Student Activity Packet

Activity #7: The Sargeant's Trench Trial: A Play About Waterpower


Description

You will perform a short play focusing on an 1826 courtroom drama in which characters explain the problems and changes brought by the new textile mill, particularly those related to the environment.

Included are three maps that show the growth of industry on the Blackstone River.

Blackstone River circa 1792

Blackstone River circa 1796

Blackstone River circa 1836

Introduction

The question, "Who owned the river?" occupied the minds of many 18th- and 19th-century men and women. As industrialization began, as entrepreneurs built mills on New England rivers, arguments over water rights revealed a lot about how people of the time thought about nature and the environment. Most European settlers believed that the environment existed so that human beings could use it to make a profit. But which individuals should profit from the nature that seemed available to everyone? And, in the end, would unthinking domination of nature cost more money than it generated?

In the court case dramatized in the "The Sargeant's Trench Trial," a community debates just these issues. Small mill owners claim that more powerful and richer factory owners controlled the water, using so much to turn their big water wheels that the smaller mills downstream didn't have enough power to run their operations. Since 95% of all mills were still powered exclusively by water, Judge Joseph Story, Superior Court Judge in the state of Rhode Island, realized that he was setting precedent for future water rights cases when he wrote the 1826 decision for Tyler vs. Wilkinson, commonly known as the Sargeant's Trench case. To prove that water rights were tied to other environmental issues, you should know that the stretch of river being argued over had been named Sargeant's Trench for the 18th-century farmer who had cleared it of building debris so that fish could continue to swim upstream to spawn. All uses of the river had an impact on its ecology.

The country watched the case closely--so closely in fact that Judge Story felt he should write the final account for the newspapers rather than trust the interpretation of reporters. The final apportionment, however, was not decided until 1836, after an engineer had determined the historic division of water rights and applied that finding to the existing mills. You will discover that the case raises many issues about 19th-century society besides water rights issues. Issues of class, wealth, the right to work, and the impact of the War of 1812 on economic growth all affected people in their everyday lives.

But you should consider the ideas about nature, and about science and technology, that those involved in early industrialization were working out. Who benefits by our manipulation of the environment? How can we strike a balance among competing interests and between human needs and environmental protection? Are there technological answers to environmental problems? Although we are not necessarily fighting over water rights today, our communities face similar issues. There are fierce debates over the placement of nuclear power plants and incinerators, and although environmentalists and industrialists are the most public figures in the debates, the issues affect us all. We can gain some insight into these contemporary debates by understanding where and when they began -- in the early 19th century when the United States first industrialized.

Cast of Characters

Narrator--sets the scene and has the last word.

Judge Joseph Story--a stern, fair-minded judge who knows just what this case means in legal history.

Defendants

Moses Brown--a powerful, 86-year-old industrialist and philanthropist, he was involved in the 1792 water rights case. He feels the issue was fairly resolved then and believes the case is now muddied with other issues.

Abraham Wilkinson--a millowner on Sargeant's Trench accused by Jenks and Tyler of allying with the large millowners to gain a larger share of waterpower. Mr. Wilkinson is a talented inventor and mechanic; there is evidence that Robert Fulton stole his invention of the steamboat from Wilkinson.

Plaintiff

Benjamin Jenks--with Tyler, the principal plaintiff of the case. The Jenks family settled on the banks of the Blackstone River in 1671, and Jenks, as did his father before him, resents the power of the newcomers. He is furious that the large millowners have allied with the millowners on the trench to divert more than their fair share of water.

Witnesses

Benjamin Cozzens--67-year-old man who once owned a mill on Sargeant's Trench. He recalls that there was never enough water.

William Daggert--a laborer for Mr. Wilkinson and Mr. Jenks, this man remembers having to begin work at 2 am to ensure there was enough water for all mills. Note: The oil mill he and Mr. Peck refer to processes flax seed into oil.

Cyril Peck--73-year-old Mr. Peck ran a mill on Sargeant's Trench for three years. He remembers the days when millowners cooperated.

Townswomen

Eliza Powers--a crusty 80-year-old woman who has seen many changes. She remembers the time when water ran pure and when fish were abundant.

