1. The navigability of a stream, for the purpose of bringing it
within the terms "navigable waters of the United States," does not
depend upon the mode by which commerce is conducted upon it, as
whether by steamers, or sailing vessels, or Durham boats, nor upon
the difficulties attending navigation, such as those made by falls,
rapids, and sandbars, even though these be so great as that while
they last, they prevent the use of the best means, such as
steamboats, for carrying on commerce.
Page 87 U. S. 431
It depends upon the fact whether the river in its natural state
is such as that it affords a channel for useful commerce.
2. These doctrines applied to the Fox River in Wisconsin, a
river whose navigability was originally so much embarrassed by
rocks, rapids &c., as that only Durham boats could use the
stream, but which afterwards, by canals, locks, and other
artificial means was so much improved as that steamboats could use
it freely, the river having, however, never, in its natural state,
been a channel for useful commerce.
In the southern part of the State of Wisconsin, about a mile and
a half east of Portage City and at a point about equidistant from
the eastern and western boundaries of the state, rises the Fox
River. The stream flows in a northeasterly direction, through Lake
Winnebago into Green Bay, thence into Lake Michigan, so connecting
through that lake and Lakes Huron, Erie, and Ontario with the River
St. Lawrence and other great waters having their hydrographic basin
on the Atlantic coast and discharging themselves into the Atlantic
Ocean.
In a bend before Portage City sweeps the Wisconsin River, which,
rising in the regions far northwest of the place just named, before
arriving at Portage City runs eastwardly, and then turning to the
west and flowing a certain distance falls into the Mississippi
River. In this way a natural watercourse has been always open from
the headwaters of the Mississippi through the Wisconsin River to
the spot now known as Portage City.
Of course when a "portage," or carriage by land, was made of
merchandise from the Wisconsin River at Portage City to the sources
of Fox River, less than two miles east, the merchandise coming from
the headwaters of the Mississippi was on waters whose course was
towards the Atlantic Ocean.
In its natural state, there were, however, in parts of the Fox
River rapids and falls. At Grand Chute there was a rock making a
fall two feet perpendicular, and below certain rapids known as the
De Pere, the navigation was
Page 87 U. S. 432
especially difficult. There were many other similar though less
difficult places. All these embarrassed the navigation of early
days, but they did not destroy nor even much arrest it. The stream
was always used for purposes of trade, including especially the
great fur trade, a trade carried on before our Revolution, and when
French and British were pursuing their adventurous commerce far
into the savage regions of the Northwest. Smith, the historian of
Wisconsin, states [
Footnote 1]
that even so far back as 1718, one of "the great avenues from the
St. Lawrence to the Mississippi was by way of Fox and Wisconsin
Rivers." In 1763, Marquette and Joliet, French explorers of the
source of the Mississippi, followed the line of the two streams
mentioned. The stream was then navigated by long, narrow boats,
called Durham boats -- vessels from seventy to one hundred feet
long and twelve broad, drawing, when loaded, from two to two and a
half feet of water -- which men would push with poles or propel by
oars or have dragged by horses and mules, sometimes, in very
shallow water, wading alongside and pushing the boats onward
themselves. At places where progress on the stream was
impracticable, the vessel would be unloaded and a "portage" made
till the navigator had got beyond the difficult place, and then a
reshipment would be made of the merchandise into some other boat
beyond or into the same boat, which, unloaded and drawing less
water than before, could be got across the place that in a loaded
state had stopped it. Arriving at the very source of the Fox River,
a "portage" of less than two miles would be made, and the
merchandise was on the Wisconsin, and thence it floated to the
Mississippi. In May, 1838, a regular line of Durham boats was
advertised to run from Green Bay, near Lake Michigan, to the
portage at the head of the Fox River.
By the Ordinance of 1787 [
Footnote 2] for the government of the Northwest Territory,
it was enacted that:
"The navigable waters leading into the Mississippi and St.
