The court of appeals was led into many errors of fact, as to most of which there was no conflict in the evidence. Economy Light & P. Co. v. United States, 168 C. C. A. 138, 256 Fed. 798.

W. 782.

The navigability of the Des Plaines is not to be determined by its capacity, as changed by the addition of the waters of the Sanitary District.

People ex rel. Deneen v. Economy Light & P. Co. 241 Ill. 290, 89 N. E. 760, 234 U. S. 520, 58 L. ed. 1438, 34 Sup. Ct. Rep. 973; Philadelphia v. Stimson, 223 U. S. 605, 56 L. ed. 570, 32 Sup. Ct. Rep. 340; Schulte v. Warren, 218 Ill. 108, 13 L.R.A. (N.S.) 745, 75 N. E. 782; United States v. Cress, 243 U. S. 316, 61 L. ed. 746, 37 Sup. Ct. Rep. 380; Thunder Bay River Boom Co. v. Speechly, 31 Mich. 336, 18 Am. Rep. 184; Druley v. Adam, 102 Ill. 177; Tourtellot v. Phelps, 4 Gray, 370; Lovingston v. St. Clair County, 64 Ill. 56, 16 Am. Rep. 516; Chicago v. Laflin, 49 Ill. 172.

The attempted use of the river in presettlement days by explorers and traders proved that it was unnavigable. The record in the state case was substantially the same as in the instant case. Such additional use as was shown in this case tended to support the conclusion that the river was non-navigable in the earliest historical times. The fact of navigability is one which should be established once for all, and not be perpetually retried.

Wear v. Kansas, 245 U. S. 154, 62 L. ed. 214, 38 Sup. Ct. Rep. 55, Ann. Cas. 1918B, 586.

The report of the engineers employed by the state of Illinois in connection with the laying out of the Illinois & Michigan canal shows that the Des Plaines was not only not navigable, but could not furnish sufficient water to supply a navigable canal.

People ex rel. Deneen v. Economy Light & P. Co. 241 Ill. 324, 89 N. E. 760, and Illinois ex rel. Dunne v. Economy Light & P. Co. 234 U. S. 497, 58 L. ed. 1429, 34 Sup. Ct. Rep. 973, indicate that this court did not consider that the Act of March 3, 1899, applied to the Des Plaines river.

Willamette Iron Bridge Co. v. Hatch,

Special Assistant to the Attorney General Goodwin argued the cause, and, with Solicitor General Frierson, filed a brief for appellee:

Concurrent decisions of the two lower courts on an issue of fact will be accepted by this court unless shown to be clearly erroneous.

Luckenbach v. W. J. McCahan Sugar Ref. Co. 248 U. S. 139, 63 L. ed. 170, 1 A.L.R. 1522, 39 Sup. Ct. Rep. 53; The Wilderoft, 201 U. S. 378-387, 50 L. ed. 794-796, 26 Sup. Ct. Rep. 467; The Carib Prince, 170 U. S. 655-658, 42 L. ed. 1181-1185, 18 Sup. Ct. Rep. 753.

The navigation of the Des Plaines river by the means shown by the evidence in connection with foreign and interstate commerce makes it a navigable water of the United States.

The Montello, 20 Wall. 430, 22 L. ed. 391; St. Anthony Falls Water Power Co. v. Water Comrs. 168 U. S. 349, 359, 42 L. ed. 497, 501, 18 Sup. Ct. Rep. 157; United States v. Chandler Dunbar Water Power Co. 229 U. S. 53, 57 L. ed. 1063, 33 Sup. Ct. Rep. 667; Hickok v. Hine, 23 Ohio St. 523, 527, 13 Am. Rep. 255; Brown v. Chadbourne, 31 Me. 23, 50 Am. Dec. 641; Moore v. Sanborne, 2 Mich. 519, 59 Am. Dec. 209; Morgan v. King, 35 N. Y. 454, 91 Am. Dec. 58.

The fact that navigation may be difficult and at places interrupted does not render a stream unnavigable. The character of a river as a public highway is not determined by the frequency of its use, but by its capacity for being used.

Hickok v. Hine, 23 Ohio St. 527, 13 Am. Rep. 255.

Nor is it essential that the stream should be capable of being navigated at all seasons of the year.