Constance Pickers--a gentle 45-year-old woman who is grateful to the millowners for employing her and her children when her husband died.

Martha Howe--this elderly woman is not afraid to speak her mind. She questions the benefits the large mills have brought to her community.

Journalists

Reporter from Massachusetts Spy: self-assured, well-mannered, this young reporter is eager to do a good job covering all the issues.

Reporter from Niles' Register--a bit abrasive and arrogant, this reporter is actually quite knowledgeable about the issues.

Reporter from the New York Times--a quiet fellow, he has more questions than answers.

Reporter from New Haven, CT--assigned to the case at the last minute, he tries desperately to figure out what the hoopla is about.

Script

Scene I. Date: 1826

Narrator: It is 1826 in Pawtucket, RI. We are in a courtroom presided over by Judge Joseph Story. The courtroom buzzes with conversation as the various onlookers express their points of view about an upcoming trial, popularly known as the Sargeant's Trench case. Several of the people present have worked for the millowners who will testify; others have had their farmlands and fishing spoiled by the explosive growth of the mills along the river. Since 95% of all mills were still powered by water, this was a case of great magnitude. Judge Joseph Story realizes that he is setting precedent for future water rights cases. But the Sargeant's Trench case also raises other issues important in 19th-century society besides the fight over waterpower. Listen and try to understand what the people in Pawtucket thought about work, the War of 1812, child labor, mill owners, and the impact of the new factories on the environment.

Eliza Powers: {grumbles in a loud whisper to her neighbor} I hope Judge Story fines these large millowners what they can assuredly afford to pay. My once-clean well water is running red and blue because the cotton factory empties dyes into the river.

Martha Howe: {sardonically}Not to mention the waste from the toilet towers that empty into the river all day long!

Eliza: {sarcastically} That certainly helps the folks downriver.

Constance Pickers: {gentle in her response} Oh, ladies, you know the dyes won't hurt us or the animals. As for the waste, well . . . none of us has taken ill yet. Why do you not trust what they tell us?

Eliza Powers: {disgusted} Constance, you young people cannot remember the days when the water ran pure, when there were no factory bells to call you to work, when people labored by the season and not by the long hours set by the owners. Factories are there to make profits, not benefit the town. Who in this town has fine imported brocades on their walls and silk for their draperies?

Constance: What you say may be true, Eliza, but I was grateful for honest labor and safe housing the factories owners provided when my husband died. The children and I could not have managed the farm alone--and of course the law did not even permit us to remain as the property passed to my husband's brother. Rather than depending...

Eliza: Depending--that's what the lives of women and children hang on! Someday women are going to demand fair treatment under the law. When a man dies, his wife and children should not be displaced, to go to the poorhouse, to the millhouse, or to relatives.

Constance: Eliza, you may well be right, but that time has not yet arrived. So until then we must either depend on the kindness of neighbors, or be grateful for the work in Samuel Slater's mill. Even my little ones who were only six and eight years of age were able to earn $.25 each day. They performed simple tasks, watching the spindles, changing the bobbins, and sweeping the floors. When they weren't busy they enjoyed playing with the other children; it was not as lonely a life for them as it was on the farm. There were 100 other children, between the ages of four and 10 years, employed when we were there. When I wasn't tending to the cotton machines, I helped watch over the children to make sure they didn't nod off and catch their fingers in the machinery.

Martha Howe: {who cannot keep quiet any longer} Constance, did you save any money, or did you simply earn enough to buy food and dry goods for your children at the company store? Sam Slater and Moses Brown are rich men today; their money is earned from the labors of children like yours.

Constance: {wearily} You are obviously right, Martha, but there are many ways of looking at work (pause)... and hunger.

Martha Howe: {kinder in her response to Constance} Hearing the cry of hungry babies is painful, Constance, and for that many of us from farming families welcomed steady work. But what Eliza is remembering is that as young girls we were able to supplement our diets with fish that no longer spawn in these rivers. We ate salmon and shad all through the spring and summer months, and smoked fish carried us over in the winter. Not any more. We just don't see salmon, shad, and bass the way we used to. The swift running waters, the high dams, and lack of a fish ladder prevents them from scaling the falls. Once Sargeant's Trench served as a fish ladder, but not any more.

