Watertown republican. [volume] (Watertown, Wis.) 1860-1906, 1877-10-31

Opinion OF Jud 90 DrummOnd in the
Great Chippewa River Navigation
Inter Ocean.

Judge DrummOnd prepared yeSter-
day his decision in the. important case
of the United States VS.. the Beef
Slough Manufacturing, Booming, Log
Driving and Transportation Company,
and others. This is a suit pending in
the circuit court Of the United States
for the western district of Wisconsin,
and was heard few days since by
Judge DrummOnd in Chicago.
THE OPINION Is AS FOLLOWS:
This was bill filed in consequence
Of distractions alleged to have been
placed in the Chippewa river, in the
state of Wisconsin, and particularly in
Beef Slough-a navigable branch of the
river which leaves the main river about
Is miles from the Mississippi, and flows
into the latter river about 8 miles be-
low the mouth of the Chippewa. The bill
alleges that the defendants have placed
piers, booms, and other distractions
so as to substantially close the naviga-
ton of Beef Slough, and that they have
imposed and collected tolls from the
owners of lumber and logs floating on
the river, and that they have occasion
ally so filled the channel of the Chippe-
wa with logs as to seriously impair it's
navigation. The object Of the bill is to
prevent any further distractions to the
navigation of the river, and to remove
those already placed there. A demur-
rer has been interposed to the bill, and
the question is whether the demurrer is
well taken. think it is. If it be con-
coded that the river Chippewa is a nav
igable river-free to the citizens of the
United States without tax or impost,
either by virtue of the acts of congress
or of the provision of the constitution of
Wisconsin, can the United States in con-
sequence of the existence of one or both
of these facts, file bill in this court to
enforce this general right on the part of
the citizens of the United States without
an act of congress authorizing it to be
done?
The authorities seem to establish the
principle that there m asst be special
legislation to that effect before such a
bill can be filed. Congress undoubted-
ly has the right under the authority
conferred on it by the constitution to
declare that all the rivers flowing into
the Mississippi, and in fact navigable,
shall be so in law-and to prescribe
rules and regulations as to their navig-
ability, irrespective of the authority of
the states within whose limits such rivers
may be found And if it appeared by
the bill that congress had in relation to
the Chippewa river prescribed any such
rule or regulation, Notwithstanding the
acts of the defendants might have been
authorized by the state of Wisconsin, it
would then be binding on this court,
and if this case were brought within the
principle of the United States against
Duluth, l Dillon, 1863 1t would per-
haps be sufficicnt-but the allegations
contained in this bill do not bring it
within the rule there laid down. In
that case it was alleged that congress
had made appropriations for the i'm
provement Of the mouth of the St.
Louis river SO as to keep open
a channel between Lake Superior and
Superior Bay; that the agents and
officers of the government had been &C
tually employed.in making the improve
ment for some years, and that the de-
PENDANTS were engaged in cutting a
canal near Duluth, the result of
which would be to render the efforts of
the United States to protect and deepen
the natural channel at the mouth of the
st. Louis river Intellectual Mr. Justice
Miller held in that case that the facts
warranted the United States in filing a
bill to protect and render effectual the
the improvement being made under its
authority There it was distinctly al
legged that the act being done by de-
PENDANT interfered with the proposed
improvement Of the United States Now
in this case, the allegations of the bill do
not reach that point. For we must adj
NIT, in the absence Of special legislation
on the subject by congress, by appro-
prlatlons for Improvements or other
wise, that the states have the right to
some extent to impair the navigation of
rivers actually navigable, and declared
SO by law, as by the construction Of
bridges and various other improveme nts
required for the accommodation of the
public.
It is alleged that congress has estab-
lished a post road upon and over the
river, and has appropriated and expend-
ed moneys in the surveys and improve
ment of the navigation, but there is no
specific statement as to the character Of
the improvements, when they have
been, or are proposed to be made, and
whether Or not the distinctions which
have been placed in the river or It's
branches, by the defendants, would
necessarily interfere with the improve
ments and the navigation proposed by
congress. In this respect think the
allegations of the bill are insufficient. !.
The bill also alleges that there are GER
tain ferries across the river, and that
upon these ferries are transported the
mails of the United States, but there is
no specific allegation in what particular
the distractions placed Or caused by the
defendants have interfered with the
transportation Of the mail.
l think that all the allegations in the
bill, as to the manner in which the acts
done by the defendants interfere with
the acts authorized to be done by the
legislation of congress, wanting in pre-
cision, and fullness and exphcitness of
detail, SO that on this ground, without
touching on naHy other questions that
were ably urged in the case, hold that
the demurrer must he sustained with