The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-07-10

even at the present day, through other instru-
mentalities man boats propelled BY steam OF wind.
ana indepenaenty OF the oroinanee Of iIsI, s 1e-
Mississippi and 81. Lawrence TO be 'common
highways" the true test OF the navigabillty OF
stream does not depend on the mode by which
commerce Is or may be conducted nor the dincul-
ties attending navigation. II this were so the
public would be deprived OF Tho use or many Of
the large rivers OF the country, over which RATS
OF lumber OF great value are constantly taken to
marker IL would be narrow rule 10 hold that
In this country. unless a river was capable OF
being naVigated by steam or sail vessels, IL
could not be treated as a public highway:
Tho capabiitY OF by the puolic for purposes or
transportation ana commerce anords sue true cfl-
terion OF the navigability OF river, rather than
the extent and manner OF thar use. II IL be
capable ITS natural state OF being used for pur-
poses Of comneree, no matter In what mode the
commerce may be conducted, IL IL naYtgaDle In
fact and becomes in law public river and high
way. Vessels OF any kind that can noat upon the
water. whether propelled by animal power, by the
Wind or by the agency OF steam, are may be-
come, the mode Dy which vast commerce can be
concncted, and it would be mlschievous rule
that would exclude either In determining the nav
liability or a river. 1t Is not, however as Cnlef
Justice shaw said (21 Pick. 344l. 'every small
creek In which fishing skin or cunning canoe
can De made to noat az high water which Is
deemed navigabe, but, In order TO give it the
character OF a nsvigaoie stream, 1t must be gene,
rally and commonly useful to some purpose OF
trade aud agriculture"
the learned Judge Of she Court bslow rested his
decision against the nav1gability OF the Fox River
below the Depere Rapids chiefly on the ground
that there were before the river was improved
true and these distractions rendered the naviga-
ton din1cult, and prevented the adoption OF the
Bnt win these In the way Commerce was success
uilY carried on for IL is in proof that the products
Of ether states and countries were taken up the
river In its natural state from Green Bay to Win
nebago ana return cargoes OF lead and iurs OBJ
tanned; and the customary mode by which this
was done was Durham boats. As early as May, 1885,
q regular line OF these boats was advertised TO run
from Green Bay to the Wisconsin portage (Doty
VS. Strong, LIST Plnnsys Wisconsin Reports .. s1s.)
Ehara difIiCultfas in the Of rand nayl-
cation, even With Durham boats, ana these dlfh-
culties are recognized IN tne ordinance OF 17sl;
for not only were the navgable waters declared
free but also the carrying places between them
that is places wore boats must be partially or
hand 10 greater or less distance. Apart from
this, however, the rule laid down by the district
judee as test OF navigaDity cannot be adopted,
for IT, would exclude many OF the great rivers OF the
country which were so interrupted by rapids
to require artlleial means 10 enaoie tnem TO De
few Of cur fresh water rivers which did not orig
inaily present. serious Constructions TO an unin-
terrdpted navigation. In some cases, like the
Fox River they may be SO great while they last az
to prevent the use OF the best instrumentaltles
for carrying ON commerce, but the vitai ana es-
sen tla point Is ether the natural navigation OF
she river is such that it affords channel for use
In fact, although its navigation may be encom-
passed with dlfTiculties by reason OF natural bar
riers, such as rapids ana SAND bars;
From what has been said 1t follows that Fox
River is within the rule prescribed by thls Court
In order TO determine whether river IL navi-
been navigabie in fact, and not only capable OF
use but actually used as o highway Tor com.
rne rec IN the ONLY mode III which commerce could
be conducted before he navigation OF the river
was improved since this was done the valuable
trade prosecuted on the river by the agency OF
atsam mas become OF national Importance and
emptyipG as il does. into Green Bay it forms a
Continued highway for Interstate COM
merce. The products >of other States and
foreipn countries which arrived 1T Green
BaT for points In the interior were
formerly sent forward IN Durham boats, and since
m improvements
these products are reshipped small class OF
steamboats,. 1t would be strange, indeed, If this
differencs in the modes OF conducting commerce,
both OF WHICH at the time they were employed, /
were adapted TO the necessities or navigation,
should operate oaange upon the national char
acter OF tre stream.
Before the Union was iormed, and while the
French were IN possession or the territory, the |
Wisconsin and Fox rivers constituted about the