Argument for Defendant in Error.

234 U. S.

is to be defined by the Federal courts; and measured and tested by Federal standards the Des Plaines is and always has been navigable. The act of May 18, 1796, 1 Stat. c. 29, pp. 464-9) and the act of Congress of March 26, 1804, 2 Ibid., p. 227, containing these terms and dedicating streams as highways, apply. Des Plaines River Co. v. Schurmeyer, 7 Wall. 272. What they apply to is a Federal question for this court to decide. These Acts continued in force after the admission of Illinois. United States v. Sandoval, 231 U. S. 28; United States v. Gratiot, 14 Pet. 34. These acts of Congress were in force long before the invention of the steamboat and they protect shallow draft navigation. The defendant by denying the continued validity of these acts after the admission of Illinois drew them in question. Sharpleigh v. Surdam, 21 Fed. Cas. 1173-8; Jones v. Walker, 2 Paine, 688; S. C., 13 Fed. Cas. 1059-62. The Illinois courts applied the early established local definition and standard of navigability, which rejects rafting, passenger traffic and shallow draft navigation. Hubbard v. Bell, 54 Illinois, 110; Schulte v. Warren, 218 Illinois, 108. This standard so applied, is in conflict with the Federal standard as laid down in The Montello, 20 Wall. 430, and The Daniel Ball, 10 Wall. 557, and in the acts of Congress protecting rafting and shallow draft navigation. Rev. Stat., § 5254. Acts of Congress of July 5, 1884, c. 229, § 8 (6 Fed. St. An., p. 795), and of March 23, 1906, 34 Stat., c. 1130, § 40; United States v. Bellingham Boom Co., 176 U. S. 24; Passenger Cases, 7 How. 283; Gibbons v. Ogden, 9 Wheat. 1, at 189 and 215.

Mr. Frank H. Scott, with whom Mr. Gilbert E. Porter and Mr. Edgar A. Bancroft were on the brief, for defendant in error:

As no Federal question was decided by the state court adversely to plaintiff in error, this court has no jurisdiction. The assignments of error are predicated upon the

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Argument for Defendant in Error.

assumed existence of the one fact that the Des Plaines River is a navigable stream which is negatived by the judgment of the state court.

The question of navigability is purely one of fact; Egan v. Hart, 165 U. S. 188; and where the state court denies the existence of facts necessary to bring the case within the operation of Federal statutes, this court has no jurisdiction. Crary v. Devlin, 154 U. S. 619; Cameron v. United States, 146 U. S. 533.

Plaintiff in error contends that in the state court it set up and claimed the title, right, privilege and immunity to have the Des Plaines River preserved as a highway, free of obstruction by defendant in error's dam, under certain acts of Congress relating to navigable streams, and the Ordinance of 1787. The ordinance and acts relied on ceased to have any force in the State of Illinois upon its admission to the Union. Van Brocklin v. City of Tennessee, 117 U. S. 151; Escanaba Company v. Chicago, 107 U. S. 678; Hamilton v. Vicksburg &c. R. R. Co., 119 U. S. 280; Huse v. Glover, 119 U. S. 543, 546; Permoli v. First Municipality, 13 How. 589; Pollard v. Hagen, 3 How. 212; Dixon v. The People, 168 Illinois, 179; People v. Thompson, 155 Illinois, 451.

The provisions of these acts relied on do not refer to physical obstructions of navigable streams, but to political regulations which would hamper freedom of commerce, and they do not prohibit the construction of dams, even though such dams may completely obstruct navigation. Wilson v. Black Bird Creek Marsh Co., 2 Pet. 245; Pound v. Turck, 95 U. S. 462; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1-11, and cases cited therein; Cardwell v. American Bridge Co., 113 U. S. 205. Notwithstanding such acts, the rights of riparian owners are to be measured by the rules and decisions of the state courts. St. Anthony Falls Water Power Co. v. St. Paul Water Commissioners, 168 U. S. 349, 358. Under the laws of Illinois

Argument for Defendant in Error.

