The Superior times. [volume] (Superior, Wis.) 1870-1912, 1878-03-16

made about two hundred and fifty
feet wide and from fifteen to eighteen
feet deep; while the greatest depth
at the mouths Of the St. Louis river
was ten and twelve feet.
The citizens Of Superior City be-
gan to resist the action of The peo-
pie of Duluth and the railroad com
panY as soon as they comprehended
the magnitude of the project. The
contest has from that time to the
present been urged upon the State
Legislatures, before Congress, be-
fore the War department, having
charge OF appropriations to be spent
IN the Improvement OF navigation at
those points, and III courts, where
there have been several suits before
the one we are now about to de-
eide.
The present suit was brought by
the state of Wisconsin on the
ground that the channel of the ST..
Louis river as it flowed in state of
nature, was the common boundary
betwe ween that State and the State 0 f
Minnesota, and that she has an in
terest in the continuance OF the
channel as an important high way
of navigation and commerce in its
natural aud usual course. That the
canal cut by Duluth across Mime
sofa point, deeper than the natural
outlet OF the ST. Louis river at its
mouth, has diverted and will con
tinue to divert the current of tt at
river through Superior bay into the
lake by the way Of that canal. That
the result of this Is that while the
current cuts that canal deeper aud
gives an outlet for the water there
at a lower level, 1t at the same time,
by dlyertlng this current from the
old outlet, causes il to fiji up ari
thus destroys the usefulness Of the
river and bay as an aid Of com
merce on which the State has a
right to rely. The bill after reciting
the facts which We have already
detailed, insists that the City Of Du
Iuth cannot, by any right of her
own, nor by any authority conferred
on her by the State Of Minnesota,
thus divert the waters of the stream
the st. Louis rIver-frOm their
natural course 10 the prejudice OF
the lights of the State OF Wisconsin,
or Of her citizens 1t declares that
this canal at Duluth does this in
violation of law, and it prays of this
court to enjoln Duluth from protect
ing and maintaining il, and by way
of mandatory injunction to compel
that city to fill up that canal ard re-
store things in that regard to the
condition Of nature to which they
were before the canal was made.
The answer, while admitting the
construction OF the canal, denies al.
most every other material allegation
Of the bin. 1t denies especiall,
that the canal has tie effect OF
changing the course Of the current
Of the river or does any injury tc
the southern entrance Of Superior
bay or dininishes the flow OF W wateI
at that point.
A large amount of testimony, pro,
tessional and non-professional. is
presented on that subject. Tie an
swer also sets up as an affirmative
defense to the relief sought by the
DILL that the United States, by the
Legislative and executive depart
ments OF the government, have ap-
proved Of the construction of the
canal, and have taken possession
and control OF the work, have ap-
propriated and spent money on it as
the best mode of making safe and
accessible hagbor at the western
end of the great system of lake nav
Igation.
Many very interesting questions
have been argued, and ably argued,
by counsel, which we have not
found it necessary to decide. The
counsel for defense deny that the
State of Wisconsin has any such
legal interest in the flow of the wa
ter in their natural course as au-
thorlZes her to maintain a suit for
their diversion. 1t is argued that
this court can take oognizance Of no
question which concerns alone the
rights of state in her political or
sovereign character. That to sus-
tain the suit she must have some
proprietary interest which is affect
ed by the defendant. This question
has been raised and discussed in al
most every case brought before us
by State, IN virtue of the original
Jiurlsdlclon of the court. We do
not find 1t necessary to make any
decision on the point as applicable
To the case before US.
Nor shall we address ourselves
to the consideration of the mass Of
conflicting evidences as to the effect
OF the canal on the flow of the wa
ters of Superior bay.
We Will first consider the affirma-
tive defense already mentioned, for
If that be found 10 be true IN point
OF fact, 1T Will preclude any such
action by this court as the plaintiff
has prayed for.
1t is to be observed, as prelimi-
nary TO an examination of the acts
of the general government in the
special matter before Us, that the
whole system of river aud lake and
harbor improvements, whether on
the sea coast or on lakes, Or the