Eliza: Remember that water rights trial in 1792, Martha? Didn't the judge agree that it was right for the men to remove the logs from the old dam when it was fish spawning season so the fish could swim upstream? Those millowners were not pleased to have their dam tampered with.

Martha: {to her two friends} To be sure, Eliza. They were not pleased either when the town purchased a clock in 1819 so that we could control the time and not they. Ah, we find our little ways to take charge of our lives, but they always seem to win the big battles.

Eliza: Remember when the workers protested the cut in wages and the increased hours when raw cotton prices soared? The owners certainly didn't want their profits to diminish. After all, except for the highly skilled mule spinners--all men, of course--workers are easy to replace with others eager for jobs.

Martha: There are many reasons this courtroom is crowded today. This is not just a power struggle over who gets enough water for their mills, but part of the ongoing fight between the larger upriver millowners and smaller millowners situated downstream. How I wish I could testify!

Constance: {quietly but with determination} Martha, you know women cannot testify. You will simply have to hope your friends Tyler and Jenks win, Martha. But if they do there are many towns that would welcome the relocation of the strong Almy-Brown investment partnership. I understand that some towns encourage factory building by providing free land, reduced taxes, and plans to expand transportation systems.

Martha: {heatedly} You may defend these factories, if you will, Constance. I don't deny your reasons, but factories have brought problems as well as solutions. I don't dispute the benefits of the new machinery; I appreciate the many fabric choices we have for little enough money. But to deny the changes the factories have brought is foolishness.

Eliza: {breaks in} I must confess however that my patriotic bones revel in these American-made goods and not those of the British. It is hard to believe we once paid 40¢ to 50¢ per yard for British cloth that we now purchase for just 9¢ per yard. {At this moment the three women are distracted by the arrival of well-dressed men who, by their airs and attitudes, are clearly from the city. Their loud voices carry even to the balcony of the courthouse. It is clear from their behavior that lunch included a little wine.}

Reporter from the Niles' Register: Gentlemen, it's good to see you here again. My editor tells me that this case will be precedent-setting, determining how water-rights cases will be decided in the courts from now on.

Reporter from Massachusetts Spy: My understanding is that 30% of all court cases revolve around water rights issues. That's certainly a change from 30 years ago, when there was enough water to run everyone's mills.

Reporter from the Niles' Register: Did you know Britain went through the same thing years ago? This new industrial age is surely bringing new problems. Although when I visited the factories at Lowell I was quite impressed with the intelligence of the young women, their thriftiness, and their determination to become educated by attending musical concerts, lectures, and readings. They even publish their own literary magazine.

Reporter from the New York Times: Lowell is the future, gentlemen. Many feel we will avoid the pitfalls of the British system and keep our towns clean and our workers honest. Others fear that workers are giving over their time to the bosses and losing their craft to the machine.

Reporter from a Hartford, CT paper: Gentlemen, I do not mean to intrude into your discussion, but before Judge Story enters I need to ascertain the particulars of this case. Kindly enlighten me.

Reporter from Niles' Register: How far back do you want to go? This case has roots back to 1714 when the channel around the Blackstone River--now referred to as Sargeant's Trench--became filled with debris, preventing the fish from swimming upstream. Permission from the authorities was obtained, and a Mr. Sargeant did the actual work of dredging the trench. Four years later the building of a dam, which provided sufficient waterpower for the grist and fulling mills, necessitated a discussion of water rights by the three mill owners involved. William Jenks, Eleazer Jenks, and John Bucklin agreed to a general division of water rights.

Reporter from Hartford: What were the terms? Will they still influence Judge Story's decision over 100 year later?

Reporter from Mass. Spy: Correct me if I am wrong, Jacob, but as I recall the mills on the trench were given equal rights with the sites on the river. This agreement worked well, even with the continued growth of new mills, until 1760, when the trench became blocked again. Millowners along the trench suffered and wanted the state assembly to pay for clearing the debris. Farmers as well as mill owners wanted the trench cleared, but their motives were different. Farmers saw the passage as necessary to continued fishing opportunities; the Assembly declared that no one had the right to block the fish's passage upstream.

Reporter from Hartford: Pardon me, sir. Are the rights of the fishermen still an issue in this particular case? Does a decision made in a farming community affect this modern industrial town?

