Washington standard. [volume] (Olympia, Wash. Territory) 1860-1921, 1864-06-25

The following decision Of Judge Wyche
will 10 read with interest as affecting the
validity of other charters which have been
rushed throug ourLegislaturc.
Monticello and Cowlitz Landing Steamboat
Co.. rs. the Oregon Steam Navigation Co.
Williams and Evans for the plfs.-Strong
for defts.
Application for Injunction at Chambers,
Vancouver, June LIST, 1854
On the 2lst of January, 1868, the Legis.
lature of Washington Territory incorporated
the " Monticello and Cowlitz Landing Steam
boat Co." for tho transportation Of freight
and passengers between Monticello and Cow
litz Landing, these points being on tho Cow
litz river. and within the territorial limits Of
Washington Territory, and On condition that
tho Company would place a boat on said
route and do other acts required within the
time fixed in the charter. then they should
have the exclusive right Of navigation within
these termini for the period of six years. On
the 25th ofJanuary, 1864. this act of incor-
p~ora,ion was amended. Within the TENS re-
quired the Company placed a boat on said
route and were navigating the same under
their charter, when on or about the 2Sth day
of April, 1864. the defendents commenced
to navigate said Cowlitz river by running the
steamboat Express from the city of Portland,
in the State of Oregon. TO different points on
the Cowlitz river, within the limits covered
by the exclusive grant of plaintiffs. The
plaintiffs thcrcupon file their bill against de-
PENDANTS and pray for an injunction restrain
ing defendants from navigating the Cowlitz
raver until tho matters aud things in issue
may be heard and determined.
Several interesting questions are more or
less connected with this case, but from the
presentation mrde in this application it is
considered necessary to determine only two
Of them, viz:
let. Whether the Cowlitz river is a navi-
gable stream.
I'd. Whether the defendants have a right
under the Constitution and laws of the United
States to run a steamboat from the city of
Portland, in the State Of Oregon to the points
on tho Cowlitz river designated in plaintiffs
charter, any laws Of Washington Territorial
Legislature to tho contrary notwithstanding.
The test applied in England the ebb and
flow of the tide, to determine the character
Of a river however applicable to n country
where only those streams affected by the
tide were capable Of receiving vessels and
where tide water and navigable water were
convertible terms, is entirely inapplicable in
a country like ours. Astounding in vast tideless
laks. APPLY styled INLAND seas" and trav-
srsed thousands of miles by imperial rivers
on whose bosom richly freighted with human
ity and the products Of mans labour and skill
move the largest vessels. It 10 believed to
BE- tho law that all streams Of sufficient Ca
pacity to admit of navigation by vessels,
boats and other water crafts used in the trans.
portation of passengers or freight arc naviga-
bic rivers and as such under the servitude of
the public interests to be used as "public
highways" Carson . Blair, 2 Binn. PENN
II ATS; Bowman's, Deirsecs . Wathen. 2
McLane (Cir. Coz r. 376; Cotes q Wad-
dington, l McCord Is. C.) R. $50; Wilson
. Forbes. 2 Dew. IN. co. r. so; Elder .
Bur,is, 6 Humph (Tenn) II. 366; American
River Water Go. . Amsden ct ais, 6 (Cal.l
4A3; The Propeller Genessee Chief ct al .
Fitxhugh ct al IL Howard II. 443. Deter
mined by this criterion and from the showing
made, / consider The Cowlitz river q naviga-
bic stream, and as such to be used as a A" pub.
lie highway"
In examining the second question, the de-
fendents admit as charged that they are en-
gagged in running tie Express from the city
Of Portland. Oregon. to points on the Cowlitz
river. within the limits of the Legislative
grant of plaintiffs and allege that they have a
right to do 80 under Sec. 8 of the Constitution
of the United States giving Congress power
ITO regulate commerce with foreign nations
and among the several States and with the
Indian tribes" and under the several Acts Of