Opposition Brief — Wisconsin v. Illinois

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Uete, 490U UNIGINAL NUD,O,LU & 44,

— ae

~~ _

INTHE

SUPREME COURT OF THE

i Office Suereme Sours, Ue o-

ORIGINAL JURISDICTIO mgmt

| OCTOBER TERM, 1925 FER 27 1928

STATE OF WISCONSIN, STATE OF WM, R. SIANSEURY

OHIO, STATE OF PENNSYLVANIA |_ - CLERK

AND STATE OF MINNESOTA,

Complainants,

Vv.

STATE ‘OF ILLINOIS AND SANI.-| _ Bill in Equity. -

TARY DISTRICT OF CHICAGO, { Original Jurisdiction.

Defendants. Newbtes

STATE OF MISSOURI, STATE OF ? 7

TENNESSEE, STATE OF #KEN-

TUCKY AND STATE OF LOUIS-

IANA, | 4

Intervening Defendants. | >

BRIEF ON BEHALF OF COMPLAINANTS IN OP ITION

TO MOTION TO DISMISS — .

HERMAN L. EKERN, <

Aitorney General of Wisconsin,

RAYMOND T. JACKSON,

Special Assistant Aitorney General of Wisconsin,

RALPH M. HOYT,

Special Assistant Attorney General of Wisconsin,

CLIFFORD L. HILTON,

Attorney General of Minnesota,

C. C. CRABBE,

Attorney General of Ohio,

. NEWTON D. BAKER,

‘ Special Assistant Attorney General of Ohio,

GEORGE W. WOODRUFF,

Attorney General of a.

PHILLIP WELLS,

_.° Deputy "sce Genova of Penasyieonia,

Mayer Frias Compeny,

Ie:

II.

INDEX

SYNOPSIS

° Page

STATEMENT OF FACTS.

Summary of the principal allegations of the amended

TS SOT a RIN CON er eT: CS

”

The history~of the Sanitary Canal conclusively estab-

lishes that the canal is not now and never has been a

navigation project, but that it is now and always has

been simply a sanitation and power project for the bene-

fit of the Sanitary District of Chicago ..

If. A comparison of the commerce of the Des Plaines and

VI.

VII.

Illinois Rivers with the commerce of the Great Lakes

SY BCCI o..nssenesconecsnessenerenleenssennsesnecens ietels sabe saaiectaededdescoimgiaks

One thousand cubic second feet is the greatest amount

of water which will ever be required for the needs of

navigation upon the Sanitary Canal, Des Plaines and

SNE TNT iF ntasneccinien inseinin salgininevebaseainttladais caps tiato

That the abstraction of the waters of the lakes in the

quantity claimed by the defendants constitutes a sub-

stantial and unreasonable obstructior. to the navigable

capacity of the Great Laxes is an established fact........

There is a well defined divide between the Great Lakes

and Mississippi watersheds ...... vageeee seat nnncuebinammosuanion

The complaint and facts present not only the abstraction

by an upper riparian state of all of the waters of an in-

terstate watercourse: originating within its own borders

but the case of a state, by reversing the flow of that part

of the watercourse within its borders, through the

‘ ° . Page

* *

agency of natural laws, abstracting waters of such

watercourse which originated in lower riparian states

and permanently diverting them from the watershed...... 18

VIII. The imminent national concern which attached and

attaches to the Chicago abstraction arises from the

lowering of the levels of the Great Lakes and not from

the interests of Chicago and IIlinois in obtaining these *

waters for sanitation or power purposes ..................0... 19

IX. The various permits granted by different Secretaries

of War were not in aid of navigation........ repcedenediivenpatnens 19

X. The early acts of Congress were for a summit level

cep LE AE PONT SRE TIE lo BRR POR 21

XI. National economic loss in power development.................. 22

pte

ili

POINTS AND AUTHORATIES oo.ccicccccccccccsecccssscssssseescesssece 23-37

ARGUMENT.

I. THE COMPLAINT PRESENTS A JUSTICIABLE

II.

CONTROVERSY WITHIN THE ORIGINAL JU-

RISDICTION OF fHIS COURT oie.

THE COMPLAINING STATES HAVE SUBSTAN-

TIAL LEGAL INTERESTS WITH CORRES-

PONDING INJURIES INVOLVED IN THIS CON-

TROVERSY WHICH ENTITLE THEM TO MAIN-

TAIN THIS SUIT.

1. The complaining states have a proprietary interest

in the waters of the Great Lakes and connecting waters

within their respective borders, which they have the right

WON GY, WOT aires icinscvsiercciccuhcc se oR

2. The actions of the State of Illinois and its agents,

of which the bill complains, constitute an injury to the

complaining siaies in their quasi-sovereign capacity, whol-

ly distinct from the injuries to their citizens ; and they are

entitled to maintain this suit in this court to vindicate

Quasi-sovereign rights 2.0.0.0... sccesseeeceeseesese iuietdiebeianisitcene

3. The complaining states have a right to maintain

this suit in their private capacities as owners of public

works and public property _...........ccccescccccsesseecseeeeeeooeeceeecs...

4. The complaining states have a standing to maintain

this suit as parens patriae to protect their people................

5. This bill does not seek an academic vindication of

the freedom of commerce but a redress for its injuries in

Siew cmpenclnis. Miata nts ii = Se

Page

6. The bili does. not ask the court to regulate naviga-

tion or to supervise long continuing acts ...........cecceccecceece--.

III. THE UNITED STATES AND SISTER STATES

ARE NOT INDISPENSABLE’ PARTIEG.........: ae

IV. THE BILL OF COMPLAINT IS NOT MULTI-

nth iy RS SOO ITC od PTO AMD

V. THE STATE OF ILLINOIS WAS AND IS WITH-

OUT POWER TO’ APPROPRIATE AND AB-

STRACT THE WATERS OF THE GREAT

LAKES.

1. The common:law of waters obtains in the defend-

ant and -commplaining states 200200... cece cescessssneececseeseeeeees

2. As proprietors of the waters of the Great Lakes

within their borders, the complaining states have a right

to all ‘the waters coming naturally to them, preserved in

_ their navigable capacity and°at their natural level and

condition for :all:uses:and purposes... Revoad

3. An upper state appropriating waters in defiance

of the rights of a lower state will be enjoined. Apply-

ing to Illinois its owraw of waters, her asserted right

+ toabstract the waters.of-the Great Lakes fails........... Siiceone

4. Tilinois, the upper riparian state, not only abstracts

all the water within its own boundaries, but by reversing

the flow of the Chicago river abstracts waters: which

originate in Wisconsinand Michigan and permanently

diverts these waters from the Great Lakes watershed

5: Illmois: legislative actspurporting to authorize ab-

straction of waters from Lake Michigan were wnconstitu-

ne Oe WE oe chbeaepeamiuetianaraseniasiiens

Page

VI. ASSERTING THAT CONGRESS IS WITHOUT

POWER TO AUTHORIZE THE ABSTRACTION

OF ANY WATERS FROM THE GREAT LAKES

WATERSHED FOR ANY PURPOSE, COM-

PLAINANTS ASK AN INJUNCTION ONLY

AGAINST AN ABSTRACTION OF MORE

THAN 500 CUBIC SECOND FEET FOR PRES-

ENT NAVIGATION AND MORE THAN 1000

CUBIC SECOND FEET FOR ANY FUTURE

NAVIGATION. SEE LEGISLATIVE RESOLU-

TIONS IN APPENDIX.

i. Construed in the light of history and the common

law, the constitutional power over navigable waters does

not extend to the abstraction of the waters of one water-

shed for the benefit of another ............. y 81

2. Acts of Congress for improvement of navigation

must be reasonably appropriate to that end, and not for

sewage disposal or power purposes 200... occ ecccceeeeeee. 84

3. If Congress can appropriate these waters in any

amount, it can do so only for the promotion of navigation,

and then only to the extent reasonably necessary therefor 8&7

4. An Act of Congress appropriating the waters of

one or more of the states, to their injury, for the benefit

of another state violates Article I, Section 9, Clause 6,

of the Constitution prohibiting any preference to the

ports of one state over those of another... 89

VII. CONGRESS HAS NEVER AUTHORIZED SUCH

ABSTRACTION OF THE WATERS OF THE

GREAT LAKES AS TO IMPAIR THEIR NAVI-

GABLE CAPACITY.