Page 87 U. S. 433
Lawrence, and
the carrying places between the same,
shall be common highways, and forever free as well to the
inhabitants of the said territory as to the citizens of the United
States and those of any other states that may be admitted into the
confederacy, without any tax, impost, or duty therefor."
This clause was substantially enacted in the Constitution of
Wisconsin, which provides [
Footnote
3] that:
"The river Mississippi and the navigable waters leading into the
Mississippi and St. Lawrence, and the carrying places between the
same, shall be common highways and forever free as well to the
inhabitants of the state as to the citizens of the United States,
without any tax, impost, or duty therefor."
By the Act of Congress of 1846, [
Footnote 4] passed on the admission of Wisconsin as a
state into the Union, a quantity of land was granted to the
state:
"For the purpose of improving the navigation of the Fox and
Wisconsin Rivers, in the Territory of Wisconsin, and of
constructing the canal to unite the said rivers at or near the
portage."
And it was provided that the:
"Said rivers, when improved, and the said canal, when finished,
shall be and forever remain a public highway for the use of the
government of the United States, free from any toll or other charge
whatever, for the transportation of the mails or for any property
of the United States or persons in their service passing upon or
along the same."
The State of Wisconsin accepted the grant, and, pursuant to the
authority and power vested in the state, a company was incorporated
by an Act approved July 6, 1853, for the improvement of the Fox and
Wisconsin Rivers. That act vested in the corporation all the rights
and privileges granted to the state by the act of Congress. And the
improvement company, in carrying out the object of its creation,
built dams, locks, and canals in Fox River from Portage City to
Page 87 U. S. 434
below De Pere Rapids. The works of this company were on a grand
scale, and by them Fox River was changed from its natural condition
to an improved thoroughfare, for the use of which all boats were
required to pay toll. It became the property of and was exclusively
managed by a corporate body, with power to demand and receive tolls
from all crafts passing through the locks, not excepting boats
enrolled and licensed for coasting trade.
In consequence of the acts of Congress and of the state and of
the increase of trade from the Northwest over the Wisconsin River
across the portage and upon the Fox River and the lakes, the Fox
River was cleared of the obstructions caused by its rapids or
falls, and the difficult or impracticable passes were removed by
locks, canals, dams, and other artificial navigation, so that there
was now, and had been for several years, uninterrupted water
communication for steam vessels of considerable capacity from the
Mississippi to Lake Michigan, and thence to the St. Lawrence,
through the Wisconsin and Fox Rivers, and steamboats had passed and
were constantly passing over these rivers with passengers and
freight destined to points and places outside of the State of
Wisconsin.
In this state of things, the government libeled the steamer
Montello in admiralty for noncompliance with certain acts
of Congress making enrollment and license, and certain provisions
as to steam valves necessary for all vessels of the tonnage of
which the
Montello was, navigating the navigable waters of
the United States. The owners of the steamer denied that the Fox
River was "navigable water" of the United States, within the Act of
Congress, and whether it was so was the question in the case.
The case had been here before, [
Footnote 5] but the libel was defective and the evidence
insufficient to determine the question, and it was remanded for
further proceedings, to enable the parties by new allegations and
evidence to present the exact character of Fox River as a navigable
stream. This was
Page 87 U. S. 435
now done, and there was therefore nothing now in the way of a
correct solution of the inquiry.
The court below -- resting its decision on the ground that
before the navigation of the river was artificially improved, there
had been numerous obstructions to a continuous navigation,
especially below the De Pere Rapids -- decided that the river was
not a part of the public navigable waters of the United States
within the doctrine laid down in
The Daniel Ball [
Footnote 6] and
The Montello,
[
Footnote 7] and dismissed the
libel. The United States appealed, and now assigned as error:
1. That by the Ordinance of 1787 and subsequent acts of
Congress, as well as by the Constitution of Wisconsin, the Fox
River was declared and made part of the public navigable waters of
the United States, and consequently fell within the doctrine in
respect of that class of waters laid down by this Court, and
2. That the Fox River was a part of the navigable waters of the
United States notwithstanding the fact that its navigation was
defective by reason of the falls and rapids, which had been
remedied of late times by artificial navigation.
