State of Wisconsin v. State of Illinois State of Missouri State of Michigan v. State of Illinois State of New York v. Same 12
| Decision Date | 14 January 1929 |
| Docket Number | 11,Nos. 7,s. 7 |
| Citation | 73 L.Ed. 426,49 S.Ct. 163,278 U.S. 367 |
| Parties | STATE OF WISCONSIN et al. v. STATE OF ILLINOIS et al. (STATE OF MISSOURI et al., Interveners). STATE OF MICHIGAN v. STATE OF ILLINOIS et al. STATE OF NEW YORK v. SAME. , and 12, Original |
| Court | U.S. Supreme Court |
[Syllabus and Statement of the Case from pages 367-371 intentionally omitted] Messrs. Albert Ottinger, of New York City, R. J. Le Boeuf, Jr., of Albany, N. Y., Albert J. Danaher, of Watervliet, N. Y., and Nathan L. Miller, of New York City, for the State of New York.
Messrs. Edw. J. Brundage, Wm. F. Mulvihill, Morton S. Cressy,
[Argument of Counsel from pages 371-376 intentionally omitted.]
Messrs. Wilber M. Brucker, Wm. W. Potter, and Arthur E. Kidder, all of Lansing, Mich., for the State of Michigan.
[Argument of Counsel from pages 376-380 intentionally omitted.]
[[WEST,S.Ct. 164!} Messrs. Wm. J. Morgan and Ralph M. Hoyt, both of Milwaukee, Wis., Herman L. Ekern, of Madison, Wis., C. L. Hilton, of St. Paul, Minn., E. C. Turner and C. C. Crabbe, both of Columbus, Ohio, Geo. W. Woodruff, of Philadelphia, Pa., Newton, D. Baker, of Cleveland, Ohio, John W. Reynolds, of Madison, Wis., R. T. Jackson, of Mineral Point, Wis., and G. A. Youngquist, of St. Paul, Minn., for State of Wisconsin and others.
[Argument of Counsel from pages 380-387 intentionally omitted]
Messrs. Edmond D. Adcock, Oscar E. Carlstrom, H. A. Brouillet, Jas. Hamilton Lewis, Geo. F. Barrett, and Louis J. Behan, all of Chicago, Ill., J. T. Kenworthy, and Cyrus E. Deitz, both of Rock Island, Ill., Hugh S. Johnson, of Springfield, Ill., Maclay Hoyne, of Chicago, Ill., and James M. Beck, of Washington, D. C., for the State of Illinois and another.
[Argument of Counsel from pages 387-397 intentionally omitted]
North T. Gentry, of Columbia, Mo., F. M. Thompson, of Nashville, Tenn., F. E. Daugherty, of Louisville, Ky., Percy Saint, of New Orleans, La., Daniel N. Kirby, of St. Louis, Mo., H. W. Applegate, of Little Rock, Ark., Rush H. Knox, of Jackson, Miss., and Cornelius Lynde, of Chicago, Ill., for the State of Missouri and others.
Messrs. A. B. Dougherty,
[Argument of Counsel from pages 397-399 intentionally omitted]
These are amended bills by the states of Wisconsin, Minnesota, Michigan, Ohio, Pennsylvania, and New York, praying for an injunction against the state of Illinois and the Sanitary District of Chicago from continuing to withdraw 8,500 cubic feet of water a second from Lake Michigan at Chicago.
The court referred the cause to Charles Evans Hughes as a special master, with authority to take the evidence, and to report the same to the court with his findings of fact, conclusions of law, and recommendations for a decree, all to be subject to approval or other disposal by the court. The master gave full hearings and filed and submitted his report November 23, 1927, to which the complainants duly lodged exceptions, which have been elaborately argued.
When these bills were filed, there was pending in this court an appeal by the Sanitary District of Chicago from a decree granted at the suit of the United States by the United States District Court for the Northern District of Illinois, against a diversion from the lake in excess of 250,000 cubic feet per minute, or 4,167 cubic feet per second. This amount had been permitted by the Secretary of War. In January, 1925, this court affirmed the
decree, without prejudice to the granting of a further permit by the Secretary of War according to law. 266 U. S. 405, 45 S. Ct. 176, 69 L. Ed. 352. On March 3, 1925, the Secretary of War after that decree enlarged the permit for a diversion not to exceed an annual average of 8,500 cubic feet per second, upon certain conditions hereafter to be noted.
