The provisions in the Ordinance for government of the Northwest
Territory and subsequent acts of Congress to the effect that
navigable waters leading into the Mississippi and St. Lawrence
Rivers shall be common highways and forever free to the inhabitants
of that territory and of the United States do not determine
navigability of any of the streams, but only define rights
dependent upon the existence of navigability.
There is no federal right involved in the obstruction, or use by
private owners, of a nonnavigable stream wholly within a state.
The question of navigability of a river wholly within a state is
purely one of fact, and where the state court has decided that such
a river is nonnavigable, there is no right left to review.
A state has no federal rights which it may exert for itself or
on behalf of its citizens or of all the citizens of the United
States in regard to a river wholly within its boundaries which the
highest court of the state has declared to be nonnavigable, nor are
any such rights created by acts of Congress merely authorizing
surveys for and estimates
Page 234 U. S. 498
of cost of, improvements and not actually authorizing or
appropriating for the same.
Writ of error to review 241 Ill. 290 dismissed.
The facts, which involve the jurisdiction of this Court under §
237, Judicial Code, to review a judgment of the state court based
on a finding of nonnavigability of a river wholly within the state,
are stated in the opinion.
Page 234 U. S. 510
MR. JUSTICE McKENNA delivered the opinion of the Court.
This was a proceeding brought in the Circuit Court of Grundy
County, Illinois, being an information filed by the Attorney
General of the state on behalf of the people of the state on the
relation of the Governor, against defendant in error, the Economy
Light & Power Company, to restrain that company from erecting a
dam across the Des Plaines River, and from causing the waters of
the river to back up and overflow the lands of the state; to
refrain from permitting the obstructions placed in the river to
remain therein, and that certain deeds, leases, and contracts made
by the canal commissioners of the state to the company be declared
null and void. The information was dismissed by the circuit court,
and its decree was affirmed by the supreme court. This writ of
error was then sued out by plaintiffs in error.
A motion is made to dismiss on the grounds -- (1) that no
federal question was decided by the supreme court adversely to
plaintiffs in error; (2) the federal questions sought to be raised
in this Court were not raised in the trial court, and, under the
practice in Illinois, were not open to review in the supreme court,
and were not reviewed; (3) the federal questions raised are without
merit; (4) the decision of the supreme court is sustainable upon
nonfederal grounds.
The motion makes necessary a consideration of the
Page 234 U. S. 511
allegations of the information and of the grounds of decision of
the court. The information alleges the following: the State of
Illinois was formed out of the Northwest territory ceded by
Virginia to the United States in 1784, and, by the ordinance for
the government of the territory, it was declared in Article 4
that
"the navigable waters leading into the Mississippi and
St.Lawrence, and the carrying places between the same, shall be
common highways, and forever free, as well to the inhabitants of
the said territory as to the citizens of the United States and
those of any other states that may be admitted into the
Confederacy, without any tax, impost, or duty therefor."
On the May 18, 1796, 1 Stat. 468, c. 29, Congress passed an act
for the sale of lands of the United States in the territory
northwest of the Ohio River and above the mouth of the Kentucky
River, by § 9 of which act it was provided that all navigable
rivers within the territory to be disposed of by virtue of the act
should be deemed to be and remain public highways. Subsequently
there was separated from such territory by an act of Congress,
dated May 7, 1800, 2 Stat. 58, c. 41, the portion thereof which now
embraces the States of Illinois and Louisiana, to be called Indiana
Territory. On March 26, 1804, 2 Stat. 277, c. 35, Congress, acting
under the Constitution of 1787, passed an act for the disposal of
the public lands in Indiana Territory, by which it was provided
that all the navigable rivers, creeks, and waters within that
territory should be deemed to be and remain public highways.
By an Act of February 3, 1809, 2 Stat. 514, c. 13, Congress
divided the Indiana Territory and constituted that portion of it
which now comprises the State of Illinois a separate territory, to
be called Illinois, and provided that its inhabitants should be
entitled to and enjoy all and singular the rights, privileges, and
advantages
Page 234 U. S. 512
granted and secured to the people of the Northwest Territory by
the ordinance of July 13, 1787.
