survey, east and west and north and south, so, as he asserted they would, by due inter- section sub-divide the entire area into lots of forty acres each, which lots he numbered on this plat from I to 427. Attached to this plat he made a written statement, which after reciting his purchase and ownership of all the marginal tracts of land, contains this declar- ation of ownership:
"'And whereas, in virtue of being riparian proprietor of all of said lots and tracts of lands, I am, by operation of law, the owner and proprietor of the bed of said lake, and of all the islands covered by the waters thereof." This plat, with the declaration attached, was by him executed and recorded in the office of the recorder of Jasper County, afterwards transferred and recorded in this county, and Mr. Bright's claim that in virtue of purchasing about 2,500 acres of land he became the owner of more than 16,000 acres, then became a matter of public record.'
"Soon after this he brought a suit in ejectment against one Wil- liam C. Blake, charging in his complaint that Blake was in possession of one of the islands in the lake. While it is believed that this suit was collusive, and brought only to give to Bright's title the respect- ability of a judicial decree, yet attorneys appeared on both sides and elaborate briefs were filed. But Bright won, and poor Blake, who doubtless never saw Bogus Island, was ousted from it.
"About the year 1859, John P. Dunn, then being auditor of the state, deposited some of the trust funds of the state in the Metro- politan Bank of Cincinnati. This bank failed and Dunn thereby became a defaulter. Michael G. Bright was one of Dunn's bonds- men, and he came forward and generously offered to settle the deficit by turning over to the state enough of his Beaver Lake land to pay it. The matter was referred to a legislative committee. This com- mittee, of which the late Norman Eddy was a member, examined the land and examined the title, and the whole matter in printed form was reported back to the Legislature, and Acquilla Jones, then treasurer of state, was by the Legislature authorized and directed to
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take the conveyance from Bright in trust for the state, and to convey the lands to the State of Indiana. This was done, and Bright was relieved as a bondsman to Dunn. In making this conveyance Bright did not convey all the land, nor did he convey any large body of it, but conveyed each alternate forty-acre tract. In other words, he con- veyed to the state the even numbered lots and retained the odd num- ber lots, so that after this conveyance was made, the plat was like a checkerboard, the state owning the white squares and Bright the black ones. Matters rested thus until at the special session of the Legislature in 1865 an act was passed providing for the sale of lands in Newton County acquired by conveyance of Michael G. Bright and wife of Acquilla Jones, and by Jones to the state. When the state thus brought her land into market, Bright also placed the land retained by him on the market, and from 1865 to 1870 these lands were all bought, and the work of occupation and improvement was commenced.
"The purchasers of these lands never questioned the validity of a title so boldly declared by Bright and so openly dealt in by the State, with full knowledge of its character brought to the minds of the State officers and legislators, and this title was unquestioned until in the year 1871, when the waters had receded, much of the land had become apparently dry, and when the inhabitants of Beaver Lake felt that the dawn of prosperity had arrived, they awoke one morning to find small board houses on almost every quarter section of the lake bed then dry enough to be occupied and each of these houses had an occupant. A party of raiders, headed by the late Amzi B. Condit, and Parker Dresser, came from Chicago, and upon the theory that this was government land, they proceeded in the right to take possession and preempt it. Suffice it to say that the Beaver Lake settler of that day was not easily disturbed by a small demon- stration. The raiders were all arrested, some of them barely escaped being shot, and their board houses were taken and used for barns and cattle sheds.
"But this raised the question of the validity of Bright's title, and the matter was taken to Congress, and an effort was made to have Congress authorize a conveyance direct to the owners of the Bright title. After an exhaustive debate in Congress, this proposition was rejected, but Congress passed an act in 1873 wherein it was provided that the State of Indiana and her assignees, having drained and reclaimed what is known as the bed of Beaver Lake, in Newton County, Indiana, the same is hereby released and quit-claimed to Vol. I-15
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the State of Indiana. This settled the right of preemption, and as the owners believed, settled the title; but in this they were badly disappointed. In about the year 1879, Jacob B. Julian, then an attorney at Indianapolis, conceived the idea that under the Act of Congress of 1873, the State became the owner of all the lots of land in the bed of Beaver Lake that had not theretofore been conveyed by the State under the Act of 1865. Acting on this belief, he ob- tained permission from the attorney general to bring and did bring suit against the owners of these lands. One of these cases was tried, appealed and decided by the Supreme Court of the State against the holders of the Bright title.