Page

1. The Act of Congress of March 2, 1827, does not

authorize the abstraction of the waters of the laBes............ 91

2. The permit of the Secretary of War issued March

3, 1925, does not purport to authorize any abstraction of

the waters of the Great Lakes which would injure their

CITE CO nn a es oe 92

3. The Rivers and Harbors Act does not empower the

Secretary of War to authorize any obstruction of the

navigable waters of the United States; and to the extent

that the permit of the Secretary of War is claimed to _

authorize abstraction of the waters of the Great Lakes

in excess of the amount needed for navigation, it would

be clearly unauthorized by said acto. cece. 93

TEMPTS TO AUTHORIZE ABSTRACTION OF

WATERS OF THE GREAT LAKES WITHOUT

REGARD TO THE INJURY TO THEIR NAVI-

GABLE CAPACITY AND NOT TO PROMOTE

NAVIGATION, BUT FOR THE SANITATION

AND POWER DESIRES OF ILLINOIS, IT IS

UNCONSTITUTIONAL AND VOID................ 99

IX. ASSUMING THE PERMITS OF THE SECRE-

TARIES OF WAR TO BE VALID PURSUANT

TO CONGRESSIONAL AUTHORITY FOR THE

ABSTRACTION OF THESE WATERS SO FAR

AS RELATES TO THE NAVIGABLE CAPA-

CITY (WHICH WE DO NOT CONCEDE)

THESE PERMITS ARE NO DEFENSE TO THIS

BELL

XI.

XII.

XIII.

Vii

Page

THE DOCTRINE, THAT IN MATTERS WHERE

THE NATIONAL CONCERN IS IMMINENT

AND DIRECT, THE STATES MAY NOT ACT

AT ALL, EVEN WHEN CONGRESS HAS BEEN

SILENT,-IS NO DEFENSE TO THIS BILL.......

» i

THE BOUNDARY WATERS TREATY OF 1909

IS NO AUTHORITY FOR THE ACT OF THE

DEFENDANTS: ON THE CONTRARY, IT FOR-

BIDS THE ACT 2 ae

THE COMPLAINANTS ARE NOT ESTOPPED

BY THE FORMER PLEADING..................

OTHER TECHNIbAL OBJECTIONS TO THIS

BILL ARE WITHOUT MERIT .................

Vili

CASES CITED

Page

Alabama v. Gulf Power Co., 283 Fed. 606.000.000.000. 35, 100

Amsterdam Knitting Co. v. Dean, 43 N. Y. St. 21, affirmed 56

Bs. ie go Ce 29, 70

Attorney General ex rel. Becker v. Bay Boom W. R. & F. Co.,

Ee Wee a BP I ne ah 36, 104

Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224... 24, 33, 47, 86

Barrett v. Mt. Greenwood C. emctery Association, 159 Ill. 385, 42

ae ig SRR te ie OTe RO aN ile de 29, 69

iilise '¥,. Rmennay, 40 TG a er 29, 69

Briscoe v. Bank of Kentucky, 11 Pet. 257, 9 L. Ed. 709... yale

Burke v. Simonson, 104 Ind. 173, 2 N. E. 309... 29, 70

Burke v. Snively, 208 Ill. 328, 70 N. E. i cmatbaiecie cass is, we ae

Burlington Gas Light Co. v. Burlington, etc. Rwy. Co., 165 U. S.

oaU, 17 Sep. Ce. 399, 409. Ed. Joo * 33, 87

California v. Southern Pacific Co., 157 U. S. 299, 15 Sup. Ct.

ey Oe ie MA Seen ti 27, 63, 65

Canton v. Shock, 66 Ohio St. 19, 63 N. E. 600... 29, 70

Cedar Lake Hotel Co. v. Cedar Lake Hydraulic Co., 79 Wis.

a Oe cag Si Ag Sn eet NAO Cg kc 29, 69

Chicago v. Green, 238 INl..258, 87 N. E. 417... 6

Clark v. Pennsylvania R. R. Co.. 145 Pa. St. 438, 77 Atl.

OP erties rea Cee fe eae bret 29, 70

Cobb v. Commissioners of Lincoln Park, 202 Ill. 427, 67 N. E.

We earonehceiaecouael een een Dy at ee 36, 103

Columbia Salmon Co. v. mire, 5 Alms SIs 36, 105

;

( ix

Page

Columbus and H. Coal & Iron Co. v. Tucker, 48 Ohio St. 41,

CI I ns crs ear Oe 2 heiaipcdiviotmiomsennntionh 29, 70

Dayton v. Commissioners, 128 Ill. 271, 21 N. 2. Cae 29, 69

Dwight v. Hayes, 150 Ill. 237, 37 N. E. 218....-------..20----seeeeseeee-* 29, 69

Economy L. & Power Co. v. U. S., 256 U. S. 113, 41 Sup. Ct.

iat GM. ac tsasincattecranedensnetniewenionsinadipsanead 30, 31, 78, 81

Evans v. Merriweather, 4 Ill. (3 Scam.) 492, 38 Am. Decisions

106 .... ai, Rs SO oO

Georgia v. Tennessee Copper Company, 206 U. S. 230, 27 Sup.

ee. Sek Ss aaeee 23, 25, 26, 39, 49, 50, 51, 55

Gibson v. U. S., 166 U. S. 269, 17 Sup. Ct. 578, 41 L. Ed. 99€.25, 48

Hans v. Lousiana, 134 U. S. 1, 10 Sup. Ct. 504, 33 L. Ed.

Hardin v. Jovdan, 140 U. S. 371, 11 Sup. 808, 35 L. Ed. 159....25, 48

Heckman et al. v. United States, 224 U. S. 413, 32 Sup Ct.

6 (2 S- 28, 67

Hoge v. Eaton, 135 Fed. 411 ......-..---------sseeecesesseseeseeeseeees 24, 30, 48, 74

Holyoke Water Power Co. v. Connecticut River Co., 52 Conn.

570, 22 Blatchf. 131, 20 Fed. 71........ 24, 30, 31, 48, 74, 78, 80

Hubbard v. Fort, 188 Fed. 987..........-. 34, 36, 96, 97, 98, 101, 102, 103

Hudson County Water Co. v. McCarter, 209 U. S. 349, 28

Sup. Ct. 529, 52 L. Ed. 828

24, 25, 30, 31, 48, 52, 53, 71-72, 77, 79

210, 36 L. Ed. 1018 -...................-—--+----------0- 24, 35, 48, 100

llinois Steel Co. v. Bilot, 109 Wis. 418, 84 N. W. 855-....-... .29, 71

—x

Internationai Bridge Co. v. New York, 254 U. S. 126, 41 Sup.

Se AE an RII cen ia ee ee rere 36, 106

Kansas y. Colorado, 185 U. S. 125. 22 Sup. Ct. 552, 46 L. Ed.

Rearend MM al stay Ra 23, 26, 27, 30, 37, 40, 54, 56, 74, 112

Kénsas v. Cologado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed.

