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Argument for Plaintiffs in Error.

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appreciating his proposals but declining to give any permit binds nobody. Hubbard, Receiver of Hudson Water Company, v. Fort, Governor and Attorney General of New Jersey, 188 Fed. Rep. 993; Minnesota Canal &c. Co. v. Pratt, 101 Minnesota, 197, S. C., 11 L. R. A. (N. S.) 105.

This early commercial use in the fur trade ended with the Black Hawk War in 1832 and the inrush of immigration that followed. This is the route and this the commerce which was protected by the Ordinance of 1787. In 1836 the State began building the original Illinois and Michigan Canal and filled it from the Des Plaines, returning the water to the river after a detour of eleven miles. By this interruption, the old canal superseded the river commercially until itself was superseded by the railroads. The original navigability of the Des Plaines was restored and enlarged by the discharge into it by Federal authority of the navigable waters of Lake Michigan. The public right in this historic waterway is not lost by non-user. It is inalienable. Ill. Cent. R. Co. v. Illinois, 146 U. S. 387; People v. Page, 39 N. Y. App. Div. 110; People v. Vanderbilt, 26 N. Y. 287; S. C., 28 N. Y. 396; Hartford v. Hartford Bridge Co., 10 How. 534.

The defendant demurred to the allegation that the stream as altered and improved was rendered navigable in 1900; and the state courts both sustained the demurrer as a matter of law and held that the artificial navigability so created was irrelevant and immaterial. Upon this there was no finding of fact below.

As a matter of law, a stream artificially increased in volume and otherwise improved by public action is to be judged thenceforward in its altered condition. Phila. Co. v. Stimson, 223 U. S. 605, 634-5; Union Bridge Co. v. United States, 204 U. S. 364 at 400; Monongahela Bridge Co. v. United States, 216 U. S. 177, 193-4; United States v. Chandler-Dunbar Co., 229 U. S. 53; Scranton v. Wheeler, 179 U. S. 141; St. Anthony's Falls Water Co. v. St. Paul

Argument for Plaintiffs in Error.

Water Comrs., 168 U. S. 349; Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 561-2; The Monticello, 20 Wall. 430; West Chicago St. R. Co. v. Chicago, 201 U. S. 506, 524, as to Chicago River so artificially made navigable. In re Chicago River, 20 Opin. U. S. Atty. Gen. 101.

Federal and state action were concurrent in the improvement of the Des Plaines. The State furnished the channel at a cost of over $50,000,000, and the Federal Government furnished the navigable water from Lake Michigan. By acts of Congress of March 3, 1899 (30 Stat., p. 1121); act of June 6, 1900 (31 Ibid., p. 580); act of June 13, 1902 (32 Ibid., p. 364); act of June 25, 1902 (36 Ibid., pp. 630, 659-60), Congress has appropriated moneys for the survey and improvement of the Des Plaines and thereby impressed the Federal character upon it. That the Federal part of the improvements has not yet been built is not controlling. It is the act of Congress and not the subsequent act of the laborer in making the excavation which fixes the Federal character. "When Congress has by any expression of its will, occupied the field, that action is conclusive." Wisconsin v. Duluth, 96 U. S. 379, 387.

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The act of Congress of March 3, 1899 (30 Stat., p. 1146), specifically appropriates $200,000 for the survey of the Des Plaines, and that of June 25, 1910 (36 Stat., pp. 630, 659-60), appropriates $1,000,000 for its improvement, upon coöperation by the State of Illinois, as a navigable water of the United States; and §§ 9 and 10 of the former (pp. 1146, 1151) forbid the damming of such streams. These acts apply to the Des Plaines and give the State a special interest which it can protect by suit. The lands constituting the site were canal lands granted by the U. S. to the State of Illinois for navigation purposes and are impressed with a trust therefor; and the State while owning the lands enacted the statute of 1839 dedicating the Des Plaines as a highway to be used in

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Argument for Plaintiffs in Error.

connection with the canal. Such dedication is binding. McConnell v. Lexington, 12 Wheat. 582; Morris v. United States, 174 U. S. 196; Bennett v. Chicago &c. R. Co., 73 Fed. Rep. 696; Union Canal Co. v. Landis, 9 Watts, 228. The state legislature to whom Congress confided the protection of the stream, by the act of December 6, 1907, ordered this suit brought; and by the act of 1911, ordered this proceeding to review same in this court.

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The existence of similar right of action on the part of the Federal Government does not divest the right of the State. Georgia v. Tennessee Copper Co., 206 U. S. 230.

The State has the right to maintain its suit as parens patria to enforce rights conferred by Federal laws upon it and its people. Missouri v. Illinois, 180 U. S. 208, 242-4, 200 U. S. 496; Kansas v. Colorado, 185 U. S. 125, 206 U. S. 46; Georgia v. Tennessee Copper Co., 206 U. S. 230; Illinois Central R. Co. v. Illinois, 146 U. S. 387; Am. Express Co. v. Michigan, 177 U. S. 404.

