1. The Webster-Ashburton Treaty of 1842 declares that "all water
communications and all the usual portages along" the international
boundary line, as established by the Treaty
"from Lake Superior to the Lake of the Woods, and also Grand
Portage, from the shore of Lake Superior to the Pigeon River, as
now actually used, shall be free and open to the citizens and
subjects of both countries."
Pigeon River is one of the waters traversed by the line, and
Grand Portage was one of several portages circuiting impassable
falls and rapids in that river which were used in aid of
transportation by canoe.
Held that the clause does not
preclude an improvement of the stream, by sluiceways, booms, and
dams, rendering it capable of transporting timber products -- a use
theretofore impossible because
Page 291 U. S. 139
of the natural obstructions, nor does it prevent the enaction of
a nondiscriminatory charge for the use of such improvement. P.
291 U. S.
157.
2. Ambiguity in a treaty may be resolved by practical
construction. P.
291 U. S.
158.
3. For the purpose of utilizing an international boundary stream
(the Pigeon River) for transportation of lumber products, the State
of Minnesota authorized a corporation to erect, and to collect
tolls for the use of, sluiceways, booms, and dams within her
limits, complementing like structures on the other side of the
international line made by another corporation under Canadian
authority.
Held:
(1) A state may make reasonable provision for local improvement
of a navigable stream until its authority is superseded by dominant
federal action. P.
291 U. S.
158.
(2) The fact that the stream forms part of an international
boundary does not make this principle inapplicable. P.
291 U. S.
158.
(3) The Act of March 3, 1901, by which Congress expressly
authorized the Minnesota corporation to improve part of the river
next to an Indian reservation, on condition that it be open to free
passage of timber cut from the reservation and passage of all other
timber for a reasonable charge, was, by necessary implication, an
approval of the improvements at other places, without which the
purpose of the Act could not have been accomplished. P.
291 U. S.
159.
(4) This Act is not to be construed as abrogating or modifying
the treaty provision (
supra), but is a practical
construction of it. P.
291 U. S.
160.
(5) The action of the Province of Ontario in providing for
complementary works on the Canadian side of the boundary and
authorizing tolls for their use is also a practical construction of
the treaty provisions. P.
291 U. S.
161.
(6) The structures and uses in question are among those
recognized by the Treaty of January 11, 1909, with Great Britain,
as "heretofore permitted." 36 Stat. 2448. P.
291 U. S.
161.
63 F.2d 567 reversed.
Appeal from affirmance of a judgment dismissing a complaint in
an action brought by a Minnesota corporation against a Canadian
corporation to recover tolls for the use of river improvements in
the transportation of timber products.
Page 291 U. S. 147
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
Pigeon River Improvement, Slide & Boom Company, a Minnesota
corporation, brought this action against Charles W. Cox, Ltd., a
Canadian corporation, to recover tolls for the use of improvements
which the Minnesota corporation had made in the Pigeon River. These
improvements embraced sluiceways, booms, and dams which were used
by the defendant in driving, sluicing, and floating timber
products. The case was removed to the federal court, a demurrer to
the amended complaint was sustained without leave further to amend,
and the judgment of dismissal was affirmed by the Circuit Court of
Appeals. 63 F.2d 567. The case comes here on appeal.
Pigeon River is a boundary stream between the Minnesota and the
Province of Ontario, Dominion of Canada, at the northeast corner of
Minnesota. The river is a small stream which has its source in
lakes on the international boundary and flows in a southeasterly
direction along that boundary for about forty miles, discharging at
Pigeon Bay into Lake Superior. The boundary is approximately
midstream. The defense against the charge of tolls is based upon
Article II of the Treaty of August 9,
Page 291 U. S. 148
1842 -- the Webster-Ashburton Treaty -- which, after defining
the international boundary, provides as follows: [
Footnote 1]
"It being understood that all the water communications and all
the usual portages along the line from Lake Superior to the Lake of
the Woods, and also Grand Portage, from the shore of Lake Superior
to the Pigeon River, as now actually used, shall be free and open
to the use of the citizens and subjects of both countries."