DO select ee eee are, ON tac aes 23, 24, 25, 28,

30, 31, 32, 33, 35, 42, 44, 46, 49, 55, 64, 75, 76, 79, 82, 87, 99

Kansas % United States, 204 U. S. 331, 27 Sup. Ct. 388, 51

ag Ee A en A CORAL A ION IL, oe 28, 65

Kansas City So. R. R. Co. v. Kaw Valley Drainage District Co.,

233 U. S. 75, 34 Sup. Ct. 564, 58 L. Ed. 857... 36.108 |

Kawananakoa v. Polyblank, 205 U. S. 349, 27 Sup. 526, 51 \

CE ROD REET CALS na NERD ee 28, 65

Kimberly & Clark Co. v. Hewitt, 79 Wis. 334, 44 N. W. 303 |

Ro ee 29, 69)

Louisiana v. Texas, 176 U. S. 1, 20 Sup. Ct. 251, 44 L. Ed. |

ena Beeote aS atin NS GLAM aD REI 24, 27, 43, 44, 57, 58 |

Lousiville Bridge Co. v. U. S., 242 U.S. 409, 37 Sup. Ct. 158,

Re We te a. ree ae ee eee 34,92 |

McCarter v. Hudson Water Co., 70 N. J. Equity 695..............30, 72

McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248

ROD sei hcentibcomieshianny srabreroteatcadeapibedeea unten ig eke

I ncscnsinaii nt sa esc Sl Ta re shel

Miller vy. Miller, 9 Pa. 74, 49 American Decisions 545............... 29, 70

Minnesota Loan & Trust Co. vy. St. Anthony Falts Water Powtr

Co., 82 Minn. 505, 85 N. W. 520 ..0..-o--ccccsoesccccseseccoeecceocscees... 29, 70

Missouri v. Illinois, 180 U. S. 208, 21 Sup. Ct. 331, 45 L. Ed.

PH cheap anoninrbniadcai st ee es 23, 25, 26, 38, 54, 56

Missouri v. Illinois, 200 U. S. 496, 26 Sup. Ct. 268, 50 L. Ed.

RP sees temusnetar ns ee 23, 27, 42, 60-61

Mobile Transp. Co. v. Mobile, 187 U. S. 479, 239Sup. Ct. 179,

A I cena tne teh ce he 25, 48

a SF RELA RE DOLL OAR PAL SaaS 31, 80

Muhlker v. N. Y. & Harlem R. R. Co., 197 U. S. 544, 25 Sup.

Ar ete SP Dn: SR MD ise ae 33, 87

Murford v. Wardwell, 6 Wall. 423, 18 L. Ed. 756............... 25, 48

New Hampshire v. Louisiana, 108 U. S. 76, 2 Sup. Ct. 176,

OF tak et OO ae orrrerrtrarceemannennnnnnnernen 24, 43, 44

New Jersey v. Sargent, 46 Sup. Ct. 122, 70 L. Ed. 177,

(Advance Sheets) 2.0.0... cccscesssceeeees Liapsnnsdaitisiabesaacapengcsics 35, 100

New York vy, New Jersey, 256 U. S. 296, 41 Sup. Ct. 492, 65

L. Ed. 937........ 23, 25, 26, 28, 33, 36, 42, 49, 54, 56, 64, 88, 106

Norfold, etc. R. Co. v. SutherJand, 105 Va. 345, 55S. E. 465..37, 112

North Dakota v. Minnesota, 263 U. S. 365, 44 Sup. Ct. 138,68

Be OO BE rr 23, 25, 26, 39, 52, 54, 56

N. PacificeR. Ri Co. v. Slaght, 205 U. S. 122, 27 Sup. Ct. 442,

ee ee nue 37, 111

Pe Pir i FO a ae et ee ag 23, 44

sii

Page

Osborn v. United States Bank, 9 Wheat. 738, 6 L. Ed. 204....28, 65

Pennsylvania v. West Virginia, 262 U. S. 553, 43 Sup. Ct. 658,

ft PES” 3S | + 23, 26, 27, 42, 43, 53, 55, 56, 58, 60, 61

Note in 43 Sup. Ct. 658, 669 00... 25, 50

Pennsylvania v. Wheeling Bridge Co., 9 How. 647, 13 L. Ed.

SAR See Aa ee ee eae =

Pennsylvania v. Wheeling Bridge Co., 11 How. 528, 13 L. Ed.

MERELY Es Cis colt nae 26, 55

Pennsylvania v. Wheeling Bridge Company, 13 How. 518, 14

PR chad or .23, 26, 27, 55, 59, 60

Pennsylvania v. Wheeling Bridge Co., 18 How. 421, 15 L. Ed.

ee SEES Sa EEG ae aera PP 26, 33, 42, 55, 89

People v. Nelson, 133 Il. 565, 27 N. E. 217 ............................... 6

Pewaukee v. Savoy, 103 Wis. 271, £9 OW. 456 nsec 29, 71

Pine v. New York, 50 C. C. A. 145, 112 Fed. 98............ 24, 30, 48, 74

Pine v. New York, 185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ed.

pee SEE SES et eS Oe 30, 31, 78, 79

Plumbleigh v. Dawson, 6 Il. (1 Gilman) 544 000. cccccccoeee 29, 69

Pollard v. Hagan, 3 How. 212, 11 L. Ed. 565 oo... ccccccseeeee-oe- 24, 48

Priewe v. Wisconsin State Land and Improvement Co., 93 Wis.

NES RT i a 29, 69

The Propeller Genesee Chief, 12 How. 443, 13 L. Ed. 1058....31, 80

ener create Be OP 28, 67

Rossmillerey. State, 114 Wis. 169, 89 N. W. 839.0... 29, 70

St. Anthony Falls Water Power Co. v. Commissioners, 168

U. S. 349, 18 Sup. Ct. 157, 42 L. Ed. 497.0. nc enneeeene 25, 48

3 Page

Sanitary District of Chicago v. United States, 266 U. S. 405,

45 Sup. Ct. 176, 69 L. Ed. 352....5, 15, 19, 22, 28, 31, 34, 35,

36, 66, 80, 91, 92, 98, 99, 107, 108, 110

Sauer v. City of New York, 206 U. S. 536 27 Sup. Ct. 686, 51

a OO ea pa ee aD $3, 87

Seattle v. Oregon & Washington Rwy. Co., 255 U. S. 56, 41

SD Re a, OP Rae Bs UIE cceractescemndckocsimenccteconciee .24, 35, 45, 100

Shields v. Barrow, 17 How. 130, 15 L. Ed. 158.....0000..000...-...- .27, 63

Shively v. Bowlby, 152 U. S. 1; Sup. Ct. 548, 38 L. Ed. 331..24, 47

South Carolina v. Georgia, 93 U. S. 4, 23 L. Ed. 782...

tet bse ladles beicasat a eetoeplaasitietcabdagmosciesiet 23, 26, 33, 42, 89

Stock v. Jefferson, 114 Mich. 357, 72 N. W. 132 .0...eecsceceeeceeee 29, 70

Strathleven Steamship Co. v. Baulch, 244 Fed. 412..............37, 111

Strobel v. Kerr Salt Co., 164 N. Y. 303, 58 N. E. 142.cccseccsoee 29, 70

Supreme Sitting O. of 1. H. v. Saker, 134 Ind. 293, 33 N. E.

aks BE ie i aseevenciotvsniigllckecuncmmsctotieamstannesininancioasn 37, 112

Thlinket Packing Co. v. Harrison Co., 5 Alaska 471..........0.0-.. 36, 105

Turner v. Roundtree, 30 Ala. 706 ccc. PE Rite wae 37, 11?

U. S. v. Chandler-Durbar Water Power Co., 229 U. S. 53, 33

ae A ge ee ee Ree 21, 34, 80, 93, 101

United States v. Rio Grande Dam & Irrigation Company, 174

U. S. 690, 19 Sup. Ct. 770, 43 L. Ed. 1136 .

suckle baudiscelieammiaedanec tee! 25, 27, 28, 30, 33, 48, 62, 68, 74, 88

United States v. River Rouge Improvement Co., 46 Sup. Ct.

