The Montello (87 U.S. 430)

APPEAL from the Circuit Court for the Eastern District of Wisconsin.

In the southern part of the State of Wisconsin, about a mile and a half east of Portage City, and at a point about equidistant from the eastern and western boundaries of the State, rises the Fox River. The stream flows in a northeasterly direction, through Lake Winnebago into Green Bay, thence into Lake Michigan, so connecting through that lake and lakes Huron, Erie, and Ontario with the river St. Lawrence, and other great waters having their hydrographic basin on the Atlantic coast, and discharging themselves into the Atlantic Ocean.

In a bend before Portage City sweeps the Wisconsin River, which, rising in the regions far northwest of the place just named, before arriving at Portage City runs eastwardly, and then turning to the west and flowing a certain distance falls into the Mississippi River. In this way a natural watercourse has been always open from the head-waters of the Mississippi through the Wisconsin River to the spot now known as Portage City.

Of course when a 'portage,' or carriage by land, was made of merchandise from the Wisconsin River at Portage City to the sources of Fox River, less than two miles east, the merchandise coming from the head-waters of the Mississippi was on waters whose course was towards the Atlantic Ocean.

In its natural state, there were, however, in parts of the Fox River rapids and falls. At Grand Chute there was a rock making a fall two feet perpendicular; and below certain rapids known as the De Pere, the navigation was especially difficult. There were many other similar though less difficult places. All these embarrassed the navigation of early days, but they did not destroy nor even much arrest it. The stream was always used for purposes of trade; including especially the great fur trade, a trade carried on before our Revolution, and when French and British were pursuing their adventurous commerce far into the savage regions of the Northwest. Smith, the historian of Wisconsin, states that even so far back as 1718, one of 'the great avenues from the St. Lawrence to the Mississippi was by way of Fox and Wisconsin Rivers.' In 1763, Marquette and Joliet, French explorers of the source of the Mississippi, followed the line of the two streams mentioned. The stream was then navigated by long, narrow boats, called Durham boats-vessels from seventy to one hundred feet long and twelve broad, drawing, when loaded, from two to two and a half feet of water-which men would push with poles or propel by oars, or have dragged by horses and mules; sometimes, in very shallow water, wading alongside and pushing the boats onward themselves. At places where progress on the stream was impracticable the vessel would be unloaded and a 'portage' made, till the navigator had got beyond the difficult place, and then a reshipment would be made of the merchandise into some other boat beyond, or into the same boat, which unloaded, and drawing less water than before, could be got across the place that in a loaded state had stopped it. Arriving at the very source of the Fox River, a 'portage' of less than two miles would be made, and the merchandise was on the Wisconsin, and thence it floated to the Mississippi. In May, 1838, a regular line of Durham boats was advertised to run from Green Bay, near Lake Michigan, to the portage at the head of the Fox River.

By the Ordinance of 1787, for the government of the Northwest Territory, it was enacted that—

'The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free as well to the inhabitants of the said Territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor.'

This clause was substantially enacted in the constitution of Wisconsin, which provides that—

'The river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the State as to the citizens of the United States, without any tax, impost, or duty therefor.'

By the act of Congress of 1846, passed on the admission of Wisconsin as a State into the Union, a quantity of land was granted to the State—

'For the purpose of improving the navigation of the Fox and Wisconsin Rivers, in the Territory of Wisconsin, and of constructing the canal to unite the said rivers at or near the portage.'

And it was provided that the—

'Said rivers, when improved, and the said canal, when finished, shall be and forever remain a public highway for the use of the government of the United States, free from any toll or other charge whatever, for the transportation of the mails, or for any property of the United States, or persons in their service passing upon or along the same.'

