ditions or because of artificial obstruc-, their natural and ordinary condition, are tions. [For other cases, see Commerce, II. b, in navigable waters - Des Digest Sup. Ct. 1908.] 8. The Des Plaines river below the city of Joliet, and just above where the Des Plaines joins the Kankakee to form the Illinois river, is a navigable river of the United States, within the meaning of the prohibition in the Act of March 3, 1899, § 9, against the construction of a dam in a navigable river of the United States without the approval of the War Department. [For other cases, see Commerce, II. b; Waters, I. a, in Digest Sup. Ct. 1908.] Commerce -control of navigable waters - obstructions approval of War Department. 9. The requirement of the Act of March 3, 1899, § 9, that the War Department approve the location and plans for any dam in a navigable river of the United States, is not in substance satisfied by the refusal of the Secretary of War to act because, as he was assured that the river was not navigable, he had no jurisdiction. This cannot be regarded as an equivalent to an approval, either in form or effect, or even as an official inquiry into the naviga bility of the river. [For other cases, see Commerce, II. b, in Digest Sup. Ct. 1908.] [No. 104.] used or susceptible of being used, as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water; and they constitute navigable waters of the United States, within the meaning of the acts of Congress, in contradistinction from navigable waters of the several states, when they form, by themselves, or by uniting with other waters, a continued highway over which useful commerce is, or may be, carried on with other states or foreign countries in the customary modes in which such commerce is conducted. The Daniel Ball, 10 Wall. 557, 19 L. ed. 999; The Montello, 20 Wall. 430, 22 L. ed. 391. The Act of March 3, 1899, under which relief is asked, is of general application to navigable waters throughout the United States. The court of appeals based its judgment solely on a definition of navigable waters of the United States which the law does not recognize, and which admittedly could apply only within a limited territory. The Daniel Ball, 10 Wall. 557, 19 L. ed. 999; The Montello, 20 Wall. 430, 22 L. ed. 391. The Ordinance of 1787 and the statutes Argued December 17, 1920. Decided April for the government of the Northwest 11, 1921. The facts are stated in the opinion. Mr. Frank H. Scott argued the cause and filed a brief for appellant: The title to the bed of the Des Plaines river at the point in question is in appellant. The contention of the United States that it has title thereto is without any foundation in law. State ex rel. Deneen v. Economy Light & P. Co. 241 Ill. 290, 89 N. E. 760; Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Scott v. Lattig, 227 U. S. 229, 57 L. ed. 490, 44 L.R.A. (N.S.) 107, 33 Sup. Ct. Rep. 242; Donnelly v. United States, 228 U. S. 243, 57 L. ed. 820, 33 Sup. Ct. Rep. 449, Ann. Cas. 1913E, 710; Braxon v. Bressler, 64 Ill. 488, 13 Mor. Min. Rep. 163. Navigable waters are those which, in Territory ceased to have any effect after the admission of the state of Illinois, in 1818. Van Brocklin V. Brocklin v. Anderson) 117 U. S. 151, 29 Tennessee (Van L. ed. 845, 6 Sup. Ct. Rep. 670; Hawkins v. Bleakly, 243 U. S. 210, 61 L. ed. 678, 37 Sup. Ct. Rep. 255, Ann. Cas. 1917D, 637, 13 N. C. C. A. 959; Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678, 27 L. ed. 442, 2 Sup. Čt. Rep. 185, La Plaisance Bay Harbor Co. v. Monroe, Walk. Ch. (Mich.) 155; Sands v. Manistee River Improv. Co. 123 U. S. 288, 31 L. ed. 149, 8 Sup. Ct. Rep. 113. The court of appeals was in error in stating, in its opinion, that the same principle as that contained in the ordinance was preserved in the Illinois Constitution. Economy Light & P. Co. v. United States, 168 C. C. A. 138, 256 Fed. 800; Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678, 27 L. ed. 442, 2 Sup. Ct. Rep. 185; Dixon v. People, 168 Ill. 179, 39 L.R.A. 116, 48 N. E. 108; People ex rel. Woodyatt v. Thompson, 155 . 451, 40 N. E. 307; State ex rel. Adams v. Cunningham, 81 Wis. 440, 15 L.R.A. 561, 51 N. W. 724. The court of appeals failed to distin guish between streams held to be floatable under the laws of certain of the states, and navigable waters of the United States, subject to the control of Congress under the commerce clause of the Constitution, and, in consequence, adopted an erroneous definition of "navigable waters of the United States." 