256 U.S. 113 (1921), 104, Economy Light & Power Company v. United States

Docket Nº:No. 104
Citation:256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847
Party Name:Economy Light & Power Company v. United States
Case Date:April 11, 1921
Court:United States Supreme Court

Page 113

256 U.S. 113 (1921)

41 S.Ct. 409, 65 L.Ed. 847

Economy Light & Power Company


United States

No. 104

United States Supreme Court

April 11, 1921

Argued December 17, 1920




1. Artificial obstructions subject to abatement by public authority do not render nonnavigable in law a stream which, in its natural state, would be navigable in fact. P. 118.

2. The authority of Congress to prohibit added obstructions to a navigable stream is not lost by omission to take action in previous cases. P. 118.

3. The Desplaines River in Illinois, which was used from a very early day to about the year 1825 as a link in a well known route between Lake Michigan and the Mississippi in the transportation of furs and supplies by canoes and other light-draft boats, but has not since

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been used for transportation and is not thus useful under existing conditions, held a navigable water of the United States and within the act of Congress forbidding unauthorized obstructions. Act of March 3, 1899, c. 425, § 9, 30 Stat. 1151. Pp. 117, 123.

4. The public interest in navigable streams of this character in Illinois and neighboring states, and the federal authority over such as are capable of serving interstate commerce, arises not from custom or implication, but from the declaration of the 4th Article of the compact in the Ordinance of July 13, 1787, for the government of the Northwest Territory, that the navigable waters leading into the Mississippi and St.Lawrence, and the carrying places between the same, shall be common highways and forever free, etc. -- a principle which was reiterated in later acts of Congress and accepted by Illinois in her constitution at the time of her admission as a state. P. 118.

5. Insofar as the Ordinance of 1787 thus established public rights of highway in navigable waters capable of bearing commerce from state to state, it was no more subject to repeal by a state than any other regulation of interstate commerce enacted by Congress. P. 120.

6. The power of the states to regulate such navigable waters is plenary within their borders until Congress intervenes, but Congress has the power to assume entire control whenever it chooses, unhampered by previous acts of the states, and this supreme authority applies to states formed out of the Northwest Territory as well as to others, and may be exercised through general as well as special laws. P. 121.

7. A river may be navigable in law though it contain natural obstructions and though it be not open to navigation at all seasons or at all stages of water. P. 121.

8. A decision of a state supreme court holding a river not navigable in its natural condition does not bind the United States if it was not a party to the suit. P. 123.

9. A river having actual navigable capacity in its natural state and capable of carrying commerce among the states is within the power of Congress to preserve for purposes of future transportation, even though it be not at present used for such commerce and be incapable of such use according to present methods, either by reason of changed conditions or because of artificial obstructions. P. 123.

10. The provisions of 9 of the Act of March 3, 1899, supra, applicable in terms to "any navigable river or other navigable water of the United States," cannot be limited to such waters as were at the date of the act, or as now are, actually open to use. P. 123.

11. Where there was no application under the statute, but the party

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desiring to build a dam merely submitted its plans to the Secretary of War at an informal hearing and assured him that the stream was not navigable, held that his refusal to act, upon the ground that that condition left the stream without his jurisdiction, imported neither an approval of the project nor an inquiry concerning navigability. P. 124.

256 F. 792 affirmed.

The case is stated in the opinion.

PITNEY, J., lead opinion

MR. JUSTICE PITNEY delivered the opinion of the Court.

This was a suit brought by the United States against appellant in the District Court for the Northern District of Illinois, Eastern Division, for an injunction to restrain defendant from constructing a dam in the Desplaines River at a point in Grundy County, Illinois, without the consent of Congress or authority of the legislature of the state, and without approval of the location and plans by the Chief of Engineers and the Secretary of War of the United States. Relief was prayed upon two grounds: (1) that the riverbed where the dam was being constructed was the property of the United States; (2) that the Desplaines River was a navigable waterway of the United States, and the proposed construction of a dam therein was in violation of the Act of Congress of March 3, 1899, c. 425, § 9, 30 Stat. 1121, 1151. The first ground was overruled by the district court and disregarded by the circuit court of appeals. We need not consider it further. The second ground was sustained by the district court, and its final decree granting an injunction was

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affirmed by the circuit court of appeals. 256 F. 792. The present appeal followed.

Section 7 of Act of September 19, 1890, c. 907, 26 Stat. 426, 454, makes it unlawful to build any dam or other structure in any navigable river or other waters of the United States so as to obstruct or impair navigation without permission of the Secretary of War. Section 9 of the Act of March 3, 1899 (30 Stat. 1151), declares:

That it shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any . . . navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of War: Provided, that such structures may be built under authority of the legislature of a state across rivers and other waterways the navigable portions of which lie wholly within the limits of a single state, provided the location and plans thereof are submitted to and approved by the Chief of Engineers and by the Secretary of War before construction is commenced. . . .

There is no contention that the consent of Congress for the building of the proposed dam has been obtained, that its construction has been authorized by the Legislature of the State of Illinois, or that the location and plans have been submitted to and approved by the Chief of Engineers and the Secretary of War. The substantial defense is that the Desplaines River, at the site of the proposed dam, which is below the City of Joliet and just above the point where the Desplaines joins the Kankakee to form the Illinois River, is not navigable in fact, and not within the description "navigable river, or other navigable water of the United States," as employed in the Act of 1899.

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The district court found that there was no evidence of actual navigation within the memory of living men, and that there would be no present interference with navigation by the building of the proposed dam. The circuit court of appeals did not disturb this finding. 256 F. 792, 798. But both courts found that, in its natural state, the river was navigable in fact, and that it was actually used for the purposes of navigation and trading in the customary way, and with the kinds of craft ordinarily in use for that purpose on rivers of the United States, from early fur-trading days (about 1675) down to the end of the first quarter of the nineteenth century. Details are given in the opinion of the circuit court of appeals, and need not be repeated. Suffice it to say that there was a well known route by water, called the Chicago-Desplaines-Illinois route, running up the Chicago River from its mouth on Lake Michigan to a point on the west fork of the south branch; thence westerly by water or portage, according to the season, to Mud Lake, about two miles; thence to the Desplaines near Riverside, two miles; thence down the Desplaines to the confluence of that river with the Kankakee, where they form the Illinois River; thence down the Illinois to its junction with the Mississippi. During the period mentioned, the fur trade was a [41 S.Ct. 411] leading branch of commerce in the western territory, and it was regularly...

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