Page 87 U. S. 439
MR. JUSTICE DAVIS delivered the opinion of the Court.
This Court held in the case of
The Daniel Ball,
[
Footnote 8] that those rivers
must be regarded as public navigable rivers in law which are
navigable in fact. And they are navigable in fact when they are
used or are susceptible of being used in their ordinary condition
as highways for commerce over which trade and travel are or may be
conducted in the customary modes of trade and travel on water. And
a river is a navigable water of the United States when it forms by
itself, or by its connection with other waters, a continued highway
over which commerce is or may be carried with other states or
foreign countries in the customary modes in which such commerce is
conducted by water. [
Footnote
9] Apply these tests to the case in hand and we think the
question must be answered in the affirmative.
The Fox River has its source near Portage City, Wisconsin, and
flows, in a northeasterly direction, through Lake Winnebago into
Green Bay, and thence into Lake Michigan, and by means of a short
canal of a mile and a half it is connected at Portage City with the
Wisconsin River, which empties into the Mississippi. From its
source to Oshkosh, the river is frequently spoken of as the "Upper
Fox." From Lake Winnebago to Green Bay it is called the "Lower
Fox." There are several rapids and falls in the river, but the
obstructions caused by them have been removed by artificial
Page 87 U. S. 440
navigation, so that there is now and has been for several years
uninterrupted water communication for steam vessels of considerable
capacity from the Mississippi to Lake Michigan and thence to the
St. Lawrence through the Wisconsin and Fox Rivers, and steamboats
have passed and are constantly passing over these rivers with
passengers and freight destined to points and places outside of the
State of Wisconsin.
It is said, however, that although the Fox River may now be
considered a highway for commerce over which trade and travel are
or may be conducted in the ordinary modes of trade and travel on
water, it was not so in its natural state, and therefore is not a
navigable water of the United States within the purview of the
decisions referred to.
It is true, without the improvements by locks, canals, and dams,
Fox River, through its entire length, could not be navigated by
steamboats or sail vessels, but it is equally true that it formed,
in connection with the Wisconsin, one of the earliest and most
important channels of communication between the Upper Mississippi
and the lakes. It was this route which Marquette and Joliet took in
1673 on their voyage to discover the Mississippi, and the immense
fur trade of the Northwest was carried over it for more than a
century. [
Footnote 10]
Smith, in his History of Wisconsin, [
Footnote 11] says:
"At this time (1718), the three great avenues from the St.
Lawrence to the Mississippi were one by the way of the Fox and
Wisconsin Rivers, one by way of Chicago, and one by the way of the
Miami of the Lakes, when, after crossing the portage of three
leagues over the summit level, a shallow stream led into the Wabash
and Ohio."
It is therefore apparent that it was one of the highways
referred to in the Ordinance of 1787, and indeed among the most
favored on account of the short portage between the two rivers. In
more modern times and since the settlement of the country and
before the improvements resulting in an unbroken navigation
Page 87 U. S. 441
were undertaken, a large interstate commerce has been
successfully carried on through this channel. This was done by
means of Durham boats, which were vessels from seventy to one
hundred feet in length, with twelve feet beam, and drew when loaded
two to two and one-half feet of water. These boats, propelled by
animal power, were able to navigate the entire length of Fox River
with the aid of a few portages, and would readily carry a very
considerable tonnage.