144, 70 L. Ed. 148 (Advance Sheets) -0............ceccccesescesoeee 35, 100

Virginia-Carolina Chemical Co. v. Home Insurance Co., 113

a SS MUG Ren ania AS La Ai

i Xiv

rs Page

Virginia v. West V irginia, 220 U. S. 1, 31 Sup. Ct. 330, 55 L.

i MINE Soi bipintetetiedcca tuna tee EU eG. ele, 37, 112

Western Union Telegraph Co. v. Attorney General of Massa

chusetts, 125 U. S. 530, 8 Sup. Ct. 961, 31 L. Ed. 790....27, 58

Williams v. Bass, 179 Wis. 364, 191 N. W. 499.0000... 29, 69

Williams v. Talladega, 226 U. S. 404, 33 Sup. Ct. 116, 57 L. Ed.

SOUPS cic sence SsssdapdinsacpssinLastepscecdblbenpssstessstiogs msmbtelenecic 27, 58

Wilson v. Hudson County Water Co., 76 N. J. Eq. 543, 76

pee Rccrsac he ee OMA ESSN OS ERE OOS BTR ETN YN 36, 103

Wisconsin v. Duluth, 96 U. S. 379, 24 L. Ed. 668.000.000.000... 23, 43, 44

Wisconsin v. Pelican Insurance Co., 127 U. S. 265, 8 Sup. Ct.

Ry ale MO ee Eee om 23, 43, 44

Woodruff v. North Bloomfield Gravel M ining Co., 18 Fed. 753,

gu enansblanimniibiine tea ab niece eat oe en 33, 35, 85, 99

Wyoming v. Colorado, 259 U. S. 419, 42 Sup. Ct. 552, 66 L.

ic , nna 23, 25, 26, 28, 31, 42, 49, 54, 64, 75, 76, 79

STATUTES, CONSTITUTIONAL PROVISIONS,

SESSION LAWS, ETC.

Page

Ordinance

U. S. Territorial -Odrinance of 1787 .................................. 31, 70, 81

U. S. Constitution

FAT ny I ee ey 33, 35, 89, 100

BRAN Miicrerrsiditonn ping celica Oe eas Sou ak ee 23, 38

U. S. Statutes

I IE a aa tres ea 21

4 «Ee SOE ERC Ep a ee eerie Eas ert 21, 34, 91

30 WEIR. forslitepeeeeAutceasis scnchnc oe teh a 35, 97

; |S. PEAS ARES ROE Ai alae aoeCACeNE Da MCE 34, 93, 94, 95, 96

Illinois Constitution

PU Or Oe ag ee 31, 81

Illinois Session Laws

1 Se PE RE dina re na 6

Illinois Statutes

Starr and Curtis Stats. 1896, SRN OAERY HOR CTS TSE Ra MI A 6

xvi

TEXTS CITED

Page

Me Ne hu, MAME sesprribahas ashes acto eisinc caealensprestostdsouinieeeormaga encanta 37, 111

31 Cyc. 463 See Em ce a SE? 37, 112

Farnham on Waters (1904) Vol. Deccccccccsccceeone 24, 30, 48, 73, 78

Hale, De Partibus Maris ....-.:csccsccececcseceenene Sen 25, 48

uae, oe. senemore (Ai ed.) (1G7S)—.W..ce . 25, 48

SUNG OL. TR CU a st rh aces 25, 48

Hyde on International Law (1922) Vol. Low... cceceeeeeees 30, 78

Moore, History of the Foreshore (3d ed.) (1888)...................- 25, 48

Odgers, Conmmon Law of England Vol. Eecccccceccscccocescesreune 32, 83

Xvii

PUBLIC DOCUMENTS

Page

International Waterway Commission Public Reports, 1905,

St cae eh ERR A EO iE a 21

United States Chief of Engineers Annual Report, 1868 (House

Exec. Doc. No. 1, pt. 2, 40 Cong. 3d Sess., p. 438, 440)...11, 17

United States Chief of Engineers Annual Report, 1879 (House

Exec. Doc. No. 81, 45th Cong. 3d Sess., i: SCE ll

United States Chief of Engineers Annual Report, 1899.00... 16 |

United States Chief of Engineers Annual Report, 1900, pp.

cee Pie en ONES ERT PETC at 16

_Buited States Chief of Engineers Annual Report, 1911 (House

~~ \Doe. 762, 63d Cong. 2d Sess., pp. 101-107)... 12-13

United States Chief of Engineers Annual Report, 1920, p. 95 20

United States Engineer (Major Putman) Report, 1923 p. 66...... 18

United States Department of Commerce, Miscellaneous Series

No. 119, Inland water transportation in the United States,

og SS eae Es Ree Tae oS ae Ea 9

United States House Rivers and Harbors Committee Hearings

(Comm. Doc. 59th Cong. Ist Sess.) ....cccecccccccscse---... | ERs 14

United States Hearings on the nine-foot channel from the Great

Lakes to the Gulf, pursuant to Senate Resolution 411, 67th

Cong. Wh Seve, Vol 29.741 14

United States House Committee Hearings of 1924, p. 105.......... 15

United States Rivers and He: bors Committee Hearings of April

and May, 1924, Part 2, pp. 1800-1820 piel sadetnekdninincsacumais? i) a

United States Rivers and Harbors Committee Hearings (68th

Cong. Ist Sess., pt. 2, pp. 348, 376, Sa | ee 15

XVili

Page

United States Senate Special Committee, 1925, Report of hear-

ings on fine-foot channel from Great Lakes to Gulf, 68th

Cog: 2 Sone, Ya A,

United States House Rivers and Harbors Committee Hearings,

69th Cong. Ist Sess., Jan. 30, 1926, p. 11.....2.......-cececececoseeeees

United States Secretary of War, Decision denying permission to

abstract 10,000 cubic second feet, Jan. 8, 1913.00.00...

United States War Department Statistical Report, 1923..............

United States War Department Report to Congress (House

Doc. 762, 63d Cong. 2d Sees., p. 14)...

Warren Report, August 30, 1919, concurred in November 9,

ray, Oy Coal al Gages ee

xix

APPENDICES

Page

Report of Major Putman to Chief of Engineers............ 115-121

Recomendation of Chief of Engineers bist pro neapitenepabiaa nadiccc kane

Letter of Secretary of War Weeks to Sanitary District..124-125

Potent of Sipe: 3, 1005 5. oe ena 125-128

II.

Wietinee Ranlitiee e 129-132

Minnesota Resolution ............... VASE DDIIL AE 1 92-135

a; CR Raids cs on has eo ee 135-136

Pennsylvania Resolution 220... ..c:c/ceccco0--. 137-138

peew Sek Tiina ee 138-140

pancengees Wencletien rs 140-142

Cnmncia Tcealitiog tae 142-143

IN THE

SUPREME COURT OF THE UNITED STATES

ORIGINAL JURISDICTION

OCTOBER TERM, 1925

‘

STATE OF WISCONSIN, STATE OF

OHIO, STATE OF PENNSYLVANIA

AND STATE OF MINNESOTA,

Complainants,

Vv.

STATE OF ILLINOIS AND SANI-| _ Bill in Equity.

TARY DISTRICT OF CHICAGO, ff Original Jurisdiction.

Defendants. No. 16.

STATE OF MISSOURI, STATE OF

TENNESSEE, STATE OF KEN-

TUCKY AND STATE OF LOUIS- |

IANA,

Intervening Defendants.

BRIEF IN OPPOSITION TO MOTION TO DISMISS THE

« AMENDED BILL OF COMPLAINT

STATEMENT OF FACTS

This case comes on for hearing on a motion by defendants to dis-

miss. This action was originally brought by the State of Wisconsin

in 1922 against the State of Illinois and the Sanitary District of

Chicago. In October, 1925, leave was granted by this court to file

an amended complaint joining the states of Minnesota, Ohio and

Pennsylvania as complainants. On January 4, 1926, the defendant

State of Illinois filed its motion to dismiss and the defendant Sani-

tary District of Chicago filed its answer and motion to dismiss. On

January 25, 1926, the States of Missouri, Tennessee, Kentucky and

Louisiana filed a motion to be admitted as intervening defendants

and to dismiss.