When this treaty was concluded, the lower portion of the Pigeon
River was impassable because of falls and rapids. On July 25, 1842,
Mr. Ferguson, who had been surveyor to the commissioners under the
seventh article of the Treaty of Ghent, [
Footnote 2] thus described this part of the river in
response to an inquiry by Mr. Webster: [
Footnote 3]
"At the mouth of the Pigeon River, there is probably about three
hundred yards in length of alluvial formation; but the river above
that, as far as to near Fort Charlotte, runs between steep cut
rocks of basaltic or primitive formation, and is a succession of
falls and rapids for nearly its whole length -- the last cataract,
which is within about a mile of its mouth, being almost one hundred
feet in height."
Below Fort Charlotte on the Pigeon River, communication with
Lake Superior was by means of a trail about nine miles long running
south of the river, and some distance from it, which was known as
the Grand Portage, and was so described in the treaty. [
Footnote 4] In Mr. Webster's
communication
Page 291 U. S. 149
to Lord Ashburton of July 27, 1842, summarizing the
understanding which had been reached as to the boundary and setting
forth the proposed stipulation as to water communications and
portages which was incorporated in the treaty as above quoted, he
said:
"The broken and difficult nature of the water communication from
Lake Superior to the Lake of the Woods renders numerous portages
necessary, and it is right that these water communications and
these portages should make a common highway where necessary for the
use of the subjects and citizens of both Governments. [
Footnote 5]"
At the time of the conclusion of the treaty, this was the
highway of commerce, used principally by fur traders, between the
Great Lakes and the country to the north and northwest. [
Footnote 6] But the Pigeon River
itself, prior to the improvements here in question, as alleged in
the complaint and admitted by the demurrer, "was at all times
incapable of use for the driving, handling and floating of logs,
pulp-wood and timber."
Page 291 U. S. 150
Pigeon River Improvement, Slide & Boom Company, which for
convenience we may call the Pigeon River Company, was incorporated
in 1898 under the general laws of Minnesota. [
Footnote 7] These laws purported to empower the
Pigeon River Company to improve streams by erecting sluiceways,
booms, dams, and other works; to acquire structures already
erected, together with necessary rights of way, shore rights, land
and lands under water; to operate its works so as to render the
driving of logs practicable, and to collect "reasonable and uniform
tolls upon all logs, lumber and timber driven, sluiced or floated"
on the streams so improved. The company was also authorized, in the
case of a boundary stream, to purchase stock in a corporation
created in an adjoining state or country for similar purposes upon
the same stream, or to unite with such a corporation, upon
conditions stated. Acting under this authority, the Pigeon River
Company took possession of the portion of Pigeon River within the
Minnesota and improved it by erecting sluiceways, booms, and dams
on the Minnesota side of the international boundary.
At the same time, the complaint alleges, the Arrow River &
Tributaries, Boom & Slide Company, was organized under the laws
of the Dominion of Canada and Province of Ontario with powers and
purposes similar to those of the Pigeon River Company, but limited
to the portion of the Pigeon River and its tributaries within the
Dominion of Canada. This Canadian corporation, under an agreement
with the Pigeon River Company, similarly improved the portion of
the Pigeon River on the Dominion side of the boundary so that the
improvements made by each company
"constituted complements the one of the other, and the whole of
said improvements
Page 291 U. S. 151
rendered the driving of logs thereon reasonably practicable and
certain."
These improvements, which have since been maintained, were all
located below Fort Charlotte on the Pigeon River, with the sole
exception of a reservoir dam at the south end of South Fowl
Lake.