In process of time, as Wisconsin advanced in wealth and
population and had a variety of products to exchange for the
commodities of sister states and foreign nations, Durham boats were
found to be inadequate to the wants of the country, and Congress
was appealed to for aid to improve the navigation of the river so
that steam power could be used. This aid was granted, and since the
river was improved commerce is carried over it in one of the usual
ways in which commerce is conducted on the water at the present
day. But commerce is conducted on the water, even at the present
day, through other instrumentalities than boats propelled by steam
or wind. And independently of the Ordinance of 1787, declaring the
"navigable waters" leading into the Mississippi and St. Lawrence to
be "common highways," the true test of the navigability of a stream
does not depend on the mode by which commerce is or may be
conducted, nor the difficulties attending navigation. If this were
so, the public would be deprived of the use of many of the large
rivers of the country over which rafts of lumber of great value are
constantly taken to market.
It would be a narrow rule to hold that in this country, unless a
river was capable of being navigated by steam or sail vessels, it
could not be treated as a public highway. The capability of use by
the public for purposes of transportation and commerce affords the
true criterion of the navigability of a river, rather than the
extent and manner of that use. If it be capable in its natural
state of being used for purposes of commerce, no matter in what
mode the commerce may be conducted, it is navigable in fact and
becomes
Page 87 U. S. 442
in law a public river or highway. Vessels of any kind that can
float upon the water, whether propelled by animal power, by the
wind, or by the agency of steam, are or may become the mode by
which a vast commerce can be conducted, and it would be a
mischievous rule that would exclude either in determining the
navigability of a river. It is not, however, as Chief Justice Shaw
said, [
Footnote 12]
"every small creek in which a fishing skiff or gunning canoe can
be made to float at high water which is deemed navigable, but, in
order to give it the character of a navigable stream, it must be
generally and commonly useful to some purpose of trade or
agriculture."
The learned judge of the court below rested his decision against
the navigability of the Fox River below the De Pere Rapids chiefly
on the ground that there were, before the river was improved,
obstructions to an unbroken navigation. This is true, and these
obstructions rendered the navigation difficult, and prevented the
adoption of the modern agencies by which commerce is conducted. But
with these difficulties in the way commerce was successfully
carried on, for it is in proof that the products of other states
and countries were taken up the river in its natural state from
Green Bay to Fort Winnebago, and return cargoes of lead and furs
obtained. And the customary mode by which this was done was Durham
boats. As early as May, 1838, a regular line of these boats was
advertised to run from Green Bay to the Wisconsin portage.
[
Footnote 13] But there were
difficulties in the way of rapid navigation even with Durham boats,
and these difficulties are recognized in the Ordinance of 1787, for
not only were the "navigable waters" declared free, but also the
"carrying-places" between them, that is, places where boats must be
partially or wholly unloaded and their cargoes carried on land to a
greater or less distance. Apart from this, however, the rule laid
down by the district judge as a test of navigability cannot be
adopted, for it would exclude many of the great rivers of the
country which were so interrupted by rapids as to require
artificial means to enable
Page 87 U. S. 443
them to be navigated without break. Indeed there are but few of
our fresh water rivers which did not originally present serious
obstructions to an uninterrupted navigation. In some cases, like
the Fox River, they may be so great while they last as to prevent
the use of the best instrumentalities for carrying on commerce, but
the vital and essential point is whether the natural navigation of
the river is such that it affords a channel for useful commerce. If
this be so, the river is navigable in fact, although its navigation
may be encompassed with difficulties by reason of natural barriers
such as rapids and sand bars.
The views that we have presented on this subject receive support
from the courts of this country that have had occasion to discuss
the question of what is a navigable stream. [
Footnote 14]
From what has been said it follows that Fox River is within the
rule prescribed by this Court in order to determine whether a river
is a navigable water of the United States. It has always been
navigable in fact, and not only capable of use, but actually used
as a highway for commerce in the only mode in which commerce could
be conducted before the navigation of the river was improved. Since
this was done, the valuable trade prosecuted on the river by the
agency of steam has become of national importance. And emptying as
it does into Green Bay, it forms a continued highway for interstate
commerce. The products of other states and foreign countries, which
arrived at Green Bay for points in the interior were formerly sent
forward in Durham boats, and since the completion of the
improvements on the river, these products are reshipped in a small
class of steamboats. It would be strange indeed if this difference
in the modes of conducting commerce, both of
Page 87 U. S. 444
which, at the times they were employed, were adapted to the
necessities of navigation, should operate a change upon the
national character of the stream.