On April 18, 1818, 3 Stat. 428, c. 67, Congress passed an act to
enable the people of Illinois to form a constitution and state
government for admission into the Union upon an equality with other
states, and provided that the government should be republican, and
not repugnant to the ordinance of July 13, 1787. A constitution was
adopted, and Congress, on December 3, 1818, 3 Stat. 536, declared
the admission of the state into the Union, that its constitution
and government was republican and in conformity to the provisions
of the articles of compact between the original states and the
people and the states in the territory northwest of the River Ohio,
passed on July 13, 1787.
The River Des Plaines is situated in the Northwest Territory,
rises in Wisconsin, and flows southerly into the State of Illinois
(its course is given), in all a distance of about 96 miles.
The River Kankakee rises in Indiana and flows westerly into
Illinois and unites in Grundy County with the Des Plaines, forming
with it the Illinois, which flows thence westerly and southwesterly
through several counties in Illinois into the Mississippi River.
Wherefore, by reason of the fact that the Des Plaines River is
wholly within the Northwest Territory, and that it empties its
waters into the Mississippi, and by reason of the other facts set
forth, it is subject to the provisions of the acts of Congress set
out.
It is shown by early explorations and discoveries that the Des
Plaines River was navigable from a point near where is now situated
the City of Chicago to its mouth, and was used as a highway for
commercial purposes, and commerce was carried on over it and over
the Chicago River, located in Cook County, Illinois, and connection
therewith made by a short portage between the two
Page 234 U. S. 513
rivers near the site of what is now the City of Chicago and was
in use as a highway of commerce leading from Lake Michigan and the
waters emptying into the St.Lawrence River, on the one hand, and
the waters of the Mississippi River, on the other, thenceforward
from the time of said first use up to and at the time when the
ordinance of 1787 and the several acts of Congress were
respectively enacted.
Afterward, the State of Illinois, by and through its
Legislature, and in obedience to the several acts of Congress set
forth, assumed charge of the river, and in 1839 gave permission for
the building of a toll bridge across the river, and subsequently,
by an act passed in 1839, amending the several laws in relation to
the Illinois and Michigan Canal, it was provided that no stream of
water passing through the canal lands should pass by the sale so as
to deprive the state of the use of such water if necessary to
supply the canal without charge for the same, and it was further
provided that the lands situated upon the streams which have been
meandered by the surveys of public lands by the United States
should be considered as bounded by the lines of those surveys, and
not by the streams. In the same year, an act was passed declaring
the river a navigable stream, and providing that it should be
deemed and held a public highway, and should be free, open, and
unobstructed from its point of connection with the canal to its
utmost limit within the state for the passage of all boats and
water craft of every description.
In 1845, the state authorized the construction and continuance
of the mill dam across the river, with reservation of the right to
the State of improving the dam and of using the water for the canal
and for any other purpose, and, in 1849, authorized the building of
a bridge at Lockport. The state, by certain acts of its legislature
(they are set out), created the Sanitary District of Chicago, under
the provision of which a channel was constructed connecting Lake
Michigan with the Des Plaines River at a point
Page 234 U. S. 514
some sixteen miles above the site of the dam in question, and
through which about 300,000 cubic feet of water per minute are
drawn through the Chicago River and the Sanitary District Drainage
Channel, and discharged in the Des Plaines River.
It was provided that the channel, when completed, should be a
navigable stream, and that, when the general government should
improve the river, it should have full control over the same for
navigation purposes, but not to interfere with its control for
sanitary drainage purposes.
On December 6, 1907, the legislature passed an act, which is as
follows:
"SEC. 1. Be it enacted by the People of the State of Illinois,
represented in the General Assembly: That the Des Plaines and
Illinois Rivers throughout their courses from below the water power
plant of the main channel of the Sanitary District of Chicago in
the Township of Lockport at or near Lockport, in the County of
Will, are hereby recognized as, and are hereby declared to be,
navigable streams, and it is made the special duty of the Governor
and the Attorney General to prevent the erection of any structures
in or across said streams without explicit authority from the
General Assembly, and the Governor and Attorney General are hereby
authorized and directed to take the necessary legal action or
actions to remove all and every obstruction now existing in said
rivers that in any wise interferes with the intent and purpose of
this act."