Adjacent to the lower part of the Pigeon River on the Minnesota
side lies the Grand Portage Indian Reservation, extending for a
considerable distance along the stream. [
Footnote 8] By the Act of Congress of March 3, 1901,
[
Footnote 9] the Pigeon River
Company was authorized, under such regulations and conditions as
the Secretary of the Interior might prescribe, to "improve the
Pigeon River at what is known as the cascades of said river, for
the purpose of making said river at said point navigable for
floating logs." For that purpose, the company was empowered to
enter upon unallotted lands and, with the consent of the allottees,
upon allotted lands, adjacent to the cascades, of the Grand Portage
Indian Reservation and to construct such dams, bulkheads, and other
works as should be necessary. It was further provided that the
river,
"after being so improved, shall be open at all times to the free
passage of all timber cut from said Grand Portage Indian
Reservation, and to the passage of all other timber for a
reasonable charge therefor. [
Footnote 10]"
It does not appear that the Secretary of the Interior prescribed
any regulations or conditions in relation to the improvements made
by the Pigeon River Company.
Recovery is now sought for the use by the defendant, a Canadian
corporation, of these improvements in the years 1928, 1929, and
1930, in driving, sluicing, and floating upon the Pigeon River its
pulp wood and railway ties.
Page 291 U. S. 152
This timber, the defendant says in its argument, was cut from
Canadian lands and put into the Arrow river, a tributary in Canada
of the Pigeon River, and was floated into the Pigeon River on its
way to Lake Superior and Canadian mills. The tolls charged the
defendant are alleged in the complaint, and thus admitted, to be
the "reasonable and uniform tolls" which the Pigeon River Company
had established. No question is raised as to reasonableness or
discrimination, the only question being whether, in the light of
the provision of the treaty, any tolls whatever could be charged.
The contentions of the defendant are that the Pigeon River is a
boundary stream, and, as one of the "water communications"
described in the treaty, must be kept "free and open" to the use of
the citizens and subjects of both countries; that the imposition of
tolls is inconsistent with this stipulated immunity and is not
justified by the legislation which the Pigeon River Company
invokes.
The Circuit Court of Appeals in the instant case followed its
earlier decision in
Clark v. Pigeon River Improvement, Slide
& Boom Co., 52 F.2d 550, 556, where the court reached the
conclusion that the charge of tolls was forbidden by the treaty.
The court disagreed with the view advanced by the Pigeon River
Company that the words of the treaty "as now actually used" limited
the provision as to "free and open" use, expressing the opinion
that these qualifying words referred only to the Grand Portage.
Id., pp. 555-556. In support of its conclusion, the
Circuit Court of Appeals cited the decision of the Appellate
Division of the Supreme Court of Ontario in the case of
Arrow
River & Tributaries, Slide & Boom Company, Ltd., 66
Ont. L.R. 577, where the court held that the Canadian company did
not have
"the right to build upon the bed of the Pigeon River anything
which may interfere with the enjoyment of free and open use of it
by the citizens of the United States."
After the Circuit Court of Appeals
Page 291 U. S. 153
had decided the
Clark case, the judgment in the case of
the Arrow River Company was reversed by the Supreme Court of
Canada. 1932 Canadian Supreme Court Reports 495. The latter
decision was brought to the attention of the Circuit Court of
Appeals in the instant case, but the court adhered to its former
opinion. 63 F.2d 567-569.
