APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT
White, McKenna, Holmes, Day, Van Devanter, Pitney, Brandeis, Clarke; McReynolds took no part in the consideration or decision of this case.
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 river bed 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
affirmed by the Circuit Court of Appeals, 256 Fed. Rep. 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.
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 Fed. Rep. 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 2 miles; thence to the Desplaines near Riverside, 2 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 leading branch of commerce in the western territory, and it was regularly conducted upon the Desplaines River. Supplies in large quantity and variety, needed by the early settlers, also were transported over this route between Chicago and St. Louis and other points. Canoes and other boats of various kinds were employed, having light draft but capable of carrying several tons each, and manned by crews of six or eight men. The route was navigated by the American Fur Company regularly during a period of years down to about 1825, after which is was disused because the trade had receded to interior portions of Illinois that could be reached
more conveniently with horses. Later, changes occurred in the river, due to the drainage of a swamp in the region of the portage, the clearing away of forests affecting the rainfall and the distribution of the run-off, and thus shortening the duration of the higher stages of water; the construction (under state authority) of the Illinois and Michigan Canal in 1848 and its deepening in 1866 to 1871, which diverted a part of the hill drainage towards the Chicago River; and the construction of the Sanitary and Ship Canal in 1892 to 1894.
But, in spite of these changes, the Circuit Court of Appeals finds (256 Fed. Rep. 804) that the Desplaines River is a continuous stretch of water from Riverside (at the Chicago divide) to its mouth; and although there is a rapid, and in places shallow water, with boulders and obstructions; yet these things do not affect its navigable capacity; that the same is true of the upper part of the Illinois River ...