19 L. ed. 984; United States v. Rio Grande Dam & Irrig. Co. 174 U. S. 690, 43 L. ed. 1136, 19 Sup. Ct. Rep. 770. The commerce clause of the Constitution does not apply to a stream which is wholly within the limits of one state, and which does not, by a navigable channel, connect with waters making it available for interstate commerce. Veazie v. Moor, 14 How. 568, 14 L. ed. 545; The Montello, 20 Wall. 430, 22 L. ed. 391. Gaston v. Mace, 33 W. Va. 14, 5 L.R.A. 392, 25 Am. St. Rep. 848, 10 S. E. 60; Lewis v. Coffee County, 77 Ala. 190, 54 Am. Rep. 55; Duluth Lumber Co. v. St. Louis Boom & Improv. Co. 17 Fed. 419; Heyward v. Farmers' Min. Co. 42 S. C. 138, 28 L.R.A. 42, 46 Am. St. Rep. 702, 19 S. E. 963, 20 S. E. 64; Grand Rapids v. Powers, 89 Mich. 94, 14 L.R.A. 498, 28 Am. St. Rep. 276, 50 N. W. 661;tion of the state. Hubbard v. Bell, 54 Ill. 110, 5 Am. Rep. 98; Schulte v. Warren, 218 Ill. 108, 13 L.R.A.(N.S.) 745, 75 N. E. 782. The Fox river, referred to in the Montello Case, in its natural condition, and after the settlement of the country, was largely used for commerce. The Des Plaines was not, to any extent whatever. The physical characteristics of the Fox, as compared with those of the Des Plaines, explain the marked difference in the history of the use of the two streams. The Montello, 20 Wall. 440, 22 L. ed. 394; State ex rel. Deneen v. Economy Light & P. Co. 241 Ill. 290, 89 N. E. 760; United States v. Rio Grande Dam & Irrig. Co. 174 U. S. 690, 43 L. ed. 1136, 19 Sup. Ct. Rep. 770. The right of Congress to legislate at all arises under the commerce clause of the Constitution, which does not apply to such streams as the Des Plaines. If the Act of 1899 applies to that stream, it is void. The court of appeals erroneously held that the right to so legislate might arise under the war powers of Congress. Wherever, in the course of a stream, it ceases to be a public highway for commerce between states, at that point its national character terminates, and above that it is within the exclusive jurisdic Neaderhouser v. State, 28 Ind. 257; Veazie v. Moor, 14 How. 568, 14 L. ed. 545; The Montello, 20 Wall. 411, 22 L. ed. 391; United States v. Rio Grande Dam & Irrig. Co. 174 U. S. 690, 43 L. ed. 1136, 19 Sup. Ct. Rep. 770; Com. v. King, 150 Mass. 221, 5 L.R.A. 536, 22 N. E. 905. The Sanitary District canal is not a waterway of the United States. Beidler v. Sanitary Dist. 211 Ill. 629, 67 L.R.A. 820, 71 N. E. 1118; Malony v. Milwaukee, 1 Fed. 611. The one and only thing on which this action of the United States can be rested is the absence of a formal approval by the Chief of Engineers and the Secretary of War. Wilson v. Hudson County Water Co. 76 N. J. Eq. 543, 76 Atl. 560; Cobb v. Lincoln Park, 202 Ill. 427, 63 L.R.A. 264, 95 Am. St. Rep. 258, 67 N. E. 5. In the instant case, the Chief of Engineers and Secretary of War found not merely that the proposed structure would not interfere with commerce, which was all that was required under the Act of 1899, but they found that there was no commerce to be interfered with, and that the Des Plaines river was not navigable. Wilson v. Hudson County Water Co. 76 N. J. Eq. 543, 76 Atl. 560; Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561 Ann. Cas. 1175; Monongahela Bridge Co. v. United States, 216 U. S. 177, 54 L. ed. 435, 30 Sup. Ct. Rep. 356. Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23; Monongahela Nav. Co. v. United States, 148 U. S. 312, 37 L. ed. 463, 13 Sup. Ct. Rep. 622; United States v. Cress, 243 U. S. 316, 61 L. ed. 746, 37 Sup. Ct. Rep. 380; Leovy v. United States, 177 U. S. 621, 44 L. ed. 914, 2050 L. ed. 596, 26 Sup. Ct. Rep. 341, 4 Sup. Ct. Rep. 797; The Montello, 20 Wall. 430, 22 L. ed. 394; Valentine ex rel. Dudley v. Berrien Springs Water Power Co. 128 Mich. 280, 87 N. W. 370; People ex rel. Deneen v. Economy Light & P. Co. 241 Ill. 290, 89 N. E. 760; Schulte v. Warren, 218 Ill. 108, 13 L.R.A. (N.S.) 745, 75 N. E. 782; Grand Rapids v. Powers, 89 Mich. 94, 14 L.R.A. 498, 28 Am. St. Rep. 276, 50 N. W. 661; Kewanee v. Otley, 204 Ill. 402, 68 N. E. 388; Yates v. Milwaukee, 10 Wall. 497, This court has, in effect, intimated that the acts of the War Department, above narrated, should prevent interference with the construction of the dam. Illinois ex rel. Dunne v. Economy Light & P. Co. 234 U. S. 497, 58 L. ed. 1429, 34 Sup. Ct. Rep. 973. The surest test of whether a stream traversing a settled country is navigable 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. is whether it has been used for purposes | 125 U. S. 1, 31 L. ed. 629, 8 Sup. Ct. of useful commerce. According to this Rep. 811. test, the Des Plaines is not navigable. Packer v. Bird, 137 U. S. 661, 34 L. ed. 819, 11 Sup. Ct. Rep. 210; Gould, Waters, § 43; Farnham, Waters, pp. 121, 125; State v. Gilmanton, 14 N. H. 467; Burroughs v. Whitman, 59 Mich. 226, 26 N. W. 491; 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; Webster v. Harris, 111 Tenn. 668, 59 L.R.A. 324, 69 S. 