"As soon as this decision was rendered, the owners of the land appealed to the legislature of the State, and in 1889 the legislature recognizing the strong equities of the then owners of the Bright title, by act of the General Assembly permitted them to re-enter the land of the State at the nominal price of 37 cents per acre. Thus it was that those who undertook to reclaim the waste of water and worthless land were forced to fight through all sorts of adverse conditions until they, like the title they acquired, became time-tried and fire-tested.
"Of the early settlers of Beaver Lake and that vicinity, becoming modesty forbids that I should say too much. If they were not, at all times, as good as their more fortunately located neighbors, it was not on account of a lack of good society, for during portions of the year they had for their companions preachers, lawyers, doctors, judges, mayors of cities, governors of States, politicians and statesmen. I will not say, however, that these gentlemen were always on their best behavior when they came to Beaver Lake to hunt and fish. In fact the conduct of the best of them was often so peculiar that it became proverbial with us that when a man, no matter how good, crossed Beaver Creek on his way to Beaver Lake to fish or hunt, he left much of his respectability there and took it up on his return, if at the time sober enough to do so. Nevertheless, under the influence of these splendid associations, I am satisfied that some progress was made by the early settlers of Beaver Lake region in the virtues of civilization, for as early as 1873, when the late Judge S. P. Thomp- son of Rensselaer was prosecuting attorney, and the late Charles H. Test was then presiding judge of the Newton Circuit court, it was then solemnly and judicially determined that the man who resided in the vicinity of Beaver Lake had a fair, average reputation for hon- esty and integrity, if he had never been caught stealing."
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THE BRANDON TRIAL
From John Ade's History of Newton County: "One day in the summer of 1860 I heard that a murder had been committed in Jack- son township and that the prisoner had been brought to Kent, he having been bound over by the examining justice. At that time the county officers were in temporary quarters in a store building front- ing the railroad, near the present site of the Fletcher blacksmith shop. I went from my office to the room in which the prisoner was said to be under guard, and there I found three of my old neighbors and friends-Elijah Shriver, Calvin Hough and Samuel Brandon. From my knowledge of the men, I could not believe it possible that any one of them would be guilty of the crime charged, and I was so much surprised that I believe I left the room without speaking to any of them.
"Shortly afterward I learned that Samuel Brandon was the one charged with the crime. He was taken to Lafayette and confined in jail to await the action of the grand jury. On Monday, August 27, 1860, agreeable to an order issued by Charles H. Test, judge of the 12th judicial circuit, the court met for the first time in Newton county, at Kent-Charles H. Test, judge; Zechariah Spitler, clerk ; Elijah Schriver, sheriff ; John L. Miller, prosecutor. After attending to some preliminary business the following named parties were ad- mitted as attorneys to practice in this court : William D. Lee, Albert G. Brown, George W. Spitler and Robert H. Milroy.
"It was ordered by the court that Elijah Shriver, sheriff, go to Lafayette and obtain the person of Samuel Brandon from the jailor of Tippecanoe county and bring him before the court now in ses- sion. The following persons were sworn to serve as grand jurors for the term: Ransom Elijah, William Harriett, Allen Park, Henry Rider, Young Thompson, Martin Crawn, George Stoner, Samuel Bard, John Smith, Nathaniel Ford and James Cowgill, who, after due deliberation, did on the 29th day of August, 1860, return an indictment against Samuel Brandon for murder :
"Following is from the record: 'Thursday, August 30, 1860- Court met pursuant to adjournment. Comes now John L. Miller, prosecuting the pleas of the state. Comes also the defendant in person and by Mace, Lee & Spitler, his attorneys. Comes also a jury, to wit : Nathaniel West, John Padgett, James W. Dodson, John Smith, Josiah Howenstine, Amaziah Board, Hugh Warren, Thomas J. Smith, George Herriman, Joseph Louthain, Charles Prue and Peter Shaub.'