The salient facts set up in the amended complaint and for pres-

ent purposes admitted by the demurrer and motions to dismiss may

be briefly summarized.

The complainants allege injuries to them in their proprietary

Capacities as qguasi-sovereigns, and in their capacities as parens

patriae of their people, resulting from unlawful acts of the defend-

ant State of Illinois and defendant Sanitary District of Chicago.

These injuries consist of a long continued and permanent !ower-

ing of the levels of the Great Lakes and their connecting waters

through the abstraction of the waters of Lake Michigan from the

Great Lakes watershed and their permanent diversion through the

Chicago, Des Plaines and Illinois rivers and the Sanitary Canal into

the Mississippi watershed. This has obstructed the navigable capac-

ity of the Great Lakes and connecting waters and caused large losses

to these states and their people in reducing the carrying capacity of

the large numbers of vessels navigating these waters and in damages

done to their harbors, and in damages to the property rights of

thousands of citizens cf the complainant states and to the proprietary

rights of the complainant states in the waters within their borders.

These injuries also consist of the excessive pollution of the

navigable waters of the Chicago, Des Plaines and Illiaois rivers and

the Sanitary Canal, making navigation thereon dangergus to the

health and lives of the people of the complainant states having the

right to navigate said waters in carrying on a large commerce which

is or could be served by such navigation. ;

The complainant states assert that neither the State of Illinois

nor the United States could legally authorize any abstraction of the

waters of the Great Lakes to be diverted into another watershed for

any purpose, but bring this suit only to enjoin the defendants from

so taking any water in excess of the amount needed fox_navigation

without injury to the navigable capacity of the Great Lakes. The

amount so needed is alleged not to exceed 500 cubic feet per second

eee

—3—

for the present navigation and not to exceed 1,000 cubic feet per

second for any possible future navigation over the Sanitary Canal,

the Chicago, Des Plaines and Illinois rivers.

THE PRINCIPAL ALLEGATIONS OF THE AMENDED

BILL OF COMPLAINT MAY BE SUMMARIZED

AS FOLLOWS:

That the complainants are states of the United States of America.

The various acts of Congress define their boundaries as extending

to the center of the lakes, between such states.

That the complainant states have extensive shore lines along said

lakes with numerous harbors and a large commerce amounting to

many millions of tons annually for each of said states.

That the Sanitary District Canal through which the waters of

Lake Michigan are abstracted was constructed solely for sewage

disposal purposes, pursuant to the legislative acts of the State of

Illinois, beginning with the year 1889, which acts have been so con-

strued by the highest court of the State of Illinois.

That in 1903, the Illinois Legislature authorized the construction

‘and operation by the Sanitary District of an electric power plant

which has been operating since 1907, producing more than 20,000

H. P., and many million dollars of profits to the Sanitary District.

That an underestimate by engineers of the Sanitary District shows

an abstraction of water from Lake Michigan increasing from 2,900

cubic feet per second in 1900 to 7,786 cubic feet per second in 1917,

and that in fact ir 1917, and since, more than, 8,800 cubic feet per

“second have been so abstracted.

That the Great Lakes, excepting Lake Superior and connecting

waters and the St. Lawrence River have been lowered not less than

six inches by such abstraction of water by defendants, and that such

lowering has reduced the possible loading of vessels thereon by at

a me

least six inches, and has reduced their cargo carrying capacity by

many tons, with a resultant increase of freight costs to the people of

complainant states and to the State of Wisconsin in its proprietary

capacity. That the carriage of coal by such vessels constitutes the

principal source of supply of coal for the State of Wisconsin and

its people, that such lowering has lessened the utility of all of the

ports of said lakes and connecting waters of said lakes, and that

the total annual loss due to the lowered carrying capacity of lake

vessels chargeable to the abstraction of such water amounts to many

millions of dollars.

That navigation in the Chicago River has been made so difficult

and dangerous by the swift current created by the abstraction of

this water as to reduce the commerce handled in the Chicago harbor

from between six and eight millions of tons of freight each year

to less than one-third that amount, a large part of which commerce

was between citizens of Wisconsin and citizens of Illinois.

That the State of Illinois asserts and seeks to bar the United

States from control over said canal and to subordinate its use to

sewage disposal and power purposes.

That for the purpose of present navigation over said canal and

the Chicago, Des Plaines and Illinois Rivers, the diversion necessary

does not exceed 500 cubic feet per second, and that the maximum

amount of water so needed to be diverted for the greatest possible

navigation upon said canal and river will never exceed 1,000 cubic

feet per second.

That none of the permits issued by the various Secretaries of

War are or ever have been of any force or effect to authorize a with-

¢rawal of water from Lake Michigan in such quantities as to obstruct

its navigability, and that the defendants have never been authorized

by Congress to divert any water from Lake Michigan.

That the acts of the defendants have caused large pecuniary

losses to the peoples of the complainant states and have violated the

legal rights of the states themselves.

The situation out of wWich this controversy arises has been in the

Pe al

courts so long and has been so recently before this court that the

facts are already quite familiar to the court. We do not agree with

the defendants as to the statements of facts in their briefs nor that

matters set out therein are matters of which this court will take

judicial notice or which are material at this time. Without conceding

anything on these points or considering any statement of facts neces-

sary for this present purpose other than as set out in the amended

complaint, we add for such use as the court may find convenient the

following supplementary matters which are based upon governmental

reports, official documents and other public records.

II.

THE HISTORY OF THE SANITARY CANAL CONCLU-

SIVELY ESTABLISHES THAT THE CANAL IS NOT

NOW AND NEVER HAS BEEN A NAVIGATION

PROJECT, BUT THAT IT IS NOW AND AL-

WAYS HAS BEEN SIMPLY A SANITA-

TION AND POWER PROJECT FOR

THE BENEFIT OF THE SANITARY

DISTRICT OF CHICAGO.

Prior to the decision of this court in the Sanitary Distri:t of

Chicago v. United States, 266 U. S. 405, 45 Sup. Ct. 176, 69 L. Ed.

352, there had never been any serious claim on the part of the de-

fendants Sanitary District and State of Illinois that the Sanitary

Canal was anything other than a sanitation and power project.

When this court in the foregoing case decided that the defendant

had no right to appropriate and abstract the waters of the Great

Lakes-St. Lawrence System for local sanitation and power pur-

poses, the defendant, the Sanitary District of Chicago and the State

of Illinois, took the position in, the instant case, that such canal was

not a sanitation and power project but was a navigation enterprise.

This changed position upon facts which were well known to such

ay ee

defendants at and prior to decision of the Sanitary District case has

an important bearing upon the weight to be given the claims of the

defendants in urging that proposition in a court of equity at this

time.

The Sanitary Canal was opened in January of 1900. Separate

Section 3, Constitution of Illinois 1870 and Starr and Curtis Statutes

1896, page 206, forbade the State of Illinois tu loan its credit or

make appropriations in aid of canals. The necessary effect of this

constitutional provision was applied in Burke v. Snively, 208 Ill.

328, 348, 70 N. E. 327.

The defendant Sanitary District of Chicago was created by an

Act of Illinois of May 29, 1889, entitled “An act to create sanitary

districts, etc.” In Chicago v. Green, 238 Ill. 258, 87 N. E. 417,

the highest court of the State of Illinois in speaking of this act

said: , ,

“The purpose of the act of 1889 was to furnish a common out-

let for the sewage of the incorporated municipalities within the

limits of the district.”