The relator, Charles S. Deneen, is the Governor referred to in
the act, and that, by virtue of the statute, his office and
constitutional duty, he has a special interest and responsibility
in the matters set forth.
The purchasers from the state in section 25 and other similarly
situated lands with reference to the Des Plaines River did not take
and did not claim to take under their several purchases that
portion of the lands lying between
Page 234 U. S. 515
the meander line and the water of the river, and that the lands
so lying have never been used by any individual under any claim of
authority or right vested in the purchasers from the State of
Illinois, save and except as claimed by defendant. Lands so lying
therefore together with the bed of the stream of the river in said
quarter-section, and other lands similarly situated with reference
to the river, have not passed by any purchase of adjoining lands
from the State of Illinois, but the same and every part thereof is
owned by the state, and held for the benefit of its people and of
the people of the United States as a public highway for
commerce.
The trustees of the Illinois and Michigan Canal executed and
delivered to one Charles E. Boyer a deed bearing date October 22,
1860, to land in section 25, excepting and reserving so much as was
occupied by the canal and its waters, and a strip 90 feet wide on
either side of the canal, containing 196 62/100 acres, the tract
being a portion of the land granted by the United States to the
state to aid the state in opening a canal to connect the waters of
the Illinois River with those of Lake Michigan, and by the state
granted to the Board of Trustees of the canal for the purposes set
forth in the Act of February 21, 1843.
The defendant derives its title by mesne conveyances from Boyer
and certain contracts and leases entered into between the canal
commissioners and one Harold F. Griswold and assigned to defendant,
and, in pursuance of the claim of right thus obtained, defendant
commenced the construction of a dam across the river, but that the
said several leases, deeds, and contracts are ineffectual to confer
any right to build or maintain the dam.
The legislature of the state, by a proper resolution passed on
October 16, 1907, has proposed the building of a deep waterway
commencing at the southern end of the Chicago Drainage Canal and
extending along the Des Plaines River, to be submitted to a vote of
the people
Page 234 U. S. 516
of the state, and, if the same is built, as incident thereto
locks and dams will necessarily be constructed across the deep
waterway at or near the S.E. 1/4 of section 25, which dams will
incidentally afford water power of the value of several millions of
dollars to the state, which will be lost to the state if the
defendant be permitted to construct the dam in question.
The 90-foot strip along the line of the Illinois and Michigan
Canal constitutes an integral part of the canal, and the trustees
of the canal and the canal commissioners of the state had no right
or authority under the law to convey the same by deed, lease, or
otherwise. Wherefore the defendant acquired no right to such strip,
and said deeds, leases, contracts, and other agreements are void so
far as they pertain to the bed of the stream of the river, and to
the lands lying outside the meander line.
By virtue of the several acts of Congress set forth, the state
is the owner of such lands and other lands similarly situated. The
defendant, claiming to own such lands and other lands in section
25, has actually begun the erection of the dam referred to; the
Attorney General therefore on December 12, 1907, served notice upon
the defendant to desist from the erection of the dam and from
further trespassing upon the lands owned by the state, and to
remove any and all obstructions placed thereon. Defendant has
ignored the notice, and, unless prevented by injunction, will
complete the dam, to the great impairment of navigation, and to the
great and irreparable damage to the people of the state.
There are other allegations in regard to the leases and
contracts from the canal commissioners which are not necessary to
be given.
The prayer of the information was for an injunction in
accordance with the allegations.
