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each quarter, the number of days deficiency of channel and the location of the same, whether in the South Pass, in the jetty channel, or in the Gulf of Mexico.

“During the period of 'maintenance of channel by the contractors a formal report of operations for each month has been duly forwarded by the engineer officer in charge of South Pass to the Chief of Engineers.

"Upon the question here, in the reports for November, 1896, dated December 7, 1896, and for December, 1896, dated January 7, 1897, and for January, 1897, dated February 3, 1897, and for February, 1897,"dated March 5, 1897, all seasonably received at the office of the Chief of Engineers, the statements are identical, viz:

• The construction work was commenced June 2, 1875, and was considered completed July 8, 1879, on which date a channel 30 feet in depth without regard to width was secured. On the latter date commenced the period of twenty years' maintenance of a channel 26 feet in depth and not less than 200 feet in width at the bottom, and having through it a central depth of 30 feet without regard to width; and since that date such additional work as has been required to maintain the jettees and the required channel has been done.'

“The inspection upon which this report of February, 1897, was made, was on January 28, 1897.

“While this applies to the date of the act approved February 26, 1897, providing for closing the crevasse at Pass a Loutre, it may be properly said the same condition has been maintained by the contractor to this date.

- The crevasse in Pass a Loutre forms an outlet from Pass a Loutre into an arm of the Gulf of Mexico, known as Garden Island Bay. The situation will fully appear by reference to the map sent herewith (sheet 32), published by the Mississippi River Commission.

“ The banks of the passes are low, soft mud, brought down and deposited by the river itself, and only as high as floods build them. At high tide and high river the banks are overflowed nearly their entire length.

“The crevasse was caused by the wearing away of the narrow, low, south bank of the pass at a locality 14 miles below Head of Passes, at which point the water of the


Mississippi River divides and flows to the Gulf of Mexico through three “passes,' viz, the Southwest Pass, the South Pass (which is the one improved by Mr. Eads), and Pass a Loutre.

"In 1872 there was a ditch across the south bank of Pass a Loutre, from the Pass to Garden Island Bay, 3 feet wide. There is no record, so far as known, whether this bank of the Pass at this point was ever closed, or how long the ditch had been carrying water; but from 1872 it gradually increased from year to year.

“In January, 1891, the crevasse began to widen rapidly, but could not be checked on account of high water in the river. In July, 1891, it was $60 feet wide and 25 feet deep. In October, 1891, the representatives of Mr. Eads attempted to close it by a dam, but were unable to do so. Several attempts afterwards failed and the work was abandoned in 1894 by them. November 18, 1896, the crevasse was 2,230 feet wide.

“An appropriation of $250,000 was made by act of February 26, 1897, to close the crevasse by building a dam. The work progressed to practical completion November 13, 1893, but a heavy storm the next day washed out a part of the dam, so that now some 660 feet has been completely washed out.

“There has been expended of this appropriation $221,257.72. No later provision has been made by Congress to close the crevasse. An appropriation has been made to place a sill on the bed of the river, a few feet thick, to prevent the deepening of the water there.

“As to the effect of the crevasse upon the works or channel in South Pass, it may be noted that this crevasse is 11 miles away from any work done by Mr. Eads in creating the channel in South Pass, and the crevasse did not occur until twelve years after the contract channel had been created and accepted by the United States.

“In the Annual Report of the Chief of Engineers for 1997, page 1738, it is said:

"By reference to the profiles on Chart No. 6, the great improvement in the channel into South Pass will be appreciated, and the fact that the improvement from year to year shows the efficiency of the works which caused it, although they are not so extensive as when they were built.'

“In December, 1896, Maj. J. B. Quinn, engineer officer in charge of the works at South Pass, wrote to the Chief of Engineers:

“«So far as any injury to the depths in South Pass is concerned the surveys do not show any material changes which could be traced to this crevasse's influence.'

“As to the abandonment of the attempt to close the crevasse by the representatives of Mr. Eads, he says in the same letter:

*** Their abandonment of the work might also indicate that the result of their observations was to the effect that its existence was, after all, immaterial so far as the maintenance of their work was concerned, and no definite conclusion can be drawn from the condition of South Pass, since the required channel has maintained itself during the highwater seasons precisely as though the crevasse

did not exist.'

