The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1904-10-31
KAW IS NAvIGABLE.
An Official of the War Department
Says 1t Is.

Washington, Oct 31-The war depart
lment has taken action which, it is be-
lieved, will clear the way for proceed
! ings by the government .gainst the
railroad companies whose bridges over
| the Kaw river at Kansas City are OBJ
structions to the course of that river
In a formal statement with reference
to the proposed suits against the vii
road companies, the department declar-
ed the river to be a navigable water
way within the provisions of the fed
eraI statutes and renewed its request
that such suits be started. This decla-
ration is made in a letter OF the secre
tary of war to the attorney general, in
which the secretary replies to the con-
| tention of the department OF justice
that before suits are entered against
| the railroad companies the war depart
ment should declare the Kaw a naviga-
BILE river with commerce of sufficient
Importance to justify the government in
| legal proceedings.
In this connection General Mckenzie
refers to the complaint of Geo. E. Ire
land of Swift & Co., filed with the sec
the new Rock Island bridge is an OBJ
struction to navigation. He says the
navigability of a river is matter
which cannot be determined. with au-
thority by the war department and that
the department can only express an
opinion which might not be sustained
by the courts.
An interesting statement in General
McKenzies letter is to the effect that
if the plans of the bridges of the Kaw
had been submitted to the department
it would have passed on them, which
emphasizes the fact that the depart
ment practically has no doubt as to its
supervision over the river. General Nc
Kenzie, after quoting from the decision
of the supreme court that waterway
is navigable in law when it is naviga-
BILE in fact, continues:
Under this definition think that it
must be held that the Kansas river,
which in it's natural state was such that
it afforded enamel for useful COM
merce. is a navigable waterway of the
United States. The attorney general
states that if proceedings are instituted
the war department should distinctive
ly announce as it's deliberate judgment
that the demands of commerce, present
and prospective, are sufficient to justify
the United States in expanding the
money necessary to restore this river
to a proper condition for navigation
There are many streams which are
clearly navigable under the law and
which are used as highW US of COM
merce, but are not of sufficient import
ance to justify expenditure of the
United States to put them in proper
condition for navigation; nevertheless,
they are entitled to the protection
which the law gives navigable streams.
If the conditions stated by the attorney
general must be fulfilled before pro-
ceedings can be had to restrain en-
croachment upon any of our rivers, then
the greater part of the naV1gable
streams of the United States would re-
main unprotected. can certainly ex-
press no such judgment in regard to the
Kansas river. e---sss-
'sWhile that river, in its natural state,
was a highway for useful commerce, 1t
has for many years been artificially OBJ
structed in such a manner that little, if
any, commerce has been carried on.
Whether this is sufficient to diSeStabliSh
it as a navigabke waterway should, be-
lieve, be determined by the courts A
preliminary examination to establish
permissible, be unnecessary. The matter
was exhaustively inquired into by a
board of engineer officers; and which
reports, under date of January %, 1904,
to the effect that it was a navigable
waterway within the meaning of the
federal statutes. A copy of the report
of this board is herewith submitted,
and attention is invited to the reasons
given by the board for its opinion.
Hitherto the secretary of war has
not taken action against the bridges
across the Kansas river, since COM
plants on the part of navigators have
not been filed against them. Now. how
ever, such complaint is made, and the
matter has accordingly been laid before
the attorney general. When these
bridges were built the war department
would undoubtedly have passed on the
plans had they been presented for con-
sideration. Such has been the case
within the last few weeks, and the sec
rotary of war has now under consider
alton plans for a bridge over the river
at Topeka, Kan"