The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-07-10
UNITED STATES SUPREME COURT.
WHAT CONSTITUTES PUBLIC WATERS OF THE
UNITED sTATEs-THE NAvIGABMrTY OF A
STREAM THE TEST.


STREAM THE TEST.
WASHINGTON, July 9, 1875.
No 80 The United states Of America, appellant,
VS.. TIE steamer Monticello, Sc.-Appeal from tHe
Circuit Court for the Eastern district Of Wiscon-
sin.-Mr. Justice Davis delivered the opinion OF
the Court The question for decision in this case
Is whether the Fox River in Wisconsin is navl-
gable water Of the United states. This Court held
In the case OF the Daniel Bali 40 Walece) that
those rivers must be regarded as public navlgabe
rivers in law which are navigable In fact; and
they are navlgabe in fact wnen they are used or
are susceptible OF being used in their ordinary
coalition as highways fog commerce, over
which trade and travel are or may be con-
Quoted in the customary modes OF trade and
travel on water. And river is navigable water
OF tie United states when 1t forms by itself or by
It's connection with other waters, q contin ued
highway over when commerce u.s. or may De, car
riea on with other states or foreign countries In
the customary modes in which such commerce Is
conducted by water. ql Wellace-the Monteliol
Apply these tests TO the case in hand, and we
rink the question must be answered IN the
adlrmatIye. The FOX River has It's source near
PORTAGE City, Wis, and flows IN northeasteTly
direction through Lake WlnnebaRo INTO Green
Bay, and thence i1to Lake Michigan, and, by
mssns Of snort SGGne etas al PorIa ls 6 sq9
with the Wisconsin River which emptlos
into the Mississippi. From IT'S source 10 Oshkosh
the river IL frequently spoken OF as the upper
Fox" From Lake WlRneoaso to Green Bay 1t Is
called the Lower Fox" There are several
caused by Them have been removed by artificial
navigation, so that there Is now ana has been Tor
several years, uninterrupted wafer communica-
ton Tor steam vessels Of considerable capacity
from toe Mississippi 20 Lake Michigan and thence
to the ST. Lawrence through the Wisconsin ana
constantly passing over these rivers with p4s-
sengers and freight destined TO points and
places outside OF the state OF Wisconsin.
IL Is said DO viewer, that although the Fox River
mar now be considered highway for commerce,
over which trade and travel are, or may be, con-
/ dueted the ordinary modes or trade ana travel
on water, IL was not so in its natural state, and
1 therefore is not a nayigaDle water OF the United
I states within the purview VI the decisions re-
ferred 70. IL is true, without the Improvements
/ BY locks, canals and dams, Fox River, through its
! entire length, could not be Ravigated by steam
boats or sail vessels; but II equally true that 1t
/ formed. in connection with the Wisconsin, one Of
the earliest and most important channels Of COM
municauon between the Upper Mississippi and the
! lakes. II was this route which Marquetts and
the Mississippi, and the immense fur trade
| OF the Northwest was carried over 1t for
the Great West 81 and seq; Bancrofps History
Z OF the United states, 1856, 1919 Smith, In his
History OF Wisconsin VOL l. pave Si1 says s As
/ 81. Lawrence to the mississippi Were one BY the
way OF the Fox and Wisconsin rivers one By tue
| way OF Chicago and one by the way Of the Miami
| OF The lakes when, after crossing the portage Of
/ three leagues over the summit level, shallow
stream led into the Wabash ana One,n 1t Is
/ therefore apparent that II was one OF the high
/ WAYS referred 10 In the ordinance oil 1857, aud,
! indeed among the most favored, on account or
~ .hoSt nnrtaUe oetw.en the two rivers In
/ mora modem times and since the settlement OF
tue country and before the improvements result
\ ing Ia an unbroKen navigation were undertaken,
a large Interstate commerce has been success.
| fully carried on through this channel. This was
done by means OF Durham boats, which were
vessels lrem 10 10 100 feet In length, vito IL
feet beam, and drew, when loaded, TWO TO Two
and one half feet OF water. These noats, propelled
. by animal power, were able 10 navigate the entire
I length OF Fox River. with the aid OF few port
| ages, and would readily carry very considerable
tonnage.
In process OF time as Wisconsin advanced IN
| wealth ana population and had a variety or pro-
| ducts TO exchange for the commodities OF sister
states anc foreign nations Durham boats were
found TO be inadequate 70 the wants OF the
country, and Congress was appealed 70 Tor AID 70
improve the navigation OF the river, so that steam
power could be used. This ala was granted, and
/ since the river was improved commerce is car
risd over IL 10 one Of the usual ways IN which
/ commerce " conducted on the water at the pres
| ant kut comma On Tho atar-