Morgan v. King, 35 N. Y. 454, 91 Am. Dec. 58; Brown v. Chadbourne, 31 Me. 23, 50 Am. Dec. 641.

Nor does navigability depend upon the amount of tonnage, depth of water, or capacity for use by modern means of transportation.

The Montello, 20 Wall. 430, 22 L. ed. 391; State v. Pacific Guano Co. 22 S. C. 50; Heyward v. Farmers' Min. Co. 42 S. C. 139, 28 L.R.A. 42, 46 Am. St. Rep. 702, 19 S. E. 963, 20 S. E. 64; Burroughs v. Whitman, 59 Mich. 279, 26 N.

W. 491; Wadsworth v. Smith, 11 278, 26 Am. Dec. 525; Lewis v. Coffee County, 77 Ala. 193, 54 Am. Rep. 55. Where a stream is navigable in a state of nature, the power of Congress to protect and promote its navigability cannot be lost or destroyed by nonuse or artificial depletion.

People v. Page, 39 App. Div. 110, 56 N. Y. Supp. 834, 58 N. Y. Supp. 239.

It was within the constitutional power of Congress to enact the provisions of the Acts of 1796 and 1804, for the purpose of regulating interstate commerce by perpetuating the public highways constituted by the navigable streams in the territories.

Coyle v. Smith, 221 U. S. 559, 574, 55 L. ed. 853, 860, 31 Sup. Ct. Rep. 688; United States v. Sandoval, 231 U. S. 28, 38, 58 L. ed. 107, 110, 34 Sup. Ct. Rep. 1; Ruddy v. Rossi, 248 U. S. 104, 63 L. ed. 148, 39 Sup. Ct. Rep. 46.

The Act of March 3, 1899, is an act for the protection of the navigability of the stream, and prevents impediments to its navigability, even in the absence of actual navigation.

United States v. Rio Grande Dam Irrig. Co. 174 U. S. 690, 43 L. ed. 1136, 19 Sup. Ct. Rep. 770; United States v. Chandler Dunbar Water Power Co. 229 U. S. 53, 57 L. ed. 1063, 33 Sup. Ct. Rep. 667.

As neither Congress nor the Illinois legislature has consented to or given authority for the building of the dam in question, it is within the inhibition of the

statute.

Cummings v. Chicago, 188 U. S. 410, 47 L. ed. 525, 23 Sup. Ct. Rep. 472; Montgomery v. Portland, 190 U. S. 89, 47 L. ed. 965, 23 Sup. Ct. Rep. 735.

While firmly resting its case on the natural navigability of the stream, the government submits that the increased navigability of the stream, caused by turning in the waters of Lake Michigan, would, had it been unnavigable in a state of nature, bring it directly within the control of Congress and the terms of the Act of March 3, 1899.

Ex parte Boyer, 109 U. S. 629, 27 L. ed. 1056, 3 Sup. Ct. Rep. 434; The Robert W. Parsons, 191 U. S. 17, 48 L. ed. 73, 24 Sup. Ct. Rep. 8; Monongahela Nav. Co. v. United States, 148 U. S. 312, 342, 37 L. ed. 463, 473, 13 Sup. Ct. Rep. 622; Gilman v. Philadelphia, 3 Wall. 713, 724, 18 L. ed. 96, 99; Gibson v. United States, 166 U. S. 269, 41 L. ed. 996, 17 Sup. Ct. Rep. 578.

No action of the War Department could estop the United States from as

Greenleaf Johnson Lumber Co. V. Garrison, 237 U. S. 251, 59 L. ed. 939, 35 Sup. Ct. Rep. 551; Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U. S. 82, 57 L. ed. 1083, 33 Sup. Ct. Rep. 679, Ann. Cas. 1915A, 232; Union Bridge Co. v. United States, 204 U. S. 364, 400, 51 L. ed. 523, 539, 27 Sup. Ct. Rep. 367; Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. ed. 570, 32 Sup. Ct. Rep. 340; United States v. Chandler Dunbar Water Power Co. 229 U. S. 53, 68, 57 L. ed. 1063, 1077, 33 Sup. Ct. Rep. 667; West Chicago Street R. Co. v. Illinois, 201 U. S. 506, 50 L. ed. 845, 26 Sup. Ct. Rep. 518; Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 50 L. ed. 596, 26 Sup. Ct. Rep. 341, 4 Ann. Cas. 1175.