In Peopie v. Nelson, 133 Ill. 565, 27 N. E. 217, it was said:

“A sanitary district is a municioal corporation organized to

secure, preserve and promote the public health.”

From these various acts, decisions and constitutional provisions

it is apparent that the State of Illinois could act only through the

medium of the defendant Sanitary District and that such district

could build and operate a sanitary canal solely as a sanitation project

and not as a canal for the purposes of navigation.

The true purposes of the Sanitary Canal are also shown in an

official memorandum or report issued by the Trustees of the Sani-

tary District in December, 1923, which contains the following state-

ment on page four:

“The Sanitary Project was developed by the City of Chicago

with the cooperation of the State Board of Health of illinois and

aoe. ees

a joint committee of the Illinois General Assembly in the years

1885-1889. To study and report upon the problem Chicago cre-

ated the Drainage and Water Supply Commission consisting of

eminent Civil Engineers. ‘Three methods of the solution of the

problem of disposal of the sewage of the Chicago District were

considered by the Commission: First, the discharge of sewage

into Lake Michigan at one end of the City and the taking of

water supply from the Lake at the other extreme end of thé city;

Second, the disposal of sewage on land by intermittent filtration

over a vast sewage farm (as large as 15,000 acres); Third, the

discharge of sewage into the Des Plaines River by means of a

ship canal, and the resultant disposal by dilution. The third

method, recommended by the Commission, was chosen as the

basis of the Sanitary District Act.

“Thereupon the Sanitary District of Chicago was created by

act of the Illinois State Legislature May 29, 1889, and the validity

of the act was affirmed by the State Supreme Court on June 12,

1890. Its purpose was to provide a Main Channel-or outlet and

necessary adjuncts to divert the sewage of Chicago and adjacent

towns from Lake Michigan, thus protecting the municipal water

supply from contamination by sewage. To dispose of sewage by

dilution and provide an outlet into the Illinois River the act re-

quired that such channel should be made of such size and capacity

as to provide a minimum dilution of 3.33 cubic feet per second for

every 1,000 people.”

While defendant Sanitary District and State of Illinois now at-

tempt to argue that the principal object o¢-the Act of Illinois of 1889

was to provide for the construction of a Ship canal, the reason given

by the Sanitary District in their requests to the War Department for

permission to divert water from the Chicago River into the Des

Plaines River were merely to aid in the disposition of the sewa,e of

Chicago, and to prevent that sewage from entering Lake Michigan

and polluting the water supply of Chicago. In 191i the defendant

Sanitary District applied to Secretary of War Stimson for permis-

sion to increase the withdrawal of water to ten thousand cubic second

feet. In the opinion of Secretary Stimson containing his decision

upon that application, he said:

“The demand for the diversion of this water at Chicago is

based solely upon the needs of that city for sanitation. There is

involved in this case no issue of conflicting claims of navigation.”

And again in that opinion Secretary Stimson says,

“Having reached the conclusion that the proposed diversion of

the waters of Lake Michigan would substantially injure the in-

terests of navigation on the Great Lakes, which it is my legal duty

to protect, it would clearly follow that the present application

should be denied.”

In 1907 the trustees of the defendant Sanitary District, after

their application for a permit to reverse the current of the Calumet

River had been denied, passed a resolution which reads in part as

follows:

“Whereas, heretofore, to-wit: on November 28, 1906, this board

instructed its president to transmit to the Secretary of War an

application for a permit to reverse the flow of said Calumet River

and thereafter, to-wit: On March 14, 1907, the Secretary of

War communicated to the board his refusal to issue such permit ;

“Whereas, this board is advised that it has the right and that

is the duty under the laws of the State of Illinois to construct

said channel, notwithstanding the refusal of the Secretary of

War to issue a permit therefor, for the purpose of furnishing the

proper sanitary method of disposing of the sewage of the territory

and inhabitants contiguous to the said proposed channel and within

the corporate limits of the Sanitary District of Chicagu, and un-

less restrained by a court having jurisdiction of the subject matter

at the instance of the United States Government.”

The testimony of the engineering expert for the proponents of

the Sanitary District before the Illinois Legislative Committee on

April 7, 1887, shows that the main reason for adopting the dilution

method instead of the purification method for the disposal of the

sewage of Chicago was to save some expense. See pp. 1800-1820,

Part 2, Rivers and Harbors Committee Hearing of April and May,

1924,

Ae.

2 } a ER

The foregoing documentary evidence conclusively establishes that

the Sanitary Canal was not constructed for navigation purposes,

but solely for the purpose of disposing of the sewage of the Sanitary

District by dilution methods.

Ill.

A COMPARISON OF THE COMMERCE OF THE DES

| PLAINES AND ILLINOIS RIVERS WITH THE

COMMERCE OF THE GREAT LAKES SYSTEM.

The commerce upon the Sanitary Canal, the Des Plaines River and

the I‘linois River is shown by the official publication of the U. S.

Department of Commerce, 1923, Miscellaneous Series No. 119,

entitled “Inland Water Transportation in the United States.” From

that report it appears that the total volume of freight on the Illinois

River in 1921 was 157,536 tons. The volume of commerce on the

Des Plaines River was much smaller. The volume of commerce on

the Sanitary Canal was approximately 400,000 tons, consisting chiefly

of the removal of rock and debris from along its banks by barges.

From page 67 of the same report it appears that in 1920 the total

volume of freight carried on the Great Lakes was over one hundred

and eleven million tons. The Statistical Report of the War Depart-

ment for the year 1923 shows that of all the waterborne commerce

into and out of and through the United States, approximately twenty-

seven per cent was carried on the Greac Lakes. From the govern-

ment reports it appears that the freightage through the Soo Canal

alone has reached a peak of ninety-two million tons and is nearly

double that of the combined freightage of the Panama and Suez

Canals in their twelve months’ year against the lakes" eight months

season. The Great Lakes perform a ton mile service equivalent to

about twenty-five per cent of the tonnage of all the railroads of the

United States, and carry bulky raw materials such as iron ore, stone,

coal, and grain at a cost not exceeding one-fifth and sometimes as

low as one-tenth of the cost of railway transportation.

The present small commerce upongthe Des Plaines and upper

Illinois Rivers cannot be substantially increased until the completion

of the locks and improvements on these rivers, which, according to

present plans, will not be for two or three years. The engineering

reports hereinafter cited show that an abstraction of less than one

thousand cubic second feet will suffice for the commerce of one

hundred million tons per year, which is immensely greater than any

probable commerce upon the Des Plaines and Illinois Rivers.

IV.

ONE THOUSAND CUBIC SECOND FEET IS THE GREAT-

EST AMOUNT OF WATER WHICH WILL EVER BE

REQUIRED FOR THE NEEDS OF NAVIGATION

UPON THE SANITARY CANAL, DES

PLAINES AND ILLINOIS RIVERS.

Defendants assert that the allegation in the bill of complaint that

the present needs of navigation upon the Des Plaines and Illinois

Rivers do not exceed five hundred cubic second feet of abstraction

and will not with any development of which those waters are cap-

able exceed one thousand cubic second feet, should not be accepted

by this court as a fact, although admitted by their motion to dismiss.

The only argument advanced in support of this contention is that

the complaint does not disclose whether such quantity cf water is

needed for slack water navigation or free water navigation. For

the purpose of this motion it must be considered as a verity that

such an amount is sufficient for any type of navigation of which

these waters are capable. However, 4s bearing upon the truth and

the good faith of the contention, we will state the facts.

