PIGEON RIVER I., S. & B. CO. v. Charles W. Cox, Limited

• Citation: 63 F.2d 567
• Decision Date: 16 February 1933
• Docket Number: No. 9547.,9547.
• Parties: PIGEON RIVER IMPROVEMENT, SLIDE & BOOM CO. v. CHARLES W. COX, Limited.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

63 F.2d 567 (1933)

PIGEON RIVER IMPROVEMENT, SLIDE & BOOM CO. v. CHARLES W. COX, Limited.

No. 9547.

Circuit Court of Appeals, Eighth Circuit.

February 16, 1933.

John D. Jenswold, of Duluth, Minn. (Jenswold, Jenswold & Dahle, of Duluth, Minn., on the brief), for appellant.

Edward L. Boyle, of Duluth, Minn. (Fryberger, Fulton & Boyle, of Duluth, Minn., on the brief), for appellee.

Before KENYON, GARDNER, and SANBORN, Circuit Judges.

KENYON, Circuit Judge.

Appellant is a corporation organized under and authorized by the laws of Minnesota as a slide and boom company to construct dams and sluiceways and other improvements along the channel on the Minnesota side of the Pigeon river. The Pigeon river is, by the terms of the Webster-Ashburton Treaty of 1842 (8 Stat. 572), made part of the international boundary line between the United States and Canada. It is a small stream between the northeast corner of Minnesota and the province of Ontario, and flows a distance of about thirty miles into Pigeon Bay on Lake Superior. Appellee is a Canadian timber dealer, and floats timber cut from Canadian lands down the Arrow river in Canada into the Pigeon river en route to Lake Superior. In 1928, 1929, and 1930 appellee drove quantities of pulpwood and railway ties down the Pigeon river, and in so doing made use of appellant's improvements, refusing to pay tolls thereon. Appellant brought this action in the state court for their collection. It was removed to the United States District Court. An amended complaint was filed. Appellee demurred on the ground that the facts stated were not sufficient to constitute a cause of action. The court sustained the demurrer without leave to amend and entered judgment of dismissal. This appeal followed.

The case involves the construction of that part of article 2 of the Webster-Ashburton Treaty of August 9, 1842, 8 U. S. Stat. 572, 573, which reads as follows: "That all the water communications and all the usual portages along the line from Lake Superior to the Lake of the Woods, and also Grand portage, from the shore of Lake Superior to the Pigeon river, as now actually used, shall be free and open to the use of the citizens and subjects of both countries."

All of appellant's improvements and works with the exception of a certain flooding dam lie in the portion of the river between Fort Charlotte and its mouth.

It is appellant's contention (1) that the Pigeon river from its mouth to Fort Charlotte is not "a water communication" within the meaning of this provision of the treaty, and that it was not "actually used" as such at the time of the treaty or at any time before that, and that therefore the provisions of the treaty do not apply to that part of the river where appellant's improvements are located; (2) that the words, "free and open," as used in the treaty, do not imply freedom from tolls or charges for the use of improvements in aid of the flotation of logs.

Appellee's claims are: That the Pigeon river from shore to shore was made a boundary water by the Webster-Ashburton Treaty; that it is one of the water communications between Lake Superior and Lake of the Woods referred to in said treaty; that the movement of Canadian wood on the Pigeon river is foreign commerce, over which the state of Minnesota has no control, and that said state has no authority to grant the right to appellant to collect tolls on the Pigeon river; that such collection is in violation of the Webster-Ashburton Treaty.

This case is a companion one to Clark v. Pigeon River Improvement Slide & Boom...