The litigation in Canada presented the question whether the
statutes of the Province of Ontario authorized the Canadian company
to construct and maintain works upon the Pigeon River on the
Ontario side of the international boundary and to charge tolls upon
timber passing through those works. It appeared that the Arrow
River & Tributaries, Slide & Boom Company, Ltd., had been
incorporated in 1922 under the Ontario Companies Act, [
Footnote 11] for the purpose of
acquiring or constructing dams, booms and other works to facilitate
the transmission of timber down the Arrow River and its tributaries
and that part of the Pigeon River which is within the Province of
Ontario, and that the company had acquired title to, and had
extended, works which had been erected by a former corporation
formed in 1899 with the same shareholders and directors and with
similar objects. The company applied to the District Judge for
approval of tolls to be charged for the use of these works, and the
respondent in that case, the Pigeon River Timber Company, Ltd.,
sought an injunction restraining the District Judge from acting
upon the application. The Webster-Ashburton Treaty was invoked, and
it was contended that the provision of the Ontario statute, so far
as it purported to authorize the company to charge tolls for the
use of its improvements on that river, was "
ultra vires of
the Ontario Legislature." The District Judge
Page 291 U. S. 154
refused the injunction for the reason that "treaties to which
Great Britain is a party are not, as such, binding on the
individual subject in the absence of legislation." On appeal, the
Appellate Division of the Supreme Court of Ontario agreed with that
principle, but had a different opinion as to the effect of the
legislation of Ontario. That court decided that the statute in
question applied to lakes and rivers that were wholly within the
Province, and did not apply to the Pigeon River, which was a
boundary stream. The reason given for this construction was that
the court should not impute to the legislature an intent to
authorize a violation of the terms of the treaty if the statutory
provision was capable of another construction. The Supreme Court of
Canada reversed this decision of the Appellate Division of the
Supreme Court of Ontario, holding that the statute did authorize
the construction of the works on the Pigeon River and also the
charge of tolls for the use of the improvements, and, as thus
construed, was within the competency of the provincial
legislature.
In the Supreme Court of Canada, three opinions were delivered.
Three of the five judges held that the legislation was not in
conflict with the terms of the treaty. Of this majority, Judges
Rinfret and Smith, in an opinion delivered by the latter, took the
view that the right preserved by the provision of the treaty "was
the right to continue to use the water communication and portages
then in use." They expressly disagreed with the opinion of the
Circuit Court of Appeals in the
Clark case,
supra, that the words "as now actually used" applied only
to Grand Portage. These judges could not see any reason "for
preserving a right to use Grand Portage that would not apply to
other portages," and they thought that the language of the
provision appeared "to apply to all, and to the water
communications, and should be so construed." They added:
"What was being dealt with, and
Page 291 U. S. 155
what was in the contemplation of the parties, was travel and
transportation over the water communications and portages as then
used, and there was . . . no thought or intention of dealing with
the use of these nonnavigable rapids and falls that were not in use
and could not be used, the passing of which was provided for by the
portages."
Chief Justice Anglin wrote a separate opinion agreeing in the
result "largely for the reasons" stated by Judges Rinfret and
Smith. He said, however, that he should have "preferred it had the
majority of the court seen its way clear to base its decision upon
a holding" that the stipulation of the treaty
"was merely meant to ensure to the citizens of both countries
equality of rights in regard to the water communications, portages,
etc., and that it never was intended thereby to provide that in no
event should either party to the treaty be at liberty, as regards
citizens of its own nationality, to impose tolls for the use of
improvements lawfully to be made thereon;"
that
"where either party to the treaty saw fit to impose tolls upon
its own citizens in regard to such improvements, it should be at
liberty to impose like tolls (but none greater) on citizens of the
other country for the use of the improvements so made."
Two judges -- Judges Lamont and Cannon -- delivered an opinion
to the effect that,
"although, at the date of the treaty, the chief purpose for
which these water communications were being used was the
transportation by boat or canoe of persons and goods, the clause in
question places no limit on the purposes for which they might be
used;"
that "they are to be
free and open' to the people of both
countries for whatever purpose they may desire to use them as a
water communication," and therefore, if "they could be used for any
purpose which did not necessitate the making of a portage to get
past a point of danger," there was "nothing in the clause, or in
any other
Page 291 U. S.