Defendant in error summarizes its answer as follows: it denied
that the Des Plaines River was or ever had been
Page 234 U. S. 517
navigable, and alleged that it never had been navigated for the
purpose of commerce, and also that it had, from the earliest times,
been completely obstructed by various bridges and dams built
without legislative authority, and that the state itself had
constructed and for many years maintained, and still maintains, a
dam entirely across the river at Joliet. It set out correspondence
with the War Department of the United States before the
construction of the dam was begun, from which it appeared that the
plans of the proposed structure were submitted to that department
for the purpose of ascertaining whether the project would be in
harmony with the work of the improvement of the river proposed --
but never decided upon -- by the government, and that the officers
of the department stated not only that it would be so in harmony,
but, if carried out, it would save the government large sums of
money. The correspondence also stated that the river had never yet
been considered a navigable stream of the United States, and that
it was not subject to the provision of §§ 9-13 of the Act of March
3, 1899, 30 Stat. 1151, 1152, c. 425, or to other similar United
States legislation.
The answer further alleged that subsequently, defendant in error
acquired the property, and that a large sum of money had been
expended and heavy obligations incurred by it in carrying out the
project of building the dam.
Upon the issues thus made, evidence was taken, which composes
three large volumes, upon which the courts below decided against
plaintiffs in error, and we are to consider whether, in so doing,
any federal right was passed upon or denied it.
To sustain the contention that such right was passed upon and
denied, it is said
"that, at the time the information in equity was filed, and for
over six years before the defendant in error became a riparian
owner, the Des Plaines River, irrespective of the question of its
navigability,
Page 234 U. S. 518
was a navigable river of the United States at the point where
the dam was erected,"
and this because of the
"concurrent action of the state and federal governments by the
construction of the Chicago Sanitary Ship Canal, the connection of
it with the Chicago River and Lake Michigan on the northeast, and
the discharge of the water into Lake Michigan from it into Des
Plaines and Illinois on the southwest."
It is further contended that the state court did not decide this
question adversely to plaintiffs in error, but, on the contrary,
excluded the admitted fact as being immaterial because that
condition was artificially created. And this because defendant in
error urged in that court that the navigability of the river could
not be determined by its capacity as improved by the addition of
the water of the Sanitary District. The court, in its decision,
therefore, it is the final contention, denied the rights arising
from the condition of navigability thus created by state and
federal action, and plaintiffs in error insist that
"if artificial navigability can create a public right which is
entitled to protection against the acts of one who purchases
riparian property after that condition was created, then, on the
conceded law, the judgment of the state court was erroneous. And if
those public rights are created or protected by federal law, this
Court has jurisdiction to reverse the judgment."
The inquiry immediately occurs, how did the so-called public
right arise? From the mere addition of water to the river or by the
conditions upon which it was admitted? The bill alleges the
enactment of many laws and a complex system of improvements by
virtue of them, rights asserted by the state to the lands bordering
on the river, and rights to the bed of the river, conveyances,
leases, and contracts by public officers constituted by laws which
verbally at least, confer authority upon them, and rights asserted
by defendant in error arising from the execution
Page 234 U. S. 519
of such authority. But all of the questions hence arising are
state questions, whether depending upon law or fact, which it is
not in our province to review. It would seem, therefore, at the
outset, that one of the elements of the federal right asserted is
absent. However, let us see what the supreme court of the state has
decided.
Mr. Justice Vickers, delivering the opinion of the court,
says:
"Appellant [the state] bases its claim to relief on three
propositions -- as follows: (1) that the State of Illinois owns the
bed of the river at the point where it is proposed to build said
dam; (2) that the Des Plaines River is a navigable stream, and that
the proposed dam would constitute an obstruction to navigation; (3)
that certain contracts executed by the commissioners of the
Illinois and Michigan Canal, under which appellee [defendant in
error] claims certain rights in connection with the construction of
said dam, are void, and that no rights were acquired by or can be
asserted under said contracts."
