Page:Federal Reporter, 1st Series, Volume 1.djvu/162

 154 FBDBBAL REPOBTEB. �of said river to suit their convenience, from five to eight days at a time. �And the plaintiff prays that the defendants be perpetually enjoined from the running of loose logs in the river, and that the court w U adjudge such piers, booms and dams to be a nuisance, and that the same be abated, and that the defend- ants be required to remove the same and restore the said river and slough to their original condition. �The demurrer raises the question whether, upon the facts alleged, the court can make a decree granting the relief prayed for. �We think it cannot. �1. The bill of complaint seems to be framed upon the theory that the Chippewa river being navigable for steam- boats as well as for the purpose of floating saw logs to market, there is something peculiar and sacred under the constitution and laws of the United States and the state of Wisconsin, about steamboat navigation, that should give it the preference over and entitle it to the protection of the law against this other form of commercial enterprise. And no doubt if congress, by virtue of the commerce clause in the constitution, should at any time assume legislative jurisdic- tion and control of the navigation of the Chippewa river, as it may at any time do, that body could subordinate the log- ging interest to that of steamboat navigation, or might pro- hibit the use of the stream for such purpose altogether. Un- der the authority to regulate commerce its power is superme, whenover it shall see fit to exercise it. But until congress assumes to control the commerce of the river, I take it to be clear law that, as to those streams that lie wholly within the territory of a state, though approachable by other streams from other states, as in this case from the Mississippi river, that the state within whose boundaries such river lies may leg- islate in reference to its commercial use as a public highway ; and such has been the uniform practioe throughout the eoun- try. This doctrine was first settled by the supreme court in the case of Wilson v. The Blàckbird Creek Marsh Co. 2 Pet. 245-250. ��� �