156
part of the treaty, which would compel the use of the
portage in order to have a free passage." These judges thought that
to hold otherwise would be "to give too narrow a construction to
the language used, and to impute a want of vision to the framers of
the treaty." They expressed the opinion that the Pigeon River "from
its mouth along both sides of the boundary line, forms part of the
`water communications' which were to be free and open," and that
this provision is not consistent with the imposition of tolls for
the use of improvements erected in the river. While thus construing
the treaty, Judges Lamont and Cannon nevertheless reached the final
conclusion that the legislation authorizing the imposition of tolls
was applicable and valid. This was in the view that
"the legislative competence of a provincial legislature is as
plenary and as ample as the Imperial Parliament in the plenitude of
its power possessed and could bestow;"
that the existence of the treaty does not of itself impose a
limitation upon the provincial legislative power; that
"the treaty, in itself, is not equivalent to an Imperial Act
and, without the sanction of Parliament, the Crown cannot alter the
existing law by entering into a contract with a foreign power."
Hence, it was said, the rights and privileges given by a treaty
are, under Canadian law, enforceable by the courts only where the
treaty "has been implemented or sanctioned by legislation rendering
it binding upon the subject," and the statute giving authority to
impose tolls for the use of the improvements "must be considered to
be a valid enactment until the treaty is implemented by Imperial or
Dominion legislation." While the judges of the Supreme Court of
Canada thus differed in the grounds of their judgments, they agreed
in the result.
Under this decision in Canada and that of the Circuit Court of
Appeals, we have the extraordinary situation that, as to these
improvements at the same place on the
Page 291 U. S. 157
boundary stream -- improvements necessarily complementary to
each other -- the Ontario Company may impose charges upon Citizens
of the United States for the use of its works on the Canadian side
of the line, while the Minnesota Company may not charge citizens of
Canada for the use of its corresponding works on the Minnesota
side.
In deciding the instant case, we think that there are
controlling considerations which make it unnecessary to pass
broadly upon the significance of the words "free and open" in
provisions in treaties relating to the use of navigable streams --
a phrase which, with different contexts, has been repeatedly used
in international engagements. [
Footnote 12] The question here is simply as to the
application of these words of the Webster-Ashburton Treaty to this
particular boundary stream, the Pigeon River at points where the
river was impassable and hence not used as a means of communication
at the time the treaty was made, the travel and transportation of
that period, and of earlier times, necessarily seeking the portage
by means of which alone it was practicable to secure the desired
communication. The words of the clause in question "as then
actually used," undoubtedly refer to the Grand Portage, but we
think there is force in the reasoning of the opinion of Judges
Rinfret and Smith in the Supreme Court of Canada that these words
were not limited to that portage, and we are not convinced that it
was the intention either to
Page 291 U. S. 158
preclude an improvement which would make a stream along the
boundary available for use theretofore impossible or to prevent a
reasonable and nondiscriminatory charge for the use of such an
improvement. In the terms of the treaty, we find no compelling
clarity of prohibition. At best, the clause is ambiguous, and it is
appropriate that we should look to the practical construction which
has been placed upon it.
With respect to the portion of the stream within the territorial
jurisdiction of the State of Minnesota, the legislature of that
state authorized the erection of these improvements and the
charging of reasonable tolls. In contemplation of improvements of
this sort in a stream forming part of the international boundary,
the state legislation expressly provided for the uniting of such an
enterprise with a similar and complementary project appropriately
authorized with respect to the Canadian portion of the stream. In
the absence of a violation of treaty, or of conflict with an act of
the Congress, there can be no doubt as to the power of the state to
establish such an aid to commerce. An undertaking of this character
by the state falls within the familiar category of cases in which a
state may make reasonable provision for local improvements until
its authority is superseded by dominant federal action. [
Footnote 13] The fact that the
stream forms part of the international boundary does not make this
principle inapplicable. Where, under § 9 of the
Page 291 U. S. 159
Act of March 3, 1899, [
Footnote 14] the consent of Congress is required for the
erection of structures in or over navigable waters not lying wholly
within a state, "the Act does not make Congress the source of the
right to build, but assumes that the right comes from another
source -- that is, the state;" it merely subjects the exercise of
the right "to the further condition of getting from Congress
consent to action upon the grant."
