138 Statement of the Case. cause of the natural obstructions; nor does it prevent the exaction of a non-discriminatory charge for the use of such improvement. P. 157. 2. Ambiguity in a treaty may be resolved by practical construction. P. 158. 3. For the purpose of utilizing an international boundary stream (the Pigeon River) for transportation of lumber products, the State of Minnesota authorized a corporation to erect, and to collect tolls for the use of, sluiceways, booms and dams within her limits, complementing like structures on the other side of the international line made by another corporation under Canadian authority. Held: (1) A State may make reasonable provision for local improvement of a navigable stream until its authority is superseded by dominant Federal action. P. 158. (2) The fact that the stream forms part of an international boundary does not make this principle inapplicable. P. 158. (3) The Act of March 3, 1901, by which Congress expressly authorized the Minnesota corporation to improve part of the river next to an Indian reservation, on condition that it be open to free passage of timber cut from the reservation and passage of all other timber for a reasonable charge, was, by necessary implication, an approval of the improvements at other places, without which the purpose of the Act could not have been accomplished. P. 159. (4) This Act is not to be construed as abrogating or modifying the treaty provision (supra) but is a practical construction of it. P. 160. (5) The action of the Province of Ontario in providing for complementary works on the Canadian side of the boundary and authorizing tolls for their use, is also a practical construction of the treaty provisions. P. 161. (6) The structures and uses in question are among those recognized by the Treaty of January 11, 1909, with Great Britain, as " heretofore permitted." 36 Stat. 2448. P. 161. 63 F. (2d) 567, reversed. APPEAL from affirmance of a judgment dismissing a complaint, in an action brought by a Minnesota corporation against a Canadian corporation to recover tolls for the use of river improvements in the transportation of timber products. Argument for Appellant. 291 U.S. Mr. John D. Jenswold, with whom Mr. Bernard R. Goggins was on the brief, for appellant. The record and historical and geographical facts clearly indicate, if they do not show conclusively, that Pigeon River is non-navigable. The territorial sovereignty of the State extends to the international boundary at midstream. The maintenance of appellant's works and the collection of reasonable charges for their use is authorized by Act of Congress of March 3, 1901. Although this statute is not pleaded as a basis of appellant's rights, the Court must take judicial notice of it. The Act should be construed with a view to making it effective for the purpose intended which was to so improve the river, throughout its entire length, as to make it possible to get out timber, not only from the Indian Reservation, but from all other points. In the absence of regulation by Congress, the State may supply the needed regulation. The improvement and regulation of navigable waterways was long left largely to the States. It was not until 1890 that Congress assumed any material control and then only to a limited extent. Act of September 19, 1890, c. 907, § 10, 26 Stat. 426. Even under this statute obstructions to navigation authorized by the States might be constructed and continued without authority from Congress, the words "not affirmatively authorized by law" being construed as meaning authorization from either the state or federal government. It was not until 1899 that the entire control of navigable waters of the United States was withdrawn from the States and taken over by Congress by the Rivers and Harbors Act of that year. Act of March 3, 1899, 30 Stat. 138 Argument for Appellant. Since this enactment permission from the State as to navigable waters within its own territorial limits is still necessary in order to make the authority for the improvement complete and perfect. Montgomery v. Portland, 190 U.S. 89. As late as 1905 private corporations were authorized by Congress to improve navigable waters of the United States and to collect tolls therefor. Act of March 3, 1905, c. 1482, 33 Stat. 1117. Congress has, however, never assumed to regulate or control non-navigable waters. The power of the States over them remains as it always has been. Within their territorial limits they may either improve or authorize their improvement and may collect or authorize the collection of tolls