The first and third propositions manifestly involve state
questions, and were decided adversely to plaintiffs in error. They
might be put out of discussion except so far as they may have
bearing on the second proposition. By the second proposition, the
navigability of the river is presented as a question of fact, and
of it the court said that it had received the most exhaustive
treatment by counsel, and that, if the dismissal of the bill by the
court below had been without prejudice to renew the application for
injunction, the action of the court could be sustained because of
the utter failure of the plaintiffs in error to prove that the
construction of the proposed dam would be an obstruction to the
then navigation of the river. "There is no proof," the court
said,
"that the river is now being used as a public highway for
commerce. On the contrary, the evidence not only shows that the
river is not being so used, but it shows affirmatively that,
Page 234 U. S. 520
owing to the presence of numerous other dams and some fifty or
more bridges which span the river, it would be impossible, under
existing conditions, to navigate the stream. There being at present
no navigation whatever upon the river, obviously the dam in
question cannot be said to be an obstruction to navigation that has
no existence in fact."
The trial court not making the indicated reservation, but having
rendered a decree based on the finding that the river was not
navigable, thus settling the question for all time, the supreme
court considered the question as presented on the merits. After a
review of the evidence and the contentions of the parties, it
decided that the river was not navigable in a state of nature, and
declared that there was not in the entire record a well
authenticated instance in which a boat engaged in commerce
navigated the waters of the Des Plaines River. Referring to the
testimony, the court said (p. 336):
"Whatever may be thought of the preponderance of it one way or
the other, it can have but little weight as against the
uncontroverted fact that the river has never been used as a public
highway for commerce."
And again,
"After the most careful consideration of this question, we are
of the opinion that the Des Plaines River in its natural condition
is not a navigable stream, and that the rights of parties to this
suit must be determined upon that basis."
The court besides rejected the contention that the Sanitary
District Act declared the river to be navigable. The contention, it
was said, was
"based on a sentence in § 24 of said act, as follows: 'When such
channel shall be completed, and the water turned therein, to the
amount of 300,000 cubic feet of water per minute, the
same
is hereby declared a navigable stream.' Appellant's [the state]
contention, under this statute, is thus stated in its brief: 'The
same means that the water flowing in that channel is a
navigable stream. The water so turned in was navigable in fact, and
it does not lose its navigability
Page 234 U. S. 521
in passing out of the artificial channel into the channel of the
Des Plaines River. The water is just as navigable one-half mile
southwest of Joliet as it is one-half mile northeast of Joliet.'
The argument is based upon an erroneous construction of the word
'same.' That term refers to the channel of the Sanitary District,
and has no reference to the water after it leaves the channel [p.
329]."
The court, however, said that, even if the legislature had
declared in unequivocal language that the river was navigable, as
it did by the Act of 1907 (the act under which the information was
filed), the declaration could not affect the rights of defendant in
error, they being protected by the Constitution of the state, which
forbids private property from being taken for public use without
just compensation previously made, for which the court cited a
number of cases and Cooley on Constitutional Limitations (side p.
591). And it was added that none of the legislative acts had the
primary purpose of permitting a deep-water channel from the Lakes
to the Gulf by means of improving the channel of the Des Plaines
River, nor did the various acts passed in the interest of the
Illinois and Michigan Canal nor the Sanitary District Act include a
general scheme for the improvement of that river. "Up to this
time," it was further said (p. 331), "no general plan for the deep
waterway has been adopted by the state or nation," and whether any
such enterprise will ever be adopted, and whether it will include
the Des Plaines River, "are all legislative questions with which
the courts have no concern." If it be done, the court continued, it
must be done
"with due regard to the rights of every citizen, however humble
and insignificant those rights may seem in contrast with the great
public consummation."
We have already seen that the contention of the plaintiff in
error that the bed of the river was in the state, and
Page 234 U. S. 522
not in the riparian owners, among whom is defendant in error, by
force of the Act of the Legislature of the State of February 26,
1839, in relation to the Illinois and Michigan Canal, was held
untenable, and it was further held that the contracts of the canal
commissioners under which defendant in error claims rights were
valid. And the court further decided that the legislation of the
state did not intend nor contemplate the improvement of the Des
Plaines River from a condition of nonnavigability to navigability,
and no act, except that of 1907, had declared it to be navigable,
and that no act could do so and affect private rights under the
constitution of the state. The supreme tribunal of the state has
therefore decided that plaintiffs in error have no elements of
right against defendant in error.