International Bridge Co. v.
New York, 254 U. S. 126,
254 U. S.
133.
It is not necessary to decide whether, in view of the impassable
condition of the portion of the Pigeon River under consideration,
the improvements came under the provisions of either § 9 or § 10 of
the Act of March 3, 1899, [
Footnote 15] as we are of the opinion that the
improvements were made with the consent of Congress. By the Act of
March 3, 1901 [
Footnote 16]
(which apparently was not brought to the attention of the Circuit
Court of Appeals), the Congress expressly authorized the Pigeon
River Company to improve the river in order that it might be
rendered navigable for floating logs, to erect dams and other works
necessary for that purpose, and to impose a reasonable charge for
the passage of all timber save that which was cut from the
adjoining Grand Portage Indian Reservation. The fact that this
authority directly applied to that part of the Pigeon River known
as "the cascades" does not, in our judgment, detract from the
significance of the act as showing the acquiescence of the Congress
in the improvements here in question. The authority was given
because of the governmental interest in the Indian Reservation
adjacent to the Pigeon River, and
Page 291 U. S. 160
it is obvious that the works at the cascades would have been
futile if the related portions of the river required for the
contemplated flotation of timber were not appropriately improved.
The consent of the Congress, running expressly to the Pigeon River
Company as a corporation organized under the applicable laws of
Minnesota, for the erection of the structures at the cascades where
the interests of the Indian Reservation were involved, necessarily
implied acquiescence in the action by the state in authorizing the
improvements which would accomplish the purpose which the Congress
had in view. Nor does it affect the question that the congressional
authorization was stated to be subject to such regulations and
conditions as the Secretary of the Interior might prescribe. It is
not shown that the Secretary has imposed restrictions, and the Act
did not require him to impose them.
We find no reason for regarding this action as intended to
abrogate or modify the provision of the Webster-Ashburton Treaty.
So far as the act of Congress specifically authorized the charging
of tolls for the use of the improvements on the Minnesota side of
the boundary, it would control in our courts as the later
expression of our municipal law, even though it conflicted with the
provision of the treaty and the international obligation remained
unaffected.
The Cherokee
Tobacco, 11 Wall. 616,
78 U. S. 621;
Head Money Cases, 112 U. S. 580,
112 U. S. 597;
Cook v. United States, 288 U. S. 102,
288 U. S. 120.
But the intention to abrogate or modify a treaty is not to be
lightly imputed to the Congress.
Chew Heong v. United
States, 112 U. S. 536,
112 U. S. 549;
United States v. Payne, 264 U. S. 446,
264 U. S. 449;
Cook v. United States, supra. We think that it is proper
to infer that the Congress, in view of the condition of the stream
and the purpose of the improvements, did not consider the authority
to make them and to impose a reasonable charge for their use as
being inconsistent with the treaty
Page 291 U. S. 161
stipulation. We regard the action of the Congress, following
that of the state, as a practical construction of the treaty as
permitting these works and justifying the charge.
The same may be said of the action of the Province of Ontario in
providing for the complementary works on the Canadian side of the
boundary and authorizing tolls for their use. While this action was
taken in the plenitude of the power of the provincial legislature
as defined by the Supreme Court of Canada, we perceive no reason
for ascribing to that legislature an intention to override the
provision of the treaty, but rather see in that action an
assumption on the part of the legislature that its course was not
repugnant to the treaty, an inference which finds abundant support
in the conclusion of the majority of the judges of the Supreme
Court of Canada. Nor does it appear that either of the parties to
the treaty has made to the other any representations as to a breach
of obligation by reason of the making of the improvements or the
imposition of tolls. We find no ground for rejecting the practical
construction which the treaty has thus received.