Reporter from the Spy: That's what many are wondering as we go into this case. The rights of the farmers are less visibly in question and are certainly not part of the lawsuit. Make no mistake, however; they are part of the underlying dissension.

Reporter from the Niles' Register: Pawtucket prospered because access to waterpower enabled entrepreneurs to build mills easily and inexpensively. The court case before us today involves families who have been here a long time. Although none has been here as long as the Jenks family, the Wilkinsons settled in 1780 to establish a fulling mill and blacksmith's works. Others came to establish tanning mills, saw mills, nail cutting mills, and a flour mill. They prospered while there was sufficient water for all.

Reporter from the Times: My understanding in going through the records is that the first significant conflict over waterpower came in 1792, when the Wilkinsons merged with the powerful businessman Moses Brown to build a cotton mill at the top of the pond. To provide enough waterpower for their mill, they built a new dam 300 feet upriver from the previous one. Stephen Jenks, who still milled downriver, worried that Brown would try to control their flow of water and tore the dam down.

Reporter from Hartford: Seems to be an extreme response, doesn't it? What was the upshot?

Reporter from Niles: Brown and Wilkinson had the dam rebuilt and the court, in its decision, assured all that water flow would not be regulated to the favor of the upper dam and Sargeant's Trench owners. A gate was set at the top of the dam to regulate flow. Peace was only partial, however; Wilkinson appointed himself as gatekeeper. You can imagine how Jenks felt about this!

Reporter from Hartford: What did Jenks do? Tear it down?

Reporter from the Times: Absolutely! He destroyed it in 1805 in a fit of rage.

Reporter from Niles' Register: This issue has been seething that long? No wonder the town has taken sides. Will the parties today . . . {His sentence is interrupted as the bailiff announces the judge's arrival in the courtroom.}

Bailiff: Hear ye, hear ye. All rise for the Honorable Judge Joseph Story.

Judge Story: Be seated, please. Since this is a hearing only, I will be asking questions of the witnesses. I have reviewed the decision of 1796 carefully, and my questions to the witnesses will refer to the events of recent years as well as those of the early 1790s.

Will Benjamin Jenks please take the stand.

{Benjamin Jenks is sworn in.}

Judge Story: Mr. Jenks, you seem to have ignored the agreement made in 1796. Why have you and Mr. Tyler brought suit against Mr. Wilkinson?

Benjamin Jenks: Your Honor, it is clear that Mr. Wilkinson is in cahoots with Mr. Brown to take more than their fair share of water. This should come as no surprise to those in this courtroom who remember as do I that Mr. Wilkinson's father appointed himself as gatekeeper in 1796. Who asked him? Who appointed him? As a millowner on the upper dam, he infuriated us with his condescending ways and pompous control of what the court--and the Lord--gave to us all. I felt justified in tearing the gate out some years later to let the water flow as it would, and (looking defiantly ) I would do it again.

Judge Story: Court decisions are made to be binding to serve all the needs of our community. But taking the law into your own hands leads to havoc. What do you see as a solution to the present difficulties?

Benjamin Jenks: Judge, there was always enough water for us all until these large mills required more water than the river could supply. Of course, the recent drought brought this to a head, but there is clear evidence that they deepened the trench over the years to siphon off more water from the Blackstone River to power their larger and larger mills. This reduced the flow to us lower-dam owners. The solution? Have those wealthy merchants invest in steam power. Leave those of us without investment capital--blood money from wage slaves, if you ask me--to use the water as our ancestors did.

Judge Story: Thank you, Mr. Jenks. We reserve the right to ask further questions as differences of opinion are raised by other witnesses. Will Mr. Cyril Peck please take the stand? {Peck does so.} Please state your acquaintance with the case.

Cyril Peck: Judge, I am in the 73rd year of my life and I have been acquainted with Pawtucket since I was 12 years old. It must be 40 or 50 years ago that I hired Jonathan Jenks's land for three years. The land was right on Sargeant's Trench.

Judge Story: The principal issue in this hearing concerns the availability of water in the river and the trench. What did you experience in the 1770s and 1780s?