“It is only at low water that the required channel fails to maintain itself, and during such times the tides produce about all the current there is in the river, and the influence of the crevasse at such times would be immaterial.

"So far the apparent or prospective injuries to South Pass are purely speculative, since the evidences of decay existed before the crevasse occurred, and there is no precise data which indicates that its activity has had any pernicious results so far.'

“So that, concisely stated, the facts upon which the opinion of the Attorney-General is requested may be said to be:

“1. The contract with Mr. Eads was for securing and then maintaining for twenty years' actual time a certain channel through South Pass by such means as he chose to adopt. He was not restricted as to methods. Results only were contracted for, and the risk was his.

“This channel was secured July 8, 1879, and has been maintained by said Eads and his representatives up to this date, and since July 8, 1879, such additional work as has been required to maintain the jettees and the required channel has been done.

"2. Quarterly payments for this maintenance have been made by the War Department up to this date.

“3. The action of the War Department in accepting the work and making payment for the quarterly maintenance has been regularly reported to Congress.

* 4. The crevasse in Pass a Loutre was in existence in 1871 in a small way, and did not assume any substantial size until 1891.

** The attempt on the part of the representatives of Mr. Eads to close it was not because of any direction of the War Department, but an act of their own. Congress made the appropriation of February 26, 1897, to close the crevasse of its own motion.

" 5. Down to this date there is nothing official showing that there is any material change in the condition of South Pass which can be traced to the influence of the Pass a Loutre crevasse. Prospective injuries to the South Pass by reason of this crevasse are purely speculative.

*6. The statutory channel has been maintained by the representatives of Mr. Eads since 1891, to this date, in substantially the same manner, and with substantially the same condition, as before the widening of the Pass a Loutre crevasse.

“The twenty-year period for maintenance will expire, under ordinary conditions, during the early part of the year 1901, at which time payment of the remainder of the $1,000,000 originally reserved for maintenance ($500,000), will be due. It is desired by the representatives of the estate of the said Eads that Congress make appropriation of the sum mentioned at the present session.

“Ordinarily the only question that would be considered in providing for and making this payment, would be whether or not the said channel has been maintained in accordance with the terms of the contract. But an act of Congress, approved February 26, 1897 (29 Stat., 597), entitled 'An act to provide for closing the crevasse in Pass a Loutre, one of the outlets of the Mississippi River,' contains the following provision:

***Sec. 2. That nothing herein contained shall be held or construed to destroy or impair any right or rights of the United States arising under the acts of March third, eighteen hundred and seventy-five, June nineteenth, eighteen hundred and seventy-eight, and March third, eighteen hundred and seventy-nine, containing the contract or contracts between James B. Eads and such persons as might become associated with him and the United States, or to release the legal representatives of said James B. Eads or other persons associated with him, jointly or severally, from any obligation, expressed or implied, arising under and from said acts or other acts pertaining thereto: Provided, That nothing herein contained shall be held or construed to release in anywise the executors of the estate of James B. Eads as such executors, or the associates of said James B. Eads, jointly or severally, in whole or in part, from any liability which now exists, if any such liability does exist, for a failure to close said Pass a Loutre crevasse, and the question of such liability shall be referred to the Attorney-General for his decision; and should the decision of the Attorney-General, after a full hearing to both parties, be to the effect that the responsibility for the closing of the said Pass a Loutre crevasse rests upon the executors of the estate of James B. Eads as such executors, and the associates of the said James B. Eads, jointly or severally, under existing laws, then upon the completion of the twenty years' contract for the maintenance of the channel in South Pass outlet of the Mississippi River, as the same now exists, the Secretary of War shall withhold so much of the money then to be paid to the executors of the estate of James B. Eads as such executors, or to the associates of the said James B. Eads, jointly or severally, as shall have been expended under the authority of this act, until the same shall be judicially or otherwise legally determined in favor of such executors as such executors, or said associates of James B. Eads, jointly or severally.'

“The legal question, therefore, upon which the opinion of the Attorney-General is desired, and which is necessary before payment of the money that will be due at the expiration of the twenty-year period of maintenance can be made, is whether any liability rests upon the executors of the estate of James B. Eads as such executors, or the associates of

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