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"The facts brought out at the trial were substantially these : Samuel Brandon and David Handley were neighbors, living in Jack- son township. Handley had a corn field near the residence of Bran- don, and one of Brandon's hogs got into the corn. In driving the hog out, Handley threw a stone at the animal and broke its leg. This irritated Brandon, who came running out to where Handley was, and, after a few words, demanded that Handley get on his knees and beg his pardon. Handley refused and Brandon shot him, causing almost instant death.
"The jury, after hearing the evidence, argument of counsel and charge of the court, returned its verdict into court as follows : 'We, the jury, find the defendant, Samuel Brandon, not guilty as to the first and third counts of the indictment and guilty as to the second ; and that he be imprisoned at hard labor in the state's prison for life.
NATHANIEL WEST, Foreman.'
"Whereupon the court did, on the following day, pronounce judg- ment against Brandon in accordance with the verdict of the jury and sentenced him to punishment at hard labor in the state's prison during his life.
"Brandon was not what you might call a bad man, but was pos- sessed of an ungovernable temper which brought sorrow and death to an innocent family and long years of confinement and remorse to himself. In his case was proven the truthfulness of the statement, 'He that is slow to anger is better than the mighty; and he that ruleth his spirit than he that taketh a city.'
"During the progress of the trial Brandon seemed to be perfectly indifferent as to the result, exhibiting no regret or sorrow for his deed. All those present at the trial remarked on this phase of his character. However, one evening during the progress of the trial, after the proceedings for the day were closed, he and I were by ourselves in a corner of the room, no others within hearing distance. He seemed to unburden himself. He told me he would give any- thing he had if he could only shed a tear, that he seemed to be burn- ing up inside and there was no way by which he could get relief. This satisfied me that we often misjudge others by seeing only that which is visible from the outside, not knowing what is going on within their consciences.
"In accordance with the sentence of the court, Brandon was taken to the state's prison at Michigan City, where he remained some fourteen years, when he was pardoned by the governor and returned to his old home. Here he died several years later."
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JUSTIFIABLE LARCENY
"I recall an interesting trial held at Morocco. James Moore had missed several hogs, and he suspected one of his neighbors of having stolen them. On searching the premises of the suspected party, evidence was discovered which satisfied Mr. Moore that his sus- picions were well founded. He then went to the justice of the peace, James Murphy, and swore out a warrant for the arrest of the sus- pected party. This warrant was placed in the hands of the constable, Thomas Starkey, who came to my house and asked me to go with him to assist in making the arrest. When we reached the home of the party we were to arrest we learned that he had gone away. Expect- ing to catch up with him in a short time, we rode on after him. We kept hearing of his passing certain houses along the road, so we kept on for some forty miles until we reached the town of Bradford. Here we caught up with him and arrested him just as he was getting on the train to go south. We stayed in Bradford over night and the next morning started for home. We went through Rensselaer, where we stopped for dinner, and at this point the man under arrest made arrangements with David Snyder, a prominent attorney of that town, to go down with us to Morocco and defend him at the trial.
"We reached Morocco after having been away two days, although we had not expected to be gone more than that number of hours. The court was soon in session and ready to dispose of the case. A jury was demanded and soon collected and accepted by the parties. Witnesses gave their testimony showing that the body of the miss- ing hog had been found in the house of the accused and fully identified. It looked as though nothing could be said or done to prevent the speedy conviction of the prisoner. David Snyder com- menced his plea to the jury by saying that in all new countries there were certain conditions and practices that every one recognized and accepted, the same being entirely different from the conditions existing in older settled portions of the country ; that customs long practiced in a community became of higher authority in determining certain cases than the mere letter of the law, instancing the estab- lished custom of going to the woods and taking the timber freely from lands owned by non-residents, placing under the same rule the right of every person to take a hog wherever found running at large. He said that custom made law and from time immemorial it had been the custom in this country to consider hogs as public property, and before a man could rightfully be punished for this offense there
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