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Opinion of the Court.

Mr. Rush C. Butler, Mr. William E. Lamb, Mr. Stephen A. Foster and Mr. Cornelius Lynde filed a reply brief on behalf of the Chicago Association of Commerce.

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Mr. Joseph N. Teal for Portland Chamber of Commerce.

Mr. J. B. Campbell for the City of Spokane.

Mr. William A. Glasgow, Jr., for Giroux Consolidated Mines Co.

By leave of court, Mr. Alfred P. Thom filed a brief in behalf of certain interested parties.

MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

The eleven carriers who are appellees on this record filed with the Interstate Commerce Commission applications to be relieved from the long and short-haul clause of § 4 of the Act to Regulate Commerce, as amended by the act of June 18, 1910, c. 309, 36 Stat. 539, 547. After full hearing the Commission entered an order granting in certain respects the relief prayed but establishing a proportionate relation to be maintained between the lower rate for the longer haul and the higher rate for the shorter haul upon the basis of percentages which were fixed with reference to defined zones. The carriers refused to obey the order and filed their bill in the Commerce Court to enjoin its enforcement. An interlocutory injunction was ordered. The defendants moved to dismiss and on the overruling of the motions appealed from the interlocutory order, that case being No. 137. Subsequently upon the election of the defendants not to plead further, a final decree was entered and appealed from, that appeal being No. 163.

These cases are governed by the opinion in Nos. 136


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and 162 just decided. They were tried in the court below with the other cases, were decided by the same opinion, and, although different localities are involved, the questions presented are identical, and for the reasons given in the other cases, Nos. 136 and 162, the decree must be reversed and remanded to the proper District Court with directions to dismiss the bill for want of equity.




No. 179. Argued April 29, 30, 1914.—Decided June 22, 1914.

The provisions in the Ordinance for Government of the Northwest Territory and subsequent acts of Congress to the effect that navigable waters leading into the Mississippi and St. Lawrence rivers shall be common highways and forever free to the inhabitants of that Territory and of the United States do not determine navigability of any of the streams but only define rights dependent upon the existence of navigability.

There is no Federal right involved in the obstruction, or use by private owners, of a non-navigable stream wholly within a State.

The question of navigability of a river wholly within a State is purely one of fact, and where the state court has decided that such a river is non-navigable there is no right left to review.

A State has no Federal rights which it may exert for itself or on behalf of its citizens or of all the citizens of the United States in regard to a river wholly within its boundaries which the highest court of the State has declared to be non-navigable; nor are any such rights created by acts of Congress merely authorizing surveys for and esti


Argument for Plaintiffs in Error.

mates of cost of, improvements and not actually authorizing or appropriating for the same.

Writ of error to review 241 Illinois, 290, dismissed.

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THE facts, which involve the jurisdiction of this court under § 237, Judicial Code, to review a judgment of the state court based on a finding of non-navigability of a river wholly within the State, are stated in the opinion.

Mr. Merritt Starr and Mr. Horace Kent Tenney, with whom Mr. Elijah N. Zoline, Mr. John S. Miller, Mr. George Packard and Mr. Harry A. Parkin were on the brief, for plaintiffs in error:


The Illinois River and its North Fork, the Des Plaines, are connected with the Chicago River and Lake Michigan by the Chicago Sanitary and Ship Canal. By this means the Great Lakes are connected with the Mississippi. The Ship Canal pours 300,000 cubic feet per minute of water from Lake Michigan into the Des Plaines making it from 6 to 30 feet deep. In this chain of connected navigable waters the Des Plaines makes a link 15.6 miles long. In this link 15.6 miles long the river is from 400 to 600 feet wide and from 6 to 30 feet deep and descends 38 feet. At an island it narrows to 128 feet. In Lake Joliet it spreads out to 1,500 feet in width. A small island which formerly narrowed one place to 60 feet was blasted out and removed in building the Ship Canal. The narrowest place is 128 feet wide. At the dam site it is over 300 feet wide and 6 feet deep and actually navigable throughout. This 15.6 mile link of the Des Plaines receives this increment by Federal permit granted May 8th, 1899, under act of Congress of March 3, 1899, and was made navigable thereby. (U. S. Engrs. Report, 1899, Part I, pp. 40, 41; Ibid., 1900, Part I, p. 42; Chicago Sanitary District Proceedings, 1899, pp. 5675-6). This permanent change in the Des Plaines was made January 17, 1900. Defendant did

Argument for Plaintiffs in Error.