With respect to the Des Plaines and upper Illinois Rivers no con-

tention for free water navigation can be made in good faith. From

pase (ee

the end of the drainage canal at Lockport to the surface of the

water at Utica there is a drop of about one hundred and thirty feet

in a distance of sixty-six miles. As a physical fact, this drop demon-

strates that no open river navigation is practical over this distance

or even possible with any degree of safety. (In fact, the defendant

State of Illinois is now constructing five locks averaging about

twenty-six feet lift each to cover this section of the river.) At

Lockport there is a fall of thirty-four feet. Obviously no possible

quantity of water would render free navigation over such a drop

possible. With reference to the lower Illinois from La Salle to its

mouth at Grafton, there is a fall of only about thirgy feet in two

hundred and twenty-four miles. Upon that portion of the Illinois

River open navigation is possible with very small water flow, as any

desirable draft can be obtained in the boat channel by dredging

without the addition of any water to the natural flow of the stream,

and ence secured will be practically permanent. Annual Report of

the Chief of Engineers, 1868, House Executive Document No. 1,

part 2, 40ch Congress, 3d Session, p. 438. A further report August

30, 1878, provided for no diversion of waters, but specifically stated

that “the slack-water system * * * has the advantage in every im-

portant feature.” Annual Report, Chief of Engineers, 1879, House

Executive Document, No. 81, 45th Congress, 3d Session, p. 8.

Since physical obstruction to the upper Illinois and Des Plaines

Rivers demand locks under any system of improvement for navi-

gation purposes, the only water needed from the Great Lakes System

is a sufficient addition to the natural flow in the Des Plaines and

dilinois Rivers to provide for efficient and proper operation of

necessary locks. It is entirely feasible to provide any necessary

capacity in the lower river by dredging, The expense of such

dredging is nominal and when once incurred does not have to be

incurred again. On the other hand, the annual damage tu navigation

on the Great Lakes by an excessive abstraction of waters probably ss...

equals or exceeds the total added cost to be incurred’ but once in the

pie

improvement of the Des Plaines and Illinois Rivers without abstrac-

tion in excess of 1,000 cubic second feet.

The five hundred to one thousand cubic second feet stated to be

the maximum required for navigation, approximaies that required for

the Soo and Welland Canals, where the traffic is greatly in excess

of what could reasonably be expected for the Des Plaines-Illinois

waterway. On the other hand, ¢ diversion of ten thousand cubic

second feet creates a current of such an excessive velocity as to

make navigation difficult and even dangerous. The attempt now

being made by Chicago to establish permanent bridges over the

Chicago River indicates that the people of the Sanitary District are

not chiefly interested in providing for navigation either on the Sani-

tary Canal or along the Illinois and Des Plaines Rivers. The alter-

native Calumet-Sag Channel is ai present of shallow depth and the

only existing proposal to deepen this channel does not contemplate

the deepening of this channel ‘or a number of years. The Chicago

Sa. itary District can, by installing sewage disposal works, as has

been done elsewhere, dispose of all danger of pollution of the lake

by returning only a safe effluent from such disposal works.

The amount of water necessary for navigation purposes upon the

Des Plaines-Illinois waterway was passed upon by the Special Board

on the Waterway from Lockport, Illinois, to the :nouth of the Illinois

River. This board was made up of government engineers under the

chairmanship of General W. H. Bixby, Chief of Engineers. The

report, dated January 23, 1911, was published in the House of

Representatives Document 762, 63d Congress“Séeond Session, pages

101 to 107. We quote from pages 105, 106, 107 as follows:

“The Board considers a bottom wicth of 160 feet in canal and

200 feet in the open river above the mouth of the Illinois River

sufficient for a channel of eight or nine feet available depth. For

safety and ease of navigation the channel should be extended to

11 feet in rock cuts and canals, and the locks should be given 11

feet depth, 80 feet width and 600 feet useful length. With these

lock dimensions three barges carrying about 9,000 tons of freight

may be locked through with their tow-boat. A waterway of these

pe ee

dimensions would have a capacity exceeding 100,000,000 ions per

annum and would accommodate barge tows carrying about nine

times the ordinary train-load of this vicinity. In addition the

vessels using it would be capable of navigating the Ohio and Lowcr

Mississippi Rivers. Such waterway will not require a diversion

of more than 1,000 second feet from Lake Michigan, this amount

would not injuriously lower lake levels nor cause excessive flooding

of land in the Illinois Valley.” (Page 105.)

(Pagé 106.) “For purposes of navigation a diversion from

Lake Michigan of less than 1,000 second feet of water is all that

will be necessary.” (Page 107.) “* * * The claim that more

than 1,000 cubic feet per second is required for purposes of

navigation cannot be maintained.”

The statement that 1,000 cubic second feet is all that could ever be

needed for navigation purposes in this waterway has often been

reinterated. Thus Secretary Stimson in his decision of January 8,

1°13, denying permission to abstract 10,000 cubic second feet said :

“The Chief of Engineers reports that so far as the interests of

navigation alone are concerned, even if we should eventuaily con-

struct a deep waterway from the Great Lakes to the Mississippi

over the route of the sanitary canal, the maximum amount of

water to be diverted from Lake Michigan need actually be not over

000. feet per second, or less than a quarter of the amount already

being used for sanitary purposes in the canal. This estimate is

confirmed by the report of the special board of engineers on the

deep waterway from Lockport, IIl., to the mouth of the Illinois

River, dated January 23, 1911. It is also confirmed by the practi-

cal experience of the great Manchester Ship Canal in England.

From the standpoint of navigation alone in such a waterway too

great a diversion of water would be a distinct injury rather than

a benefit. It would increase the velocity of the current and in-

crease the danger of overflow and damage to adjacent lands.”

Again, in the final report of the special board on the waterway

from Lockport to the mouth of the Illinois River (House Document

762, 63d Congress, 2d Session, p. 14) dated December 16, 1913, it -

is ‘said :

a. a

‘But the Board reiterates that a diversion exceeding 1,000 sec-

ond feet is not necessary fur navigation purposes alone in the

Illinois River, and that an added discharge will produce a slight

and inadequate effect on the Mississippi River.”

The report just quoted is the last official report of the War De-

partment to Congress upon this subject, but Gereral Taylor, the

present Chief of Engineers, when called before a senate committee

on January 20, 1925, and questioned as to the amount of diversion

necessary for the navigation of a nine-foot channel down the Illinois

River, referred to the various reports that we have quoted above, and

said with reference to the original Bixby report:

“It has been investigated a number of times, and I think the

conclusions reached by that board have always been concurred in.”

(Vol. 2, p. 741, Hearings on the Nine-Foot Channel from the

Great Lakes to the Gulf, Pursuant to Senate Resolution 411, 67th

Congress, 4th Session. )

The abstractions of the defendant Sanitary District in excess of

1,000 cubic second feet have introduced a current into the Chicago

River which has made it practically impossible for large boats to

navigate that river, and has virtually driven all commerce from the

tiver. This is clearly brought out by the defendants’ own engineer,

Isham Randolph, in testimony given before the House Rivers and

Harbors Committee. (See last paragraph of Document No. 6 of

that Committee, 59th Congress, Ist Session.) Thus it is/apparent

that not only is 1,000 cubic second feet all that will ever be needed

for navigation purposes, but that the excessive amount now being

diverted is an actual injury to navigation.

The recently completed locks and dams, and the locks and dams

under construction and those contemplated for the Des Plaines and

Illinois Rivers, answer conclusively any argument that there can be

any free water navigation with the abstraction of any possible

amount/ of water from Lake Michigan.

—

--15—

¥.

THAT THE ABSTRACTION OF THE WATERS OF THE

LAKES IN THE QUANTITY CLAIMED BY THE DE-

FENDANTS CONSTITUTES A SUBSTANTIAL

AND UNREASONABLE OBSTRUCTION TO

THE NAVIGABLE CAPACITY OF THE

GREAT LAKES IS AN ESTABLISHED

FACT.

The levels of the lakes have been lowered approximately six

inches by the Chicago abstraction. Chicago Sanitary District v.