Before the Union was formed and while the French were in
possession of the territory, the Wisconsin and Fox Rivers
constituted about the only route of trade and travel between the
Upper Mississippi and the great lakes. And since the territory
belonged to us, this route has been regarded of national
importance. To preserve the national character of all the rivers
leading into the Mississippi and St. Lawrence and to prevent a
monopoly of their waters was the purpose of the Ordinance of 1787,
declaring them to be free to the public, and so important was the
provision of this ordinance deemed by Congress that it was imposed
on Wisconsin as a condition of admission into the Union.
Congress also, when the state was admitted, made to it a grant
of lands, in order that the Fox and Wisconsin might be united by a
canal, their navigation improved, and the rivers made in fact what
nature meant they should be -- a great avenue for trade between the
Mississippi and Lake Michigan. The grant was accepted, the
navigation improved, and the canal constructed. These objects were,
however, accomplished by a private corporation chartered for the
purpose, which was allowed to charge tolls as a source of profit.
The exaction of these tolls created dissatisfaction outside of the
state, and Congress, in 1870, in response to memorials on the
subject of the importance of these rivers as a channel of commerce
between the states, passed an act authorizing the general
government to purchase the property, and after it was reimbursed
for advances, to reduce the tolls to the lowest point which should
be ascertained to be sufficient to operate the works and keep them
in repair. [
Footnote 15]
Although this legislation was not needed to establish the
navigability of these rivers, it shows the estimate put by Congress
upon them as a medium of communication between the lakes and the
Upper Mississippi.
Page 87 U. S. 445
It results from these views that steamboats navigating the
waters of the Fox River are subject to governmental regulation.
Decree reversed and cause remanded for further proceedings
in conformity with this opinion.
[
Footnote 1]
History of Wisconsin, vol. 1, p. 81.
[
Footnote 2]
Article 4.
[
Footnote 3]
Article 9, section 1, Revised Statutes of Wisconsin, 1858, pp.
40, 1070.
[
Footnote 4]
9 Stat. at Large p. 83.
[
Footnote 5]
78 U. S. 11
Wall. 414.
[
Footnote 6]
77 U. S. 10 Wall.
557.
[
Footnote 7]
78 U. S. 11 Wall.
411.
[
Footnote 8]
77 U. S. 10 Wall.
557.
[
Footnote 9]
The Montello,
11 Wall. 411.
[
Footnote 10]
Parkman's Discovery of the Great West 52
et seq.; 3
Bancroft's History of the United States 156, 157.
[
Footnote 11]
Volume 1, page 81.
[
Footnote 12]
21 Pickering 344.
[
Footnote 13]
Doty v. Strong, 1 Pinney 316.
[
Footnote 14]
Moore v. Sanborn, 2 Mich. 519;
Brown v.
Chadbourne, 31 Me. 1;
People v. Canal Appraisers, 33
N.Y. 461;
Morgan v. King, 35
id. 459;
Flanagan v. Philadelphia, 42 Pa.St. 219;
Monongahela
Bridge Co. v. Kirk, 46
id. 112;
Cox v.
State, 3 Blackford 193;
Hogg v. Zanesville Canal Co.,
5 Ohio 410;
Hickok v. Hine, 23 Ohio State 527;
Jolly
v. Terre Haute Bridge Co., 6 McLean 237;
Rowe v. Granite
Bridge Co., 21 Pickering 346;
Illinois River Packet Co. v.
Peoria Bridge Co., 38 Ill. 467;
Harrington v.
Edwards, 17 Wis. 586.
[
Footnote 15]
16 Stat. at Large 189.