Cyril Peck: When the owners on Sargeant's Trench were scant for

water, they cleared the trench and directed more water to turn in from the dam. To the best of my recollection, they were not stopped from doing so by the Jenks brothers. In fact, the Jenkses had worked out an agreement about use. That's how everyone worked. The Wilkinsons' oil mill, for example, was not allowed to run more than 10 months a year; I remember that it would stop when the grist mill wanted more water.

Judge Story: Was the trench used for any other purpose in these early days?

Cyril Peck: In the early days, before the new dam was built, the trench was maintained to let the fish pass up the river. Now, of course, we don't see the number of salmon, shad, and bass the way we used to.

Judge Story: Thank you, Mr. Peck. You have helped to give the court a broader picture. You may step down. The court will now hear from Benjamin Cozzens of Attleborough, Massachusetts.

Mr. Benjamin Cozzens is sworn in.

Judge Story: Mr. Cozzens, please state your profession and your recollection of the amount of water available for the mills while you lived in Pawtucket.

Benjamin Cozzens: In 1780 William Jenks sold me land and a shop on the upper Trench. My object in purchasing that privilege was to erect a fulling mill, which I did. In the dry seasons when the waterwheel and the bellows wheels were going, there was not enough water to drive the fulling mill. Frequently in spring season we would have to clear out the Trench to get water to flow more freely down it.

Judge Story: Were others interfering with the water flow?

Benjamin Cozzens: No, your honor, there simply was not sufficient water to power all the mills. Frequently I had to full my cloth at night. To run the iron mill, we had to blow the bellows by hand. Sometimes we laid a log across the river to turn more water into the trench. If the lower dam people were pinched for water, they would simply pull up the logs. Even though the late Capt. Stephen Jenks and I could never agree, things seemed simpler in those days.

Judge Story: Let me clarify something. Do you recollect the width of the Trench? As you know, the larger cotton-mill owners have been accused of widening Sargeant's Trench to siphon off water for their flumes.

Benjamin Cozzens: To my best recollection, the trench was not more than four or five feet wide. The gate regulated the flow into the trench. Mr. Jenks and I did not always agree how much water would flow through the gate.

Judge Story: One last question, Mr. Cozzens. In your opinion, have the large millowners, as accused, taken more than what they are entitled to?

Benjamin Cozzens: Your honor, I cannot say for sure. Since no certain amounts were set in the 1796 court decision, it does make the present-day case difficult. What I can say it that we had dry times before and insufficient water supply. But the issues are complicated. The townsfolk are upset about unclean water, and they aren't all happy about the kind of work they do in the mills--especially the women and children. Owners of small mills feel like the big owners control everything in the town, from the river to the politics.

Judge Story: Thank you, Mr. Cozzens. You have been most helpful. You may be excused. The court will now call Mr. William Daggert to the stand.

{William Daggert is sworn in. Judge Story begins the questioning.}

Judge Story: Mr. Daggert, you have had many years' experience working in Pawtucket. Please state your profession and your areas of expertise.

Mr. Daggert: Judge, I was first acquainted with the shops on Sargeant's Trench in 1782. In 1801 I began to work at David Wilkinson's oil mill. I helped clear the Trench after the 1807 flood had enlarged it, and I helped repair the flumes for the individual mills, and never did I hear complaints from owners of lower dam mills about this right. We all know these lower mill owners are just jealous of the others' success. The Jenkses were here first, and they think they're mighty fine. If you ask me they just made some bad choices and now they want the court to fix it for them.

Judge Story: Thank you for your opinion, Mr. Daggert, but would you please stick to the question? Was sufficient water available year round? Have you seen a difference in the last several years?

Mr. Daggert: Judge, I cannot speak for the last 10 years, but before that I can state unequivocally that there were times that I had to begin the oil mill at 2 am to do my day's work so that the blacksmith shop could have sufficient water when they began at 3 pm. Water was available to us all if we all found a solution together. That's not likely to happen now.

Judge Story: Thank you, Mr. Daggert, for your thoughts and recollections. You may step down. The court now calls Mr. Moses Brown.

