Economy Light & Power Co. v. United States

Decision Date21 January 1919
Docket Number2525.
Citation256 F. 792
PartiesECONOMY LIGHT & POWER CO. v. UNITED STATES.
CourtU.S. Court of Appeals — Seventh Circuit

December 14, 1909, the United States filed its bill of complaint against the Economy Light & Power Company, alleging that said company had, without the consent of Congress and without authority of the Legislature of Illinois, commenced the construction of a dam in the Desplaines river at a point in Grundy county, Ill., and that the portion of the Desplaines river in which the construction of the dam had been commenced was navigable water of the United States, and praying the court to order, adjudge, and decree said Desplaines river to be a navigable river and one of the navigable waters of the United States; that the portion of the dam constructed be held to be in violation of the provisions of section 9 of the act of March 3, 1899 (30 Stat. 1151, c. 425 (Comp. St. Sec 9971)), and ordering its removal, and that the defendants and its officers and agents and all persons acting under them be enjoined perpetually from placing any further obstruction in said river, and from doing any other act or performing any other work in connection with the construction of said dam.

On February 28, 1910, the defendant filed its answer, admitting the commencement of the construction of a dam as alleged, but denying the navigability of the portion of the Desplaines river in which said dam was being constructed. A very large amount of evidence was taken, the abstract containing 3,186 printed pages. From a decree entered May 25, 1917 perpetually enjoining the defendant, its officers, agents etc., as prayed, defendant appeals.

Frank H. Scott, of Chicago, Ill., for appellant.

Charles F. Clyne and Clarence N. Goodwin, both of Chicago, Ill., for appellee.

Before BAKER and EVANS, Circuit Judges, and SANBORN, District Judge.

SANBORN District Judge (after stating the facts as above).

The Desplaines up to 1894.-- The Chicago-Desplaines-Illinois water route, used from 1673 to 1825 by explorers and in the fur trade, was made up of portions of the Chicago and Desplaines rivers, now some eight miles apart. It includes the Chicago river from its mouth on Lake Michigan to Robey street, Chicago, on the West fork of the South branch, thence westerly, by water or portage, to Mud Lake, about two miles, thence to the Desplaines near Riverside, two miles, down the river to the Illinois, made by the confluence of the Desplaines and Kankakee. The part of this route between the Chicago and Desplaines is called the Chicago divide. The Desplaines river rises near the county line between Racine and Kenosha counties, Wis., and runs in a southerly direction, parallel substantially to the west shore of Lake Michigan, through Lake and Cook counties, Ill., until it reaches Riverside, some 11 miles from the mouth of the Chicago river; thence it takes a southerly direction through Cook and Will counties to its confluence with the Kankakee river near the east line of Grundy county. The original area of the Desplaines river basin was 1,428 square miles, and with the changes which have been made the present area is taken at 1,392 square miles. The Desplaines river basin is usually divided into the upper Desplaines and the lower Desplaines; the term upper Desplaines applying to that portion above Riverside. The upper Desplaines basin has an area of 633 square miles, a general length of about 60 miles, and a general width of about 10 miles, and is a true basin-- has practically no true tributary basins, except Salt creek, which has about 110 miles, entering at Riverside. It is a rolling country, originally covered with one-half to one-third in timber. Its general declivity by its flood plane is about 1 1/2 feet per mile. The river bed is cut as groove in a prairie, rather than the ordinary river bed, with an overflow or flood plane on either side. Originally it had a considerable quantity of swamp, marsh, and bog at headwaters, and in Lake county and in portions of Cook county and also upon Salt creek in Du Page county, and a lake development in Lake county, from which that county derives its name.

The characteristics of the Lower Desplaines basin, that portion below Lyons or Riverside, are that it covers by the general course of the valley about 42 miles to the confluence with the Kankakee, and has a total descent of about 102 or 103 feet. It has a true subbasin in the Du Page river, which covers 366 square miles. The total area is 795 square miles below Riverside, but outside of the Du Page river this area is only 429 miles. The valley in itself is not a characteristic valley, like the Upper Desplaines, but has the appearance of being an old water course or outlet from the Great Lakes, in which the modern stream follows through remnants of an ancient stream of much greater magnitude, a succession of pools and wide expanses, with intermediate channels, which have not yet developed to their proper proportions, connecting these pools and water stretches. The river valley or river has two considerable tributaries aside from the Du Page, in Hickory creek and Jackson creek, but otherwise the drainage is essentially marginal or shore drainage.