It is said, however, as a foundation of a right under the acts
of Congress alleged, that the river, although it was not navigable
in its natural state, became so by the addition of water from the
Sanitary District. This contention was rejected by the supreme
court, the court deciding, as we have seen, that the navigability
of the river was to be determined by its natural condition, and not
by its condition created by artificial means. In resistance to this
conclusion of the court, and in assertion of a federal right,
plaintiffs in error cite, besides the acts of Congress referred to
in the information, certain acts of Congress passed in 1899, 1900,
and 1902, appropriating money for "a survey and estimates of cost
for the improvement of the upper Illinois and lower Des Plaines
Rivers in Illinois, with a view to the extension of navigation from
the Illinois River to Lake Michigan," and adduce, besides, other
recognitions by Congress of the navigability of the river, and
contend that therefore, the rights of the state are based on
federal laws, and
"that, in its sovereign right, and as
parens patriae
and of its citizens, and
on behalf of the citizens of all of
the United States [italics counsel's], it had
Page 234 U. S. 523
the right under those federal laws to prevent the accomplishment
by defendant of an act destructive of the navigability of the
stream."
Plaintiffs in error state their contention another way. They say
the acts of the two sovereignties, state and national, in
furtherance of a common object, are so interwoven and related that
the rights and questions arising from them, and the construction of
their effect, necessarily create federal questions.
But we have seen that the supreme court of the state decided
there was no concurrence of the state in furtherance of the
so-called common object -- that is, that the various acts in regard
to the Illinois and Michigan Canal or the Sanitary District did not
include any general scheme for the improvement of the Des Plaines
River, and it was certainly within the competency of the court to
so determine. The court was also of the view that, under the
Constitution of the state, the state did not have the "sovereign
right, and as
parens patriae," to restrain the acts of
defendant in error.
The court seemed to consider that it had decided all of the
contentions of the state when it had decided the question of the
navigability of the river both in its natural condition and its
condition after the addition of the waters of the Sanitary
District. The fact was and is pivotal. The ordinance for the
government of the Northwest Territory and the subsequent acts of
Congress set out in the information do not determine navigability
of the streams, but only define rights which depend upon its
existence. Passing the question, therefore, whether the ordinance
or the acts refer to physical obstructions or to political
regulations, and also passing the question whether they were of
force after the admission of the state into the Union (on both
questions,
see Willameete Iron Bridge Co. v. Hatch,
125 U. S. 1), the
fact of navigability having been decided against the state by the
state court, there is no federal
Page 234 U. S. 524
right left to review.
Crary v. Devlin, 154 U.
S. 619;
Cameron v. United States, 146 U.
S. 533;
Egan v. Hart, 165 U.
S. 188. In the latter case, it was decided that the
question of navigability is purely one of fact.
It is said, however, that, by the Acts of 1899, 1900, and 1902,
Congress has taken jurisdiction of the Des Plaines River. If so,
the state is not the instrument through which the jurisdiction can
be exercised.
United States v. Bellingham Bay Boom Co.,
176 U. S. 211;
Willamette Iron Bridge Co. v. Hatch, supra; Cleveland v.
Cleveland Electric Ry. Co., 201 U. S. 529.
But the cited acts are not appropriations for improvements
undertaken, but for improvements which may be undertaken; not a
jurisdiction exercised, but a jurisdiction to be exercised. And, as
we have seen, it is alleged in the answer, and the allegation is
sustained by the evidence, that the plans of defendant in error's
structure were submitted to the War Department, and it was declared
by that department,
"The work proposed is in general harmony with the work of
improvement recommended by the Board of Engineers appointed under
the authority of the Rivers and Harbors Act of June 13, 1902 (32
Stat. 331, 334, c. 1079)."
But the department, inasmuch as Congress had not authorized the
improvement of the river, did "not deem it expedient to take
further and definite action in the matter of approving the plans."
It is manifest, therefore, that the state has no right under
federal laws which it may assert for itself or "on behalf of the
citizens of all of the United States," and the motion to dismiss
must be granted.
Dismissed.