Further, in 1909, for the purpose of settling all questions
pending between the United States and the Dominion of Canada
"involving the rights, obligations or interests of either in
relation to the other or to the inhabitants of the other, along
their common frontier," the United States and Great Britain entered
into a treaty concerning the boundary waters. [
Footnote 17] By Article I of this treaty, the
parties formulated their agreement
"that the navigation of all navigable boundary waters shall
forever continue free and open for the purposes of commerce to the
inhabitants and to ships, vessels and boats of both countries
Page 291 U. S. 162
equally. [
Footnote
18]"
The treaty expressly refers to uses and obstructions of boundary
waters which had theretofore been permitted and sets up an
International Joint Commission with jurisdiction to deal with
future uses and obstructions, as stated. Article III of the treaty
thus provides:
"It is agreed that, in addition to the uses, obstructions, and
diversions heretofore permitted or hereafter provided for by
special agreement between the Parties hereto, no further or other
uses or obstructions or diversions, whether temporary or permanent,
of boundary waters on either side of the line, affecting the
natural level or flow of boundary waters on the other side of the
line, shall be made except by authority of the United States or the
Dominion of Canada within their respective jurisdictions and with
the approval, as hereinafter provided, of a joint commission, to be
known as the International Joint Commission. "
Page 291 U. S. 163
We think it may fairly be said that the improvements here in
question on the Pigeon River constituted structures and uses which
had been permitted by the parties prior to the treaty of 1909 and
were recognized by that treaty. It does not appear that any action
has been taken by either government or by the International Joint
Commission inconsistent with this view.
We conclude that it was error to sustain the demurrer to the
amended complaint. The judgment of the Circuit Court of Appeals is
reversed, and the cause is remanded for further proceedings in
conformity with this opinion.
Reversed.
[
Footnote 1]
8 Stat. 573, 574; Malloy, Treaties, vol. 1, pp. 652, 653.
[
Footnote 2]
8 Stat. 221, 222; Malloy, Treaties, vol. 1,
loc. cit.,
pp. 617, 624.
[
Footnote 3]
Sen.Doc., vol. 1, No. 1, 27th Cong., 3d Sess., pp. 104, 105.
See also "The Topography and Geology of the Grand
Portage," George M. Schwartz, Minnesota Historical Bulletin, vol.
9, p. 27.
[
Footnote 4]
"The Pigeon River, which now forms the international boundary at
Lake Superior, was, in the days of water transportation, the best
natural highway between the Great Lakes or the St.Lawrence system,
and the great northwestern section of the continent, with its
thousands of lakes and streams draining into Hudson Bay or the
Arctic Ocean. But the Pigeon River, through the last twenty miles
of its course before it flows into Lake Superior, is so obstructed
by falls and by cascades in rocky canyons as to be impossible of
navigation. On the Canadian side, the land is too mountainous and
the distance too great for portaging to be practicable; but on the
American side, the line of the lakeshore is roughly parallel to the
river, and, about seven or eight miles from the mouth of the river,
a little bay forms a natural harbor from which a portage of about
nine miles over not too difficult country can be made to the Pigeon
River above the cascades."
"The Story of the Grand Portage," Solon J. Buck, Minnesota
History Bulletin, vol. 5, p. 14.
[
Footnote 5]
Sen.Doc., vol. 1, No. 1, 27th Cong., 3d Sess., p. 61.
[
Footnote 6]
For a description of the traffic carried on by means of the
Grand Portage,
see "The Story of the Grand Portage,"
Minnesota History Bulletin, vol. 5, pp. 15-26; "Voyages from
Montreal through the Continent of North America," Sir Alexander
Mackenzie, vol. 1, pp. lxxi, lxxvii-1xxxii; Henry-Thompson
Journals, Elliott Coves, vol. 1, pp. 6, 7; Wisconsin Historical
Collections, vol. xi, pp. 123-125, note.
[
Footnote 7]
General Statutes of Minnesota 1878, chap. 34; Laws 1889, chap.
221; Laws 1905, chap. 89; Mason's Minnesota Statutes, 1927, §§
7550-7552.