The State of Wisconsin accepted the grant, and, pursuant to the authority and power vested in the State, a company was incorporated by an act approved July 6th, 1853, for the improvement of the Fox and Wisconsin Rivers. That act vested in the corporation all the rights and privileges granted to the State by the act of Congress. And the improvement company in carrying out the object of its creation, built dams, locks, and canals in Fox River, from Portage City to below De Pere Rapids. The works of this company were on a grand scale, and by them Fox River was changed from its natural condition to an improved thoroughfare, for the use of which all boats were required to pay toll. It became the property of and was exclusively managed by a corporate body, with power to demand and receive tolls from all crafts passing through the locks, not excepting boats enrolled and licensed for coasting trade.

In consequence of the acts of Congress, and of the State, and of the increase of trade from the Northwest, over the Wisconsin River, across the portage, and upon the Fox River and the lakes, the Fox River was cleared of the obstructions caused by its rapids, or falls, and the difficult or impracticable passes were removed by locks, canals, dams, and other artificial navigation, so that there was now, and had been for several years, uninterrupted water communication for steam vessels of considerable capacity from the Mississippi to Lake Michigan, and thence to the St. Lawrence, through the Wisconsin and Fox Rivers; and steamboats had passed, and were constantly passing, over these rivers with passengers and freight destined to points and places outside of the State of Wisconsin.

In this state of things the government libelled the steamer Montello in admiralty, for non-compliance with certain acts of Congress making enrolment and license, and certain provisions as to steam valves necessary for all vessels of the tonnage of which the Montello was, navigating the navigable waters of the United States. The owners of the steamer denied that the Fox River was 'navigable water' of the United States, within the act of Congress; and whether it was so was the question in the case.

The case had been here before, but the libel was defective and the evidence insufficient to determine the question, and it was remanded for further proceedings, to enable the parties by new allegations and evidence to present the exact character of Fox River as a navigable stream. This was now done, and there was, therefore, nothing now in the way of a correct solution of the inquiry.

The court below-resting its decision on the ground that before the navigation of the river was artificially improved there had been numerous obstructions to a continuous navigation, especially below the De Pere Rapids-decided that the river was not a part of the public navigable waters of the United States, within the doctrine laid down in The Daniel Ball, and The Montello, and dismissed the libel. The United States appealed, and now assigned as error—

1. That by the Ordinance of 1787 and subsequent acts of Congress, as well as by the constitution of Wisconsin, the Fox River was declared and made part of the public navigable waters of the United States, and consequently fell within the doctrine in respect of that class of waters laid down by this court; and

2. That the Fox River was a part of the navigable waters of the United States, notwithstanding the fact that its navigation was defective by reason of the falls and rapids, which had been remedied of late times by artificial navigation.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, for the plaintiff in error:

1. Whether a stream constitutes part of the navigable waters of the United States, does not depend upon the question whether artificial improvements are required in order to render it navigable. Some of the greatest rivers on the continent, like the St. Lawrence and the Ottawa, are so interrupted by rapids as to require artificial means to enable them to be navigated continuously, and the great lakes themselves, by the employment of artificial means only, form an uninterrupted line of navigation with the ocean. Where the natural navigation is the principal one, and the artificial merely dependent and ancillary thereto, and the natural stream is in fact navigable within the ordinary acceptation of the word, then the river forms a part of the navigable waters of the United States, if, by means of the artificial navigation, it is practically made so, and interstate commerce is actually carried on. All the State courts, and they are numerous, which have had occasion to discuss the question of what is a navigable stream have given a very broad and liberal construction to these words. In Wisconsin this very river is treated as a navigable river.

2. If this were not so, the Ordinance of 1787 and the subsequent act of Congress, and the constitution of Wisconsin, make the Fox River 'navigable water of the United States.'

Mr. J. H. Hauser, contra:

1. What is meant by 'navigable waters of the United States?'

The first definition of them given by this court was given in The Daniel Ball, where the court says:

'Those rivers must be regarded as public navigable rivers in law which are navigable in fact when they are used, or are susceptible of being used, in their ORDINARY CONDITION, as highways for commerce over which trade and travel are or may be conducted in the customary modes of travel on water.'

And in the present case, on the former appeal, speaking of the Fox River, it says:

'It can only be deemed a navigable water of the United States when it forms by itself, or by its connections with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries, in the customary modes in which such commerce is conducted by water.'