The amended bills herein averred that the Chicago diversion had lowered the levels of Lakes Michigan, Huron, Erie, and Ontario, their connecting waterways, and of the St. Lawrence river above tidewater, not less than six inches, to the serious injury of the complainant states, their citizens, and property owners; that the acts of the defendants had never been authorized by Congress, but were violations of the rights of the complainant states and their people; that the withdrawals of the water from Lake Michigan were for the purpose of taking care of the sewage of Chicago, and were not justified by any control Congress had attempted to exercise or could exercise in interstate commerce over the waters of Lake Michigan; and that the withdrawals were in palpable violation of the Act of Congress of March 3, 1899 (30 Stat. 1121). The bills prayed that the defendants be enjoined from permanently diverting water from Lake Michigan or from dumping or draining sewage into its waterways which would render them unsanitary or obstruct the people of the complainant states in navigating them.
The state of Illinois filed a demurrer to the bills and the Sanitary District of Chicago an answer, which included a motion to dismiss. The states of Missouri, Kentucky, Tennessee, and Louisiana, by leave of court, became intervening codefendants, on the same side as Illinois, and moved to dismiss the bills. The demurrer of Illinois was overruled, and the motions to dismiss were denied, without prejudice. Thereupon the intervening defendants and the defendants the Sanitary District and the state of Illinois filed their respective answers. The states of
Mississippi and Arkansas were also permitted to intervene as defendants, and adopted the answers of the other interveners. The answers of the defendants denied the injuries alleged, and averred that authority was given for the diversion under the acts of the Legislature of Illinois and under acts of Congress and permits of the Secretary of War authorized by Congress in the regulation of interstate commerce. All the answers stressed the point that the diversion of water from Lake Michigan improved the navigation of the Mississippi river and was an aid to the commerce of the Mississippi Valley and sought the preservation of this aid. They also set up the defense of laches, acquiescence and estoppel, on the ground that the purposes of the canal and the diversion were known to the people and the officials of the complainant states, and that no protest or complaint had been made in their behalf prior to the filing of the original bills herein.
The master has made a comprehensive review of the evidence before him in regard to the history of the canal, the extent and effect of the diversion, the action of the state and federal governments, the plans for the disposal of the sewage and waste of Chicago and the other territory within the Sanitary District, as well as the character and feasibility of works proposed as a means of compensating for the lowering of lake levels. From this review we shall take what will assist us in the consideration of the issues deemed necessary to be considered on the exceptions to the report.
We shall first consider in brief the parts taken by Congress and the state of Illinois and their respective agencies in the construction of the Sanitary District Canal and the creation of the Lake Michigan diversion.
By the Act of March 30, 1822, c. 14; 3 Stat. 659, Congress authorized Illinois to survey and mark, through the public lands of the United States, the route of a canal connecting the Illinois river with Lake Michigan, and
granted certain lands in aid of the project. A further land grant was made in 1827. The canal was completed in 1848. The canal crossed the continental divide between the Chicago and Des Plaines rivers, on a summit level 8 feet above the lake, and then paralleled the Des Plaines river and the Upper Illinois river to La Salle, Ill., where it entered the latter stream. The summit of the canal was supplied with water by pumps located in a plant on the Chicago river. Originally, only enough water was pumped to answer the needs of navigation in the canal, but thereafter, in 1861, the Legislature provided for improvement in the canal by excavation and a larger flow of water from Lake Michigan.
Before 1865, the Chicago river, being a sluggish stream in its lower reaches, had become so offensive, because of receiving the sewage of the rapidly growing city, that for its immediate relief the municipal authorities and the canal commissioners agreed to pump water from the river in excess of the needs of navigation. By 1872 the summit level of the canal had been lowered, and it was hoped that this would result in a permanent flow of lake water through the south branch of the Chicago river, sufficient to keep it in good condition, but the plan failed, and the canal again became grossly polluted.
In 1881, the Illinois Legislature passed a resolution authorizing the installation of pumps at the northern terminus of the canal, with a capacity of not less than 1,000 cubic feet a second, to draw water from Lake Michigan through the Chicago river and the canal. Pumps were installed and pumping was begun in 1883. For a few years this afforded sufficient dilution in the canal because of the high stage of Lake Michigan, but in 1886 the lake level began to fall, and continued to fall until 1891, when it was two feet lower than when the pumps were installed. Their capacity was thus reduced to a little more than 600 cubic feet a second. The nuisance
along the canal continued to grow. The drainage and water supply commission of the state recommended, as the most economical method for meeting the requirement, a discharge into the Des Plaines river through a canal across the continental divide, providing a waterway of such dimensions as would furnish ample dilution. The commission pointed out that the proposed canal would, from its necessary dimensions and its regular discharge, produce a magnificent waterway between Chicago and the Mississippi...
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