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not buy its riparian lands forming site of proposed dam on this link of the Des Plaines until December 15, 1906, after the change was complete, the former owner settled with for the change, and all claims of damage barred by the statute of limitations. The state statutes for the construction of the Ship Canal made full provision for compensation to riparian owners on the river into which the canal discharges. (Ill. R. S. 1912, c. 24, pp. 349–359.)

These connecting waters are navigable; and the 15.6 mile link of the Des Plaines is navigable. Escanaba v. Chicago (Chicago River), 107 U. S. 569; Huse v. Glover, (the Illinois River), 15 Fed. Rep. 292; 119 U. S. 543; Lussem v. Sanitary District (the Ship Canal), 192 Illinois, 404; Missouri v. Illinois, 200 U. S. 496; "An act to create Sanitary Districts and to remove obstructions in the Des Plaines and Illinois Rivers."

Illinois act of May 29, 1889, Ill. R. S. 1912, c. 24, par. 366, § 24, and concurrent Resolution on River Improvement, L. 1889, pp. 375-6: "An Act enabling the Sanitary District to Improve and Bridge Navigable Streams," Ill. Act of May 13, 1901, L. 1901, p. 164: "An Act to enlarge the corporate limits of the Sanitary District of Chicago and provide for Navigation," etc., Ill. Act of May 14, 1903, L. 1903, p. 113; Ill. Act of February 28, 1839, dedicating the Des Plaines as a highway, M. L. 1839, p. 208; Ill. Act of Dec. 6, 1907, declaring the Des Plaines navigable. Ill. R. S., p. 144. The Des Plaines in this 16 mile reach has always been navigable; it was the regular route of the fur trade and was the most navigated commercially of any waters in the State from 1700 to 1832. A multitude of books of geography, history and travel attest this. John Kinzie to U. S. Ter. Gov. Cass, U. S. Archives, Dept. of Interior, Ind. Office Book, 204, Letter Book, Vol. 1; Gov. Ninian Edwards to Secretary of War, VI Am. St. P. Ind. Aff. Vol. II, p. 65. Secretary Gallatin's Report on Means of Communication, 1808,

Argument for Plaintiffs in Error.

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Am. St. Papers, p. **735; U. S. Surveyor Hutchins in Imlay's Topographical Description, p. 503 (1778–1797); Gov. St. Clair's Report to Pres. Washington, 1790; 2 St. Clair Papers, p. 174; Treaty of Greenville Securing Water Passage, 1795; Am. St. P. Cl. 2, Ind. Add., Vol. I, p. 562; Duc de Choiseul's Memoir on Louisiana, “Affairs, etc., Correspondence Politique, Etats Unis." Supp. Vol. 6, fols. 106-112; Gov. Collot's Voyage dans L' Amerique Septrionale 1826; "Canal Communication between the Illinois River and Lake Michigan." H. R. 18th Cong. 2nd sess., Vol. I, ser. No. 172, finding "uninterrupted navigation from the river into the Lake."

There have been ten United States Surveys of the Des Plaines which treat it as navigable water of the United States, viz.: (1) U. S. Survey by Maj. S. H. Long, 1816–19 reports the Des Plaines as "affording a sufficient depth for boats of moderate draft." (Ex. Doc. 17, 16th Cong. 1st Sess.); (2) by U. S. Surveyor, John Walls, in 1821, who marked its "head of navigation" and that of the Chicago River and laid out "Portage Road" connecting the two; (3) by Gen. J. H. Wilson in 1867 (Ex. Doc. 16, H. R., 40th Cong., 1st sess.); (4) by Gen. Wilson in 1868 (14 U. S. St. L. 418-422; 1 U. S. Eng. Rep. 1868, pp. 459-465); (5) by Col. Macomb, 2 U. S. Eng. Rep. 1875, p. 525; (6) by Maj. Benyaurd, 3 U. S. Eng. Rep. 1884, pp. 195–7– 62; (7) by Col. Comstock, 2 U. S. Eng. Rep. 1887, pp. 2125-67; (8) in 1889 by Capt. Marshall, Ex. Doc. 264, U. S. Eng. Rep. 1890, App., JJ. pp. 2428–2550; (9) by Col. Barlow, 50 U. S. Eng. Rep. 1900, pp. 3857, 4 U. S. Eng. Rep. 1901, pp. 3061-2; (10) by Col. Ernst and a Board of Engineers; Ex. Doc. 263, H. R., 59th Cong., 1st sess.

The Secretary of War wrote to the Attorney General of Illinois informing him that the Des Plaines was a navigable water of the U. S., and that no permit had been granted for this dam. The letter of Gen. Oliver to Mr. Munroe

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