This court has never passed on the merits of the present controversy in any of its phases, but has expressly declined so to do.

Illinois ex rel. Dunne v. Economy Light & P. Co. 234 U. S. 497, 58 L. ed. 1429, 34 Sup. Ct. Rep. 973.

Mr. Justice Pitney delivered the opinion of the court:

This was a suit brought by the United States against appellant in the district court for the northern district of Illinois, eastern division, for an injunction to restrain defendant from constructing a dam in the Des Plaines river at a point in Grundy county, Illinois, without the consent of Congress or authority of the legislature of the state, and without approval of the location and plans by the Chief of Engineers and the Secretary of War of the United States. Relief was prayed upon two grounds: (1) That the river bed where the dam was being constructed was the property of the United States; (2) that the Des Plaines river was a navigable waterway of the United States, and the proposed construction of a dam therein was in violation of the Act of Congress of March 3, 1899 (chap. 425, § 9, 30 Stat. at L. 1121, 1151, Comp. Stat. § 9971, 9 Fed. Stat. Anno. 2d ed. p. 81). The first ground was overruled by the district court and disregarded by the circuit court of appeals. We need not consider it further. The second ground was sustained by the district court, and its final decree granting an injunction was [116] affirmed by the circuit court of appeals. 168 C. C. A. 138, 256 Fed. 792. The present appeal followed.

.

Section 7 of Act of September 19, 1890 (chap. 907, 26 Stat. at L. 426, 454), makes it unlawful to build any dam or other structure in any navigable river or other waters of the United States, so as to obstruct or impair navigation, without permission of the Secretary of War. Section 9 of the Act of March 3, 1899 (30 Stat. at L. 1151, chap. 425), declares: "That it shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of War: Provided, that such structures may be built under authority of the legislature of a state across rivers and other waterways the navigable portions of which lie wholly within the limits of a single state, provided the location and plans thereof are submitted to and approved by the Chief of Engineers and by the Secretary of War before construction is commenced

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There is no contention that the consent of Congress for the building of the proposed dam has been obtained, that its construction has been authorized by the legislature of the state of Illinois, or that the location and plans have been submitted to and approved by the Chief of Engineers and the Secretary of War. The substantial defense is that the Des Plaines river, at the site of the proposed dam, which is below the city of Joliet, and just above the point where the Des Plaines joins the Kankakee to form the Illinois river, is not navigable in fact, and not within the description "navigable river, or other navigable water of the United States," as employed in the Act of 1899.

[117] The district court found that there was no evidence of actual navigation within the memory of living men, and that there would be no present interference with navigation by the building of the proposed dam. The circuit court of appeals did not disturb this finding (168 C. C. A. 138, 256 Fed. 792, 798);

But both courts found that in its natural

1675) down to the end of the first quarter of the nineteenth century. Details are given in the opinion of the circuit court of appeals, and need not be repeated. Suffice it to say that there was a well-known route by water, called the Chicago-Des Plaines-Illinois route, running up the Chicago river from its mouth on Lake Michigan to a point on the west fork of the south branch; thence westerly by water or portage, according to the season, to Mud lake, about 2 miles; thence to the Des Plaines near Riverside, 2 miles; thence down the Des Plaines to the confluence of that river with the Kankakee, where they form the Illinois river; thence down the Illinois to its junction with the Mississippi. During the period mentioned the fur trade was a leading branch of commerce in the western territory, and it was regularly conducted upon the Des Plaines river. Supplies in large quantity and variety, needed by the early settlers, also were transported over this route between Chicago and St. Louis and other points. Canoes and other boats of various kinds were employed, having light draft, but capable of carrying several tons each, and manned by crews of six or eight men. The route was navigated by the American Fur Company regularly during a period of years down to about 1825, after which it was disused because the trade had receded to interior portions of Illinois that could be reached [118] more conveniently with horses. Later, changes occurred in the river, due to the drainage of a swamp in the region of the portage, the clearing away of forests affecting the rainfall and the distribution of the run-off, and thus shortening the duration of the higher stages of water; the construction (under state authority) of the Illinois and Michigan canal in 1848, and its deepening in 1866 to 1871, which diverted a part of the hill drainage towards the Chicago river; and the construction of the Sanitary and Ship canal in 1892 to 1894.