{Moses Brown, a Quaker, cannot be sworn in; he affirms that he will tell the truth.}

Judge Story: Sir, we recognize that coming from Providence has been a wearing trip for you and we will make this as brief as possible. However, as one of the original investors in the larger mills, as builder of the new dam, and as one of the plaintiffs in the earlier case we do need your fullest recollections.

Moses Brown: Your Honor, the recent events have been most distressing. To my way of thinking, there is no need to be here. The 1796 decision seems to cover what is necessary for us all. Until Mr. Jenks tore the gate down in 1805, the agreement worked fine. The trench owners received a fixed amount of water, as did the upper and low dam owners. I don't see how one party or another can be blamed for the recent shortfall. Although I have no evidence that there is more water in the Trench than there used to be, the flood of 1807 did deepen the Trench. Even without that problem, the increased demands placed upon the river by all the new building since 1793 has contributed to hard feelings.

Judge Story: Why has there been this rapid industrial growth?

Moses Brown: When President Jefferson issued the Embargo Act in December 1807, entrepreneurs invested in the fledgling cotton industry. Unable to send goods to Europe, shippers and merchants found themselves without enterprise, and they too used their capital to invest in this new industry. Between 1809 and 1811, 18 new cotton mills were built in New England--three in Pawtucket. Between 1812 and 1815, 73 more cotton mills were built. We gave families work, providing job training for children and women as well. We even held on in the difficult years after the war, when the British dumped their textiles to drive us out of business. Although Mr. Jenks is entitled to his opinion, many of us are just coming out of this depression and cannot afford to convert to steam power. It is simply too expensive.

Judge Story: Given that, sir, how might the two factions have avoided this present crisis over water rights?

Moses Brown: Do not be misled, Judge. This is not simply an issue over water rights. This is a case of envy. Those of us who are today prosperous took a gamble years ago that paid off; others were more cautious and their mills remained small. Let us not forget why we are here.

Judge Story: You are avoiding plain words, Mr. Brown. In this court, to separate the layers of complaints--innuendo from the real--we need full disclosure.

Moses Brown: Judge Story, as the court is aware, this lawsuit by a group of small millowners follows a series of incidents that were directed against large millowners by small. Granted, tempers have been exacerbated by the lengthy drought. But we must not forget that there has been a rash of suspicious mill fires recently. They seem to start at odd times in places where there should be no fire. To protect our interests, and those of our employees, we have had to hire patrols from 9 pm to sunrise. We have also pooled our money to form an insurance company.

Judge Story: Are you implying, sir, that these millowners are in league to drive you out of business? These are strong words.

Moses Brown: Sir, may it please the court. I have no evidence, nor do I wish to impugn the characters of men I have known for many years. Let me simply say that we cannot afford to keep our mills idle in drought times. Laborers depend on us for their livelihood. Our workers have pressed local government to rule in our favor so that their wages would be continuous.

Judge Story: Thank you, Mr. Brown. You have been most helpful. You may step down. The court will call its last witness, Mr. Abraham Wilkinson.


{Wilkinson takes the stand.}

Mr Wilkinson, you have heard the evidence. What can you add?

Mr. Wilkinson: Regulating water flow has been at issue since my father, Oziel Wilkinson, took charge of the gate. Equitable distribution of water existed until Mr. Jenks decided he knew better than the court and ripped the gate out. Today, the issue before us is all too reminiscent of the old angers. This issue is really about control, and not just water.

Judge Story: Continue, Mr. Wilkinson. As machinists, your family has been important to the town's great changes. One of the ideas that I would like you to clarify is the one raised by Mr. Jenks and briefly answered by Mr. Brown--that the simplest solution is to urge the large millowners to invest in steam. Would you please tell the court what this entails?

Mr. Wilkinson: Certainly, your honor. Although many firms in Britain have switched to steam power, it is still in a fledgling state. Remember, Britain's rivers are too crowded for efficient use year-round, and alternate means were necessary to fuel these large enterprises. In addition, there is ready access to coal to fuel the engines, and inexpensive. These considerations outweigh the enormous construction and maintenance costs, as well as the dangers that result from occasional boiler explosions. To switch to steam power would necessitate new construction, the costs of hiring an engineer and fireman, and increased insurance costs. What is the investor's motive to use steam when it costs $36 per year per horsepower just for fuel, and water is essentially free?