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. Me., serting the navigability of a stream, and from removing or preventing an obstruction to its navigability, without compensation. 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. V. Greenleaf Johnson Lumber Co. 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; States V. Chandler Dunbar United 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 opin 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. 229ion of the court: 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 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,, 1675) down to the end of the first quar1890 (chap. 907, 26 Stat. at L. 426, 454), ter of the nineteenth century. Details makes it unlawful to build any dam or are given in the opinion of the circuit other structure in any navigable river or court of appeals, and need not be reother waters of the United States, so as peated. Suffice it to say that there was to obstruct or impair navigation, with- a well-known route by water, called the out permission of the Secretary of War. Chicago-Des Plaines-Illinois route, runSection 9 of the Act of March 3, 1899 ning up the Chicago river from its (30 Stat. at L. 1151, chap. 425), de- mouth on Lake Michigan to a point on clares: "That it shall not be lawful to the west fork of the south branch; construct or commence the construction thence westerly by water or portage, of any bridge, dam, dike, or causeway according to the season, to Mud lake, over or in any navigable river, about 2 miles; thence to the Des Plaines or other navigable water of the United near Riverside, 2 miles; thence down the States until the consent of Congress to Des Plaines to the confluence of that the building of such structures shall river with the Kankakee, where they have been obtained and until the plans form the Illinois river; thence down the for the same shall have been submitted Illinois to its junction with the Missisto and approved by the Chief of Engi- sippi. During the period mentioned the neers and by the Secretary of War: fur trade was a leading branch of comProvided, that such structures may be merce in the western territory, and it built under authority of the legislature was regularly conducted upon the Des of a state across rivers and other water- Plaines river. Supplies in large quanways the navigable portions of which lie tity and variety, needed by the early setwholly within the limits of a single tlers, also were transported over this state, provided the location and plans route between Chicago and St. Louis thereof are submitted to and approved and other points. Canoes and other by the Chief of Engineers and by the boats of various kinds were employed, Seeretary of War before construction having light draft, but capable of carryis commenced . . ." ing 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. 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 cuit court of appeals finds (168 C. C. A. But, in spite of these changes, the cirof the proposed dam. The circuit court 138, 256 Fed. 804) that the Des Plaines of appeals did not disturb this finding river is a continuous stretch of water (168 C. C. A. 138, 256 Fed. 792, 798); from Riverside (at the Chicago divide) state the river was navigable in fact, to its mouth; and although there is a and that it was actually used for the rapid, and in places shallow water, with purposes of navigation and trading in boulders and obstructions, yet these the customary way, and with the kinds things do not affect its navigable capacof craft ordinarily in use for that purity; that the same is true of the upper pose on rivers of the United States, part of the Illinois river above the head from early fur-trading days (about of steamboat navigation; and that both But both courts found that in its natural |
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