[
Footnote 8]
10 Stat. 1109, 1110;
see also H.R. 51st Cong., 1st
Sess., Ex.Doc. No. 247, p. 59.
[
Footnote 9]
Chapter 878, 31 Stat. 1455.
[
Footnote 10]
See Cong.Rec. 56th Cong., 2d Sess., vol. 34, pt. 4, p.
3462.
[
Footnote 11]
R.S.O.1914, c. 178; R.S.O.1927, c. 218; Lakes and Rivers
Improvement Act, R.S.O.1927, c. 43, §§ 32, 52.
[
Footnote 12]
See Treaty of September 3, 1783, between the United
States and Great Britain, Art. VIII, Malloy, vol. 1, p. 589;
Webster-Ashburton Treaty, 1842, Art. III, Malloy, vol. 1, p. 653;
Treaty of Washington, 1871, Arts. XXVI, XXVIII,
compare
Art. XXVII, Malloy, p. 711; Convention concerning the Boundary
Waters between the United States and Canada, 1909, Art. I, U.S.
Treaties, vol. 3, p. 2608; Treaty of Guadalupe Hidalgo, 1848, Arts.
VI, VII; Gadsden Treaty, 1853, Art. IV, Malloy, pp. 1111, 1123;
Moore, International Law Digest, vol. 1, p. 625
et seq.;
Hyde, International Law, vol. 1, § 160
et seq.; Oppenheim,
International Law, 4th Ed., § 178
et seq.
[
Footnote 13]
Willson v. Black Bird Creek
Marsh Co., 2 Pet. 245;
Gilman v.
Philadelphia, 3 Wall. 713;
Pound v. Turck,
95 U. S. 459;
Mobile County v. Kimball, 102 U.
S. 691;
Cardwell v. American River Bridge Co.,
113 U. S. 205;
Huse v. Glover, 119 U. S. 543;
Sands v. Manistee River Improvement Co., 123 U.
S. 288;
Lindsay & Phelps Co. v. Mullen,
176 U. S. 126;
Minnesota Rate Case, 230 U. S. 352,
230 U. S.
403-405;
International Bridge Co. v. New York,
254 U. S. 126;
Economy Light & Power Co. v. United States,
256 U. S. 113;
Newark v. Central R. Co., 267 U.
S. 377.
[
Footnote 14]
30 Stat. 1151.
[
Footnote 15]
See United States v. Rio Grande Dam & Irrigation
Co., 174 U. S. 690,
174 U. S.
707-708;
Leovy v. United States, 177 U.
S. 621,
177 U. S. 628;
Economy Light & Power Co. v. United States,
256 U. S. 113,
256 U. S.
123-124;
Wisconsin v. Illinois, 278 U.
S. 367,
278 U. S.
412-413.
[
Footnote 16]
See note 9
[
Footnote 17]
36 Stat. 2448, U.S. Treaties, vol. 3, p. 2607.
[
Footnote 18]
Article I of the Treaty of 1909 is as follows:
"The High Contracting Parties agree that the navigation of all
navigable boundary waters shall forever continue free and open for
the purposes of commerce to the inhabitants and to the ships,
vessels, and boats of both countries equally, subject, however, to
any laws and regulations of either country, within its own
territory, not inconsistent with such privilege of free navigation
and applying equally and without discrimination to the inhabitants,
ships, vessels, and boats of both countries."
"It is further agreed that, so long as this treaty shall remain
in force, this same right of navigation shall extend to the waters
of Lake Michigan and to all canals connecting boundary waters, and
now existing or which may hereafter be constructed on either side
of the line. Either of the High Contracting Parties may adopt rules
and regulations governing the use of such canals within its own
territory, and may charge tolls for the use thereof, but all such
rules and regulations and all tolls charged shall apply alike to
the subjects or citizens of the High Contracting Parties and the
ships, vessels, and boats of both of the High Contracting Parties,
and they shall be placed on terms of equality in the use
thereof."