U.S. Supreme Court
The Montello, 87 U.S. 20 Wall. 430 430 (1874)
87 U.S. (20 Wall.) 430
1. The navigability of a stream, for the purpose of bringing it within the terms "navigable waters of the United States," does not depend upon the mode by which commerce is conducted upon it, as whether by steamers, or sailing vessels, or Durham boats, nor upon the difficulties attending navigation, such as those made by falls, rapids, and sandbars, even though these be so great as that while they last, they prevent the use of the best means, such as steamboats, for carrying on commerce. chanroblesvirtualawlibrary
It depends upon the fact whether the river in its natural state is such as that it affords a channel for useful commerce.
2. These doctrines applied to the Fox River in Wisconsin, a river whose navigability was originally so much embarrassed by rocks, rapids &c., as that only Durham boats could use the stream, but which afterwards, by canals, locks, and other artificial means was so much improved as that steamboats could use it freely, the river having, however, never, in its natural state, been a channel for useful commerce.
In the southern part of the State of Wisconsin, about a mile and a half east of Portage City and at a point about equidistant from the eastern and western boundaries of the state, rises the Fox River. The stream flows in a northeasterly direction, through Lake Winnebago into Green Bay, thence into Lake Michigan, so connecting through that lake and Lakes Huron, Erie, and Ontario with the River St. Lawrence and other great waters having their hydrographic basin on the Atlantic coast and discharging themselves into the Atlantic Ocean.
In a bend before Portage City sweeps the Wisconsin River, which, rising in the regions far northwest of the place just named, before arriving at Portage City runs eastwardly, and then turning to the west and flowing a certain distance falls into the Mississippi River. In this way a natural watercourse has been always open from the headwaters of the Mississippi through the Wisconsin River to the spot now known as Portage City.
Of course when a "portage," or carriage by land, was made of merchandise from the Wisconsin River at Portage City to the sources of Fox River, less than two miles east, the merchandise coming from the headwaters of the Mississippi was on waters whose course was towards the Atlantic Ocean.
In its natural state, there were, however, in parts of the Fox River rapids and falls. At Grand Chute there was a rock making a fall two feet perpendicular, and below certain rapids known as the De Pere, the navigation was chanroblesvirtualawlibrary
especially difficult. There were many other similar though less difficult places. All these embarrassed the navigation of early days, but they did not destroy nor even much arrest it. The stream was always used for purposes of trade, including especially the great fur trade, a trade carried on before our Revolution, and when French and British were pursuing their adventurous commerce far into the savage regions of the Northwest. Smith, the historian of Wisconsin, states [Footnote 1] that even so far back as 1718, one of "the great avenues from the St. Lawrence to the Mississippi was by way of Fox and Wisconsin Rivers." In 1763, Marquette and Joliet, French explorers of the source of the Mississippi, followed the line of the two streams mentioned. The stream was then navigated by long, narrow boats, called Durham boats -- vessels from seventy to one hundred feet long and twelve broad, drawing, when loaded, from two to two and a half feet of water -- which men would push with poles or propel by oars or have dragged by horses and mules, sometimes, in very shallow water, wading alongside and pushing the boats onward themselves. At places where progress on the stream was impracticable, the vessel would be unloaded and a "portage" made till the navigator had got beyond the difficult place, and then a reshipment would be made of the merchandise into some other boat beyond or into the same boat, which, unloaded and drawing less water than before, could be got across the place that in a loaded state had stopped it. Arriving at the very source of the Fox River, a "portage" of less than two miles would be made, and the merchandise was on the Wisconsin, and thence it floated to the Mississippi. In May, 1838, a regular line of Durham boats was advertised to run from Green Bay, near Lake Michigan, to the portage at the head of the Fox River.
By the Ordinance of 1787 [Footnote 2] for the government of the Northwest Territory, it was enacted 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."
This clause was substantially enacted in the Constitution of Wisconsin, which provides [Footnote 3] that:
"The river Mississippi and 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 state as to the citizens of the United States, without any tax, impost, or duty therefor."
By the Act of Congress of 1846, [Footnote 4] passed on the admission of Wisconsin as a state into the Union, a quantity of land was granted to the state:
"For the purpose of improving the navigation of the Fox and Wisconsin Rivers, in the Territory of Wisconsin, and of constructing the canal to unite the said rivers at or near the portage."
And it was provided that the:
"Said rivers, when improved, and the said canal, when finished, shall be and forever remain a public highway for the use of the government of the United States, free from any toll or other charge whatever, for the transportation of the mails or for any property of the United States or persons in their service passing upon or along the same."
The State of Wisconsin accepted the grant, and, pursuant to the authority and power vested in the state, a company was incorporated by an Act approved July 6, 1853, for the improvement of the Fox and Wisconsin Rivers. That act vested in the corporation all the rights and privileges granted to the state by the act of Congress. And the improvement company, in carrying out the object of its creation, built dams, locks, and canals in Fox River from Portage City to chanroblesvirtualawlibrary
below De Pere Rapids. The works of this company were on a grand scale, and by them Fox River was changed from its natural condition to an improved thoroughfare, for the use of which all boats were required to pay toll. It became the property of and was exclusively managed by a corporate body, with power to demand and receive tolls from all crafts passing through the locks, not excepting boats enrolled and licensed for coasting trade.
In consequence of the acts of Congress and of the state and of the increase of trade from the Northwest over the Wisconsin River across the portage and upon the Fox River and the lakes, the Fox River was cleared of the obstructions caused by its rapids or falls, and the diff