therefor in the same manner as they formerly did in the case of navigable waters. Undoubtedly, Congress might, under the commerce clause, regulate interstate or foreign commerce over nonnavigable waters. The power has, however, never been exercised and, until it is, the power of the State is supreme and plenary. The portions of Pigeon River in which appellant's improvements are located were not "water communications" within the meaning of the treaty; they had never been "actually used" as such; hence the treaty does not inhibit appellant's improvements and collection of tolls. The words "as now actually used" refer back to and limit all that precedes; in other words, the treaty makes only such of the "water communications" and of the usual portages" along the boundary line and the Grand Portage as were then "actually used," "free and open to both countries. 66 When the treaty was made, the location and line of these portages and of the intervening water communications, was a matter of certain knowledge. Geographical Argument for Appellant. 291 U.S. knowledge of the region was then practically limited to this land-water trail itself. These portages, as then used, and the intervening water courses, as then used, constituted the boundary line first proposed by Lord Ashburton to Daniel Webster in their negotiations,-a line which, as he says, "has the advantage of being known and attended with no doubt or uncertainty in running it." This construction of the treaty is sustained not only by President Tyler's message submitting the treaty to the Senate, but also the diplomatic correspondence. Sen. Docs., 3d Sess., 27th Cong., Vol. 1. The term "water-communications" of itself implies a meaning of waters used as a means of communication. If this is not so, why was the word "waters" not used instead? The expression "free and open " does not imply freedom from charges for the use of special facilities provided, but means simply "common to the citizens and subjects of both countries,"-" thrown open to the use and enjoyment of the citizens of both countries on equal terms "; or in other words, "open without discrimination to the citizens of each, without direct tax, impost or duty." Appellant is a public service corporation. It is bound by Minnesota statutes and the Act of Congress to collect only "reasonable charges." These fall on everyone alike regardless of citizenship. Appellant is forbidden to discriminate. Distinguishing: Rainy Lake Boom Corp. v. Rainy River Lumber Co., 27 Ont.L.Rep. 131; Rainy Lake Boom Co. v. Rainy River Co., 162 Fed. 287. See Arrow River Co. v. Pigeon Timber Co., 1932 Canadian Sup. Ct. Rep. 495. The phrase "free and open as applied to navigation and commerce is not new. Similar provisions are contained in various state constitutions, enabling acts and the ordinance creating the Northwest Territory. The phrase 138 Argument for Appellee. has been construed as we contend it should be. Huse v. Glover, 119 U.S. 543; Sands v. Manistee River Imp. Co., 123 U.S. 288; Cardwell v. American River Bridge Co., 113 U.S. 210; Hamilton v. Vicksburg, 119 U.S. 280; Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 9; Duluth Lumber Co. v. St. Louis Boom & Imp. Co., 17 Fed. 419; Osborne v. Knife Falls Boom Co., 32 Minn. 412; In re Southern Wisconsin Power Co., 140 Wis. 245. The words "free and open" not infrequently appear in treaties between this country and Great Britain. 8th Art., Treaty of Paris, 8 Stat. 80; Treaty of Washington, 1871, Art. XXVI, 17 Stat. 863; Treaty Consenting to Panama Canal, Art. III, 32 Stat. 1903. See also Webster-Ashburton Treaty, Art. VII; Message of President Tyler, Sen. Docs., 3d Sess., 27th Cong., Vol. 1; Art. III of same Treaty; Root-Bryce Treaty of 1909, Art. I, 36 Stat. 2448. If the treaty forbids appellant's works and collection of tolls, it is superseded by the Act of Congress of 1901, supra. The use of Pigeon River is now controlled by the RootBryce Treaty of 1909, which impliedly repeals the Webster-Ashburton Treaty in so far as it may apply to Pigeon River. This later treaty permits appellant's acts alleged in the complaint. Mr. Edward L. Boyle, with whom Messrs. H. B. Fryberger and H. C. Fulton were on the brief, for appellee. The movement of forest products from Canada into and along Pigeon River is foreign commerce. Rainy River Boom Corp. v. Rainy River Lumber Co., 162 Fed. 287. Only the Government of the United States is authorized to regulate foreign commerce. The pulpwood in this case is cut from Canadian soil, handled by Canadian labor and put into the Arrow River, |