The State may assert a right in its own courts under Federal laws and is not concluded by the judgment of its own court. It is entitled to a writ of error from this court thereon. New Jersey v. Yard, 95 U. S. 104; Alabama v. Schmidt, 232 U. S. 168.

The act of Congress of March 3, 1899, gives the state legislature the authority to permit or prevent the damming of a stream whose navigable part is in one State. The action of the state legislature in exercising this Federal grant of authority presents Federal questions for review. United States v. Bellingham Boom Co., 176 U. S. 211; Cummings v. Chicago, 188 U. S. 410, 431.

The State, like any other party specially affected by a breach of Federal law, may maintain suit for its violation. Hubbard, Recr. of Hudson Co., v. Fort et al., State Officers of New Jersey, 188 Fed. Rep. 993; Wilson, Atty. Gen. of New Jersey, v. Hudson Co., 76 N. J. Eq. 543.

And the jurisdiction to review the judgment in such

Argument for Plaintiffs in Error.

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suit is not abridged by the fact that the plaintiff elected to pursue an ancient remedy in the state court. Belden v. Chase, 150 U. S. 674, 691. Egan v. Hart, 165 U. S. 138, does not apply, because there the state court found the facts, here it sustained a demurrer. Here the entire evidence is certified up and shows facts diametrically opposite to those in Egan v. Hart. There the riparian owner sought to enjoin the public work, viz.: The erection of a public levee by concurrent action of state and Federal Government, from going on. Here the State seeks to enjoin the riparian owner from obstruction in order that public work, in which state and Federal Government participate, may go on. The levee in Egan v. Hart was authorized by state legislation, but here the proposed dam is not so authorized, but on the contrary is forbidden by state legislation. The bayou in Egan v. Hart connected with nothing. The Des Plaines connects the Great Lakes with the Mississippi. There the public levee obstructed high water only; here the private defendant proposes to take exclusive occupation of the stream. Egan v. Hart was decided before the enactment of the act of Congress of 1899 which establishes a new and different rule.

The judgment of the state court was reached (1) by erroneously disregarding the permanent improvements in the stream and attempting to deal with it as in a state of nature; (2) and by erroneously disregarding the only available evidence of a state of nature, viz.: That contained in the books of history, geography, travel and Government survey. The state of nature ceased to exist in 1833, and there was no living witness in 1908, who could testify thereto. But although altered, the river continued in use until 1848. As Federal questions were involved this court applies its own standards and rules to the question of navigability and to the evidence. Mackay v. Dillon, 4 How. 421, 447.

Defendant claims only as a riparian owner whose rights

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Argument for Plaintiffs in Error.

are subject to the paramount right of, and changing needs of navigation. West Chi. St. R. Co. v. Chicago, 201 U. S. 506, 520; Lewis, Oyster &c. Co. v. Briggs, 229 U. S. 82, affirming 198 N. Y. 287.

The "decision" or "opinion" of the state Supreme Court on the question of artificial navigability alleged in the bill and demurred to by defendant, cannot operate as a finding of facts. Stone v. United States, 164 U. S. 380; Saltonstall v. Birtwell, 150 U. S. 417; Jackson v. United States, 230 U. S. 1, 18.

Modern developments of shallow draft navigation by boats propelled by gasoline and electricity have brought many streams which were navigated before the use of steamboats and then temporarily disused back into use as navigable streams. The variations in the art do nót divest the rights of the public. In re Debs, 158 U. S. 564; Phila. Co. v. Stimson, 223 U. S. 605, 634-5; Pennsylvania Co. v. Wheeling Bridge, 18 How. 421, 431.

Where Federal and state action are interwoven upon a subject and Federal questions are presented, the decision of the state court is not conclusive but is reviewable here; and this court will determine the scope and significance of the Federal questions and the effect of the evidence thereon for itself. Missouri v. Elliott, 184 U. S. 530; Kaukana v. Green Bay Canal, 142 U. S. 254, 269; Green Bay & Canal Co. v. Patten Paper Co., 172 U. S. 58; Chapman v. Goodnow, 123 U. S. 540; C., B. & Q. R. Co. v. People, 200 U. S. 561; Gaar, Scott & Co. v. Shannon, 223 U. S. 468, 471; West Chicago St. R. Co. v. Chicago, 201 U. S. 506, 519, 520; Furman v. Nichol, 8 Wall. 44; Dower v. Richards, 151 U. S. 658, 667; Mackay v. Dillon, 4 How. 421, 447. The contention that there was no evidence tending to establish liability under a Federal statute, itself involves a Federal question. St. Louis, I. M. & S. R. Co. .. McWhirter, 229 U. S. 265.

"Navigable stream" as a term in the Federal statutes

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