Judge Story: Thank you, Mr. Wilkinson. Although I am embarrassed to ask, I cannot remember how many horsepower a large cotton mill needs. Please help us with the figures. I know I would find this useful in thinking through the alternatives; I am equally sure the audience would benefit from this knowledge.

Mr. Wilkinson: A large mill requires between four and five millpower. Each millpower turns 3,584 spindles to spin the cotton into thread and all the clothmaking machinery necessary to handle the output of those spindles. So a factory like Mr. Brown's requires approximately four millpower. One millpower supplies 82.5 horsepower at the wheel, although some is lost in the shafts and belts that drive the machinery; therefore, if my figuring is correct, Mr. Brown's mill requires 330 horsepower. At $36 per horsepower, the annual cost for fuel alone is $11,880. This does not include labor costs, or transportation costs to get coal to the mill.

Judge Story: Thank you, Mr. Wilkinson. That was most instructive. One final question, please. What do you believe your role in this controversy has been?

Mr. Wilkinson: That is difficult to say, your Honor. As the court is aware, we continue to be the major suppliers of the large mills with machine parts and ironwork. Because of our earlier financial interest in the big cotton mill, we have been accused of favoring their interests. But their interests are all of our interests now. We are each dependent on the other. We are a prosperous industrial town; our stores, shops, and businesses depend on the labor and output of the large mills. My suggestion is that we return to the ideas of the 1796 decision but with set percentages of water-rights usage. Perhaps Mr. Brown's mill gets 7/16 river use; Mr. Jenks's, 3/16. That is for you to set, Judge.

Judge Story: Thank you, Mr. Wilkinson. I have arrived at much the same conclusion; I believe that is the direction the country must take. To avoid conflicts of this sort in the future, local municipalities across the country must determine water rights. We are becoming an industrial power, and must acknowledge this growth without neglecting the ancient right of all who own property on the river.

Therefore, the court orders that an engineer be employed to ascertain water-rights usage by the various firms along the river and trench. The trench owners may not apportion more water to themselves than was permitted in the 1796 decision. Furthermore, I will in due course distribute a written decision to be printed in public newspapers. This case is too important to risk distortion in the press by journalists who do not understand the gravity of the issues involved.

Court is adjourned.

Narrator: There are many issues this court had to consider: the rights of the earliest millowners who settled this area versus those who built quite late; the rights of the Trench owners. The court had also to consider whether or not the owners of mills along the Trench are in fact in league with the larger millowners. Another question the court had to decide was whether it had the power to recommend steam power. Can a court mandate an alternative power source? Finally, the court needed to determine equitable distribution of water power so that this case would not be reopened ten years later.

Judge Story's Decision

The following is the actual decision written about the Sargeant's Trench water-rights trial. Judge Stephen Story wrote the article released to the paper, fearing that without careful analysis and reflection, misinterpretation could present further problems. Reporters could not be depended upon to understand the subtleties.

Water-Rights

Providence, R.I., June 25, 1826

At the recent term of the United States circuit court for the district of Rhode Island, his honor Judge Story delivered the opinion of the court, in the case of Ebenezer Tyler and others, against Abraham Wilkinson and others, in equity. We have heretofore refrained from mentioning this decision but now having a copy of the judge's opinion before us, we will endeavor to state the points decided.

The bill charges that the respondents who are owner of Sargeant's Trench, are entitled as against the owners of the lower dam, only to what is called a waste water privilege; that is, a right to use only such surplus water as is not wanted by the owners of the lower dam and lands, for any purpose whatever. That the rights of the trench owners are subservient to those of the plaintiffs. It also charges a fraudulent combination between the owner of the upper dam, and the trench, injuriously to appropriate and use the water, and the latter use more than they are entitled to by ancient usage, and waste it, to the injury of the plaintiffs. The object of the bill is to establish the plaintiffs' rights, and to obtain an injunction, and for general relief.

The principal points discussed at bar were what is the nature and extent of the rights of the owners of Sargeants Trench; and whether their rights have been exceeded by them, to the injury of the plaintiffs.