234 U. S. the riparian owner had the right to dam the Des Plaines River and have the benefit of the increased flow caused by artificial means. Druley v. Adams, 102 Illinois, 177; People v. Economy Light & Power Co., 241 Illinois, 290. The effect of the decision of the state courts that the Des Plaines River was not a navigable stream at once removed the question whether plaintiffs in error had any rights under those acts. Those acts apply in terms only to navigable streams, and the decision of the state court that the river is not navigable made it unnecessary for the court to pass upon the Federal question, if one existed. Egan v. Hart, supra; Chrisman v. Miller, 197 U. S. 313; King v. West Virginia, 216 U. S. 92; Mammouth Mining Co. v. Grand Cent. Min. Co., 213. U. S. 72; Chapman &c. Land Co. v. Bigelow, 206 U. S. 41; Waters-Pierce Oil Co. v. Texas, 212 U. S. 86; Rankin v. Emigh, 218 U. S. 27.

'Plaintiff in error also claims that under the act of March 3, 1899, it has the title, right, privilege and immunity to have the Des Plaines River preserved as a highway. This right was not set up or claimed in the trial court, or passed upon by the state Supreme Court, and the claim now made thereunder confers no jurisdiction upon this court. Under the rule of procedure in Illinois, points which could have been, but were not, raised in the trial court, will not be reviewed on appeal. Dunne v. Critchfield, 214 Illinois, 292, 297; McKenzie v. Penfield, 87 Illinois, 2840; Masonic Ass'n v. City of Chicago, 217 Illinois, 58-60; Griveau v. South Chicago City Railway Co., 213 Illinois, 633.

Where such a rule of procedure prevails, this court will not take jurisdiction to review a Federal question not raised in the trial court unless decided by the state court on appeal, Mutual Life Ins. Co. v. McGrew, 188 U. S. 291; Spies v. Illinois, 123 U. S. 131, 181; Chappell v. Bradshaw, 128 U. S. 132, 133; 3 Foster's Federal Practice, 5th ed., p. 2402; Ex parte Chadwick, 159 Fed. Rep. 576, 577, 578,

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Argument for Defendant in Error.

and no question under the act of 1899 was decided by the state Supreme Court.

Plaintiff in error's contention that the Federal improvement of the Des Plaines River in coöperation with the State of Illinois, confirms the Federal character of the stream, is based upon a false premise. No Federal improvement of the Des Plaines River has ever been made, and the State of Illinois has never taken any steps for the improvement of the river. The Sanitary District Act, which plaintiff in error relies upon, did not include in its scheme the improvement of the Des Plaines River for navigation. The purpose of that act was sanitation, and up to this time no deep waterway has been attempted either by the State or the Nation, and hence there has been no coöperation between them. The state Supreme Court has so held in this case. People v. Economy Power Co., 241 Illinois, 290, 331.

The acts of Congress of 1899, 1900, 1902, 1910, which plaintiff in error contends make appropriations for the improvement of the Des Plaines River and constitutes the exercise of jurisdiction over that river, merely make appropriations for surveys to determine the feasibility of improving the Des Plaines and Upper Illinois for navigation. Those acts recognized that the Des Plaines River was not navigable, and were not the exercise of jurisdiction over the river.

No permission for the construction of a dam was ever asked of the War Department or refused by it. The plans were submitted to the Department for the purpose of ascertaining whether they were in harmony with the plans for the deep waterway, and the Department held that they would be an aid to the deep waterway plans then under consideration, and would save to the United States a large sum of money in the construction of a deep waterway.

The War Department expressly held that the Des

Plaines River was not navigable, and that the United States had no jurisdiction over it, and that the act of 1899 did not apply to it. The State of Illinois is not entitled to restrain the construction of the dam because of the failure to procure a permit from the War Department under an act which the War Department has held does not apply to the stream.

MR. JUSTICE MCKENNA delivered the opinion of the court.

This was a proceeding brought in the Circuit Court of Grundy County, Illinois, being an information filed by the Attorney General of the State on behalf of the people of the State on the relation of the Governor, against defendant in error, the Economy Light & Power Company, to restrain that company from erecting a dam across the Des Plaines River and from causing the waters of the river to back up and overflow the lands of the State, to refrain from permitting the obstructions placed in the river to remain therein, and that certain deeds, leases and contracts made by the canal commissioners of the State to the company be declared null and void. The information was dismissed by the Circuit Court and its decree was affirmed by the Supreme Court. This writ of error was then sued out by plaintiffs in error.

A motion is made to dismiss on the grounds-(1) that no Federal question was decided by the Supreme Court adversely to plaintiffs in error. (2) The Federal questions sought to be raised in this court were not raised in the trial court and under the practice in Illinois were not open to review in the Supreme Court, and were not reviewed. (3) The Federal questions raised are without merit. (4) The decision of the Supreme Court is sustainable upon non-Federal grounds.

The motion makes necessary a consideration of the