The State courts have discussed the question of navigable waters only as a fact in their own State, and not as relating to commerce with other States or foreign countries. Their decisions do not apply.

2. Is the Fox River a navigable water of the United States?

The Fox was, in parts, not a navigable stream prior to 1846. It had numerous rapids and abrupt falls. At Grand Chute there was a solid rock, making a fall of two and a half feet perpendicular. No commerce could be carried up the river in the ordinary and customary manner, and under no circumstances could it be pretended to be a public navigable stream prior to the act of Congress of August 6th, 1846. Exclusive control was granted by that act to the State of Wisconsin, only reserving that it should be a public highway for the use of the United States. The State of Wisconsin, by an act of its legislature, approved July 6th, 1853, ceded all the rights and privileges which the State had obtained from the United States, to this company.

From 1840 to 1853 the control of the Fox River belonged to the State of Wisconsin, and since that it has belonged to the Fox and Wisconsin Rivers Improvement Company, and was not a public navigable water of the United States. And after this grant passed into the hands of the improvement company it became a canal or slack-water navigation, and comes within the case of Veazie v. Moor, which decides that the Penobscot River is not a public navigable river of the United States, for the reason that it has no navigable connection with the seas, unless made so by artificial or private means.

If the Fox River is a navigable stream of the United States, it would be impossible to conceive of any body of water that is not or might not become such navigable water.

3. Did Congress by the Ordinance of 1787 intend to include Fox River?

Certainly not on the ground of its being navigable; for prior to the building of the canal and slack-water navigation the case shows that only Durham boats could at certain stages of the water pass up and down the river, and then only by unloading at certain places and lifting the boats over the rapids. This court says in The Daniel Ball, that the water must be navigable in its 'ordinary condition,' and in this case on the former appeal, 'It must be water over which commerce can be carried on in the customary modes in which such commerce is conducted by water.'In its ordinary condition it was impossible to get steamboats up or down the river. Even Durham boats could pass up or down only by being unloaded and lifted over the falls. This was not the customary modes by which commerce is conducted by water. The true definition of 'navigable water' of the United States must be water which, in its ordinary condition, by itself or by its connections with other waters, forms with them a continual highway over which commerce is or may be carried on with other States or foreign countries in vessels which Congress has deemed of suitable size to be recognized in its commercial and revenue laws.

The literal construction of the Ordinance of 1787 would include all the navigable waters in the State, for all the lakes and rivers of the State empty either in the Mississippi or St. Lawrence. The Indians in their commerce carried their boats from lake to lake.

4. Does the subsequent legislation of Congress show that the waters of the Fox River were included in the Ordinance of 1787?

If the Ordinance of 1787 applied to Fox River, then all subsequent legislation of Congress and of the State of Wisconsin in regard to said river is in violation of said ordinance.

Again, 'common highway,' as used in the Ordinance of 1787, is used in a broader sense than admiralty jurisdiction, for while it includes navigable waters it also includes carrying-places between the same, and admiralty jurisdiction has not yet extended to land as well as navigable water.

While the United States did grant land to aid in improvement of the river, yet the improvement was largely made by private energy and sacrifice, and the government reserved no rights except as above stated.

If private enterprise makes waters navigable which were not before navigable, and capable of carrying vessels which are of sufficient capacity to come within the jurisdiction of the Federal courts, which before were not navigable by any of the ordinary modes of commerce, will the United States then come in and take jurisdiction and control, especially where this improvement is wholly within a State, and subject to State law and State taxation? Such a policy would not be for the best interest of the General and State governments, and would be such a centralization of power in the Federal government, and such an encroachment on the powers reserved to the States by the Constitution, that this court will be slow to make such a radical change and to extend the jurisdiction of the Federal courts, that by the same reasoning the General government would take control of every trade, manufacture, and enterprise throughout the country.

Mr. Justice DAVIS delivered the opinion of the court.