Preparatory to considering these points, the judge considered the nature and extent of rights which riparian proprietors generally possess to the waters of rivers flowing through their land, which he considered generally to be as follows, viz. Every proprietor upon each bank of a river is entitled to the land covered with water in front of his bank, to the middle thread of the stream; by virtue , whereof he has a right to the use of the water flowing over it in its natural current, without diminution or obstruction--he has no property in the water, by a sufficit while it passes along. The natural stream existing by the bounty of Providence, for the benefit of the land through which it flows, is an incident annexed by the operation of law to the land itself. The riparian proprietor is allowed a reasonable use of that which is common to all. There may be a diminution in quantity or retardation, or acceleration of the natural current, indispensable to the general and valuable use of the water, and perfectly consistent with the existence of the common right. The law acts with a reference to public convenience and general good, not betrayed into a narrow strictness subversive of common sense, or an extravagant looseness which would destroy private rights. Mere priority of appropriation of running water confers no exclusive right, unless there be an appropriation by general consent or grant. It is not like the case of occupancy, where the first occupant takes by force of his priority of occupation. Whoever seeks to establish an exclusive use against the riparian proprietors must show a rightful appropriation by grant from all whose interests are affected by the particular appropriation or by a long exclusive enjoyment without obstruction, which affords a just presumption of right. The plaintiffs, the considered riparian proprietors. As owners of the lower dam, and the mills connected therewith, they have no rights beyond others who might have appropriated that portion of the stream to the use of their mills. These rights are to be measured by their actual use and appropriation of the water, for a period which the law deems a conclusive presumption in favor of rights of this nature. As mill owners they have no title to the flow of the stream, beyond the water actually and legally appropriated to their mills; but as riparian proprietors, they are entitled to the general flow of the stream, so far as it has not been already acquired by some prior and legally operative appropriation.

The plaintiffs have the right to the natural flow of the stream not yet appropriated. The owners of Sargeant's Trench are entitled to the use of so much water of the river as has been accustomed to flow through that trench to and from their mills (whether actually used or necessary for the same mills or not), during the twenty years last before the institution of the suit, subject only to such qualifications and limitations as have been acknowledged or rightfully exercised by the plaintiffs as riparian proprietors, or owners of the lower mill dam, during that period. Their rights stop there. They have no right to appropriate surplus water not used by the riparian proprietors, it being their inheritance and not open to occupancy. The trench proprietors do not hold a mere waste-water privilege. The plaintiffs do not establish pre-eminent right; but if they did, it would be limited to the mills formerly existing, and to their usual priority of supply; which, in a conflict of right, and a deficiency of water, they were accustomed to take and require, and not an unlimited right over all the water for all future mills. The court considers this claim of pre-eminent right as suspended in doubt, and that relief ought not to be given against the positive denial of the respondents. The fact of actual flow and use of water for a considerable time, is proof of a general right, and no limitations are to be presumed unless such as have constantly been acquiesced in by those whose interests were adverse. For a period of forty or fifty years the water did flow in the trench without any known limitation upon it by grant or usage. The nets of interruption since that period were either such as removal of temporary dams intended to increase the supply, or were under circumstances so questionable as to leave behind them no clear traces of any admission of right, or uniform acquiescence in them, as just exercises of superior adverse interests.

The judge decided that "the owners of Sargeant's Trench have a right to the flow of the quantity of water which was accustomed to flow therein antecedent to 1796; that the right is general and not qualified by any permanent right in the plaintiff, or other owners of the lower dam, either as riparian proprietors or otherwise, to the use of the water in case of a deficiency; that if there be a deficiency it must be borne by all parties as a common loss, wherever it may fall, according to existing rights; and that the trench proprietors have no right to appropriate more water than belonged to them in 1796, and ought to be restrained from any further appropriation; and that the plaintiffs, this extent, are entitled to have their general rights established, and an injunction granted."**

A master was appointed to ascertain as near as may be, the quantity of water to which the trench owners are entitled, in conformity to the opinion of the court, and to report a suitable mode and arrangement permanently to regulate and adjust the flow of the water, so as to preserve the right of all parties.

**The trench owners, in their answer, do not pretend that they have acquired any new rights by an additional uninterrupted use within the last twenty years; but, on the contrary, they assert that the quantity which now flows, is in conformity to the ancient usage, and does not exceed it.

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