Page:Federal Reporter, 1st Series, Volume 1.djvu/173

 HEEBKAN V. BEEP SLOUGH MANUF'g CO. 165 �of such a dam as is complained of. I think it does. But, il there were any doubt on that point, the question should noi be determined in a proceeding of this kind, as already shown, but the party should be first required to establish his right in a court of law. It is claimed that the statute was not intended to apply to the Chippewa river because the Chippewa rivei is a navigable stream, and that it is unconstitutional and unlawful to build dams or to float logs upon a navigable stream. But we think there is no room for such a distinc- tion. The statute is framed in the most general terms, and was evidently intended to apply to ail the lumbering streams of the state, whether navigable in any degree for boats or not ; and such bas been the general understanding and construction of the statute. �The complaint does not allege that the dam itsolf is an obstruction to navigation so as to bring the case within the proviso of this act, but only that the use of it in holding back the water of the river too long impedes and obstructs navi- gation in the river below Eau Claire, where, and where only, the river is navigable by boats. It is not claimed that the river is navigable for boats at Little Falls, where the dam is built, or between there and Eau Claire, on the river, some 60 or 75 miles below. �The practice of building these fiooding dams on ail the rivers and smaller streams in the lumbering portions of the state has become of late universal, and their beneficiai use to the logging interest is immense. It is expressly authorized by statute, and would seem to be almost a public necessity, it being the only way in which mucb of the pine timber can be utilized or made available. That the use of these dams should in some instances injuriously affect navigation by boats coiild hardly be avoided, and must bave been foreseen by the legislature. But it is peculiarly the province of legis- lation to determine whether or not their couvenience and benefit to the logging interest and to general commerce would more than counter-balance the bindrance to steamijoat navi- gation which their use would necessitate. �It is a proper subject of municipal regulation; and, where ��� �