Beginning within a mile of the township line between Riverside and Lyons is a long level expanse, known as the 12-mile level, consisting of a succession of water expanses and connecting straits or channels, from 150 feet up to a quarter or an eighth of a mile in width, in places, and with varying depths up to 10 or 15 feet in localities; these water expanses having a mud bottom which seem to be more vegetable deposits than alluvial, and which indicate originally much greater depth, and margined in by a vegetable growth. These expanses were for a long time used as ice fields by the ice interests which had their market in Chicago. Below the 12-mile level is a succession of ponds and shallow connections in the rock, like Goose Lake and Round Lake, and others between Romeo and the 12-mile level. This whole stretch is well described in the original land survey as a succession of swamps, ponds, lakes, and marshes connected by currents.

Below Romeo, which is 6 miles below Lyons, there is a declivity at the rate of 7 feet per mile from the Romeo highway down to the head of Lake Joliet, a distance of 11 miles, pretty uniformly distributed. Thence for a distance of about 13 miles, between that and the mouth of the river, there are some 10 miles occupied by pools, or Lake Joliet, which has a length of nearly 6 miles and has a width of 500 to 900 feet, and a depth originally up to 15 or 20 feet, and then a pool of over a mile in length immediately below Treat's Island rapids; then Lake Du Page, some 13 miles in length, with a width of about 350 feet on the average, and with a depth of 10 feet and upwards, these pools being connected by intermediate rapids like the one at Treat's Island and the one near the mouth of the Kankakee, and the reach of swifter and shallower water between the pool below Treat's Island and the head of Lake Du Page. These distances are given only approximately, and to show some of the characteristics of the stream. This description applies to the Desplaines river as it was known up to about 1894, when the Sanitary District works changed the conditions very radically through the valley above the city of Joliet, between there and Lyons or Riverside. The proportion of the Desplaines river itself from the end of the portage road to its mouth, or confluence with the Kankakee, that would consist of pools, would be about 60 per cent. The total distance from the portage road to the confluence with the Kankakee is about 44.5 miles. In that distance there would be the so-called 12 mile level, which is 13.7 miles, Lake Joliet, the pool below Treat's Island, and Lake Du Page, aggregating 10 miles, and Goose Lake and Round Lake, and some other stretches unnamed, amounting in all to about 27 or 28 miles, out of a total of 44.5. The distance from dam No. 1 to the mouth of the river is 15.72 miles, of which about 10 miles consists of pools. This stretch is now more particularly in question. The condition of these pools, if the Desplaines river were to run dry, that is, no water pass from pool to pool, would be that Lake Joliet would be practically available for boats as before; the depth in it being from 20 to 25 feet at the maximum, and a large proportion of it having more than 10 feet.

The distance from Lake Michigan to the mouth of the Desplaines river is 58.32 miles, made up as follows:

From Lake Michigan to Ashland avenue, which is substantially at the forks of the South Branch of the Chicago river . . . 5.5 miles

Ashland avenue to Ogden dam, which is across the old portage slough, on the range line, range 12, 13, north of Summit . . . 8.3

The so-called 12-mile level, actual length . . . 13.7

From 12-mile level to Isle la Cache . . . 8.4

Isle la Cache to dam No. 1 . . . 3.

Dam No. 1 to head of Lake Joliet . . . 3.

Head of Lake Joliet to mouth of Desplaines river . . . 12.72

58.32

A gauge record kept at Riverside for a period of 20 years, from the year 1886 to 1904, both inclusive, showed the water stood at above 18 feet on the Riverside gauge an average of 4.3 days per year; at or above 13.8 feet an average of 47.6 days per year; at or above 13 feet an average of 73.2 days per year; at an elevation of 12.4 feet an average of 116.2 days per year; at or above 11.85 feet an average of 190.65 days per year.

When the water stood at 10.5 at the head of the 12-mile level at Summit, corresponding to 13 feet on the Riverside gauge, and a volume of 600 second feet, the water in the portage swamp and channels connecting with the Desplaines river would be flowing over to the Chicago river to...

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