United States, 266 U.S. 405, 45 Sup. Ct. 176, 69 L. Ed. 352. This

has resulted in a reduction of the carrying capacity of the Great

Lake freighters and in a loss in that connection amounting to at

least three million dollars per year. House Committee Hearings of

1924, page 105; Hearings Rivers and Harbors Committee, House of

Representatives, 69th Congress, First Session Jan. 30, 1926, page

11. It has resulted in damages to docks, piers, and other property,

and has required additional expense in dredging. Both the federal

government and the Canadian government have expended large sums

to improve the navigation of the Great Lakes. The loss in load for

big lake freight carriers has been from eighty to eighty-eight short

tons per inch of draft, Record Volume 3, 1245, Sanitary District

of Chicago v. United States. These losses have increased as the

commerce has grown. The increased extent of the damage appears

from the testimony in the River and Harbors Committee hearings,

68th Congress, first Session, on Illinois and Mississippi Rivers and

diversion of water from Lake Michigan, Part 2, pp. 348, 376 and

392-431. See also Senate Special Committee in 1925 Report on

Hearings on Nine Foot Channel from Great Lakes to the Gulf, 68th

Congress, Second Session, pursuant to Senate Resolution 411, 67th

Congress, Fourth Session, in volumef%, pages 134, 230.

Assuming that there is a lowering of the levels of the Great

Lakes from naturai causes or any causes in addition to the lowering

snl.

caused by the abstraction of the defendant Sanitary District, that

is no justificationfor its unlawful abstractions. If nature has

caused a lowering of the levels of the lakes, then the abstraction of

the defendant Sanitary District causing an additional lowering is

so much the more serious.

The contribution to the lowering of the lakes by the deepening

of the St. Clair River is practically nothing, as shown by the annual

report of the Chief of Engineers for 1900. A contrary allegation

appearing on page 92 of Answer of Sanitary District can only be

based upon the Wisner Report of Oct. 12, 1911 to Board of Trustees

of Sanitary District. Mr. Wisner in his report on the Deep Water-

way on pages 280 and 297 stated that he had learned that the

deepening of the St. Clair Channel had lowered Lake Huron about

one foot, the basis of that report being the probability of such a

lowering as stated in the report of the Chief of Engineers for 1899.

However, Colonel Leydecker, in charge of the United States Lake

Survey, stated in the annual report of the Chief of Engineers for

1900 that he much regretted that this incorrect statement had ap-

peared in his previous year’s report, and that a long and thorough

investigation during the intervening year, of which the results were

published on pages 5320 to 5401 of the Annual Report of the Chief

of Engineers for 1900, showed conclusively that the lowering of

lake Huron could not have been produced ‘by any changes in the

St. Clair and Detroit Rivers.

However, it needs ow argument to show,that a lowering of the

lake level by six inches constitutes an unreasonable and substantial

obstruction to navigation.

VI.

THERE IS A WELL DEFINED DIVIDE BETWEEN THE

GREAT LAKES AND MISSISSIPPI WATERSHEDS.

Some attempt has been made by the defendants to@imply that

there is not and never has been any well defined divide between the

0 —————— =< —s

ae. ame

Mississippi and Great Lakes watersheds and that the waters of the

Great Lakes System at times run into and mingled with the waters

of the Mississippi system. There is a well defined divide of at

least eight feet in height between the two watersheds. For legal

purposes, it can make no difference whether the divide is eight feet

or eight thousand feet in height. General Wilson, in the Annual

Report of Chief of Engineers of 1868, at page 440, says:

“About thirteen miles southwest of the mouth of the Chicago

River is a depression of a mile or more in width * * * through

which a part of the waters of the ™es Plaines River in times of

flood flow into the lake.”

General Wilson goes on to state that the surface of Lake Michigan

is between eight and fourteen feet below the summit of this de-

pression. Lake Michigan has never been known to rise to such a

height. Consequently it is clear that in a state of nature all of the

waters of the Chicago and Calumet Rivers always flowed into Lake

Michigan, that the waters flowing into this depression in times of

flood were a part of the Upper Des Plaines River waters flowing

out of the Illinois or Mississippi basin into the Great Lakes basin,

and that none of the waters of the Chicago River ever flowed into

the Mississippi basin.

pa ee

VII.

THE COMPLAINT AND FACTS PRESENT NOT ONLY

THE ABSTRACTION BY AN UPPER RIPARIAN STATE

OF ALL OF THE WATERS OF AN INTERSTATE WAT-

ERCOURSE ORIGINATING WITHIN ITS OWN BORD-

ERS BUT THE CASE OF A STATE, BY REVERSING

THE FLOW OF THAT PART OF THE WATERCOURSE

WITHIN ITS BORDERS, THROUGH THE AGENCY OF

NATURAL LAWS, ABSTRACTING WATERS OF SUCH

WATERCOURSE WHICH ORIGINATED IN LOWER

RIPARIAN STATES AND PERMANENTLY DIVERTING

THEM FROM THE WATERSHED.

The defendant is claiming the right to abstract and appropriate

the waters of the Chicago and Calumet plus eighty-five hundred

cubic second feet from Lake Michigan, plus the domestic pumpage

from Lake Michigan, which amounts to an additional 1,200 cubic

second feet and which, instead of being returned to the lake, is

diverted into the Sanitary Canal. (See Report of Major Putnam,

Appendix I, to this brief.) Iilinois has less than seven per cent of

the total area of the lake, and it contributes hardly three per cent of

the total rainfall in the Lake Michigan basin or of the outflow of

water from Lake Michigan and Lake Huron. Report of Major

Putnam, November 1, 1923, page 66, as distributed by the Secre-

tary of War. Prior reports have estimated the low water flow of

the Chicago River at from six hundred to eight hundred cubic second

feet. The flow of the Des Plaines is little larger. There are no

other streams of appreciable size flowing into the lake in Illinois.

It is obvious that the State of Illinois and the Chicago Sanitary

District are asserting the right not only to appropriate all of the

waters of an interstate watercourse originating within the borders

of the State of Illinois, but through the agency of natural laws to

appropriate and abstract the waters of that watercourse originating

in the lower riparian states.

, >

aad

oe G...-

- VHIL.

THE IMMINENT NATIONAL CONCERN WHICH AT-

TACHED AND ATTACHES TO THE CHICAGO AB-

_ STRACTION ARISES FROM THE LOWERING OF THE

LEVELS OF THE GREAT LAKES AND NOT FROM THE

INTERESTS OF CHICAGO AND ILLINOIS IN OBTAIN-

ING THESE WATERS FOR SANITATION OR POWER

PURPOSES.

It is obvious that the matter of national concern in connection

with this abstraction is the interference by a state with the natura!

levels of the Great Lakes-St. Lawrence Waterways. Sanitary Dis-

trict of Chicago v. United States, 266 U. S. 405, 46 Sup. Ct. 176,

69 L. Ed. 352. The United States generally has no interest in the

sanitation needs, real or imaginary, or the power desires of Chicago

or Illinois, sc long as they do not interfere with the rights of others.

The defendants attempt to give their acts the status of an imminent

national concern because their acts through the operation of natural

laws affect a wholly different matter which was and is an object of

such national concern. .

IX.

THE VARIOUS PERMITS GRANTED BY DIFFERENT

SECRETARIES OF WAR WERE NOT IN AID

OF NAVIGATION.

A casual reading of the applications for various permits requested

by the Sanitary District of Chicago, the decisions of the various

secretaries of war, and the various permits actually issued discloses

conclusively that such permits were not only not granted in aid of

navigation but were reluctantly given in any degree because of the

fact that they were injurious to navigation. In the letter of Secre-

—

tary of War Weeks to the President of the Board of Trustees of the

Sanitary District of Chicago accompanying the permit under which

the defendants now claim, and bearing date March 3, 1925, it is

said :

“This department has always held and continues to hold that

the taking of an excess amount of water for sanitation at Chicago

does affect navigation on the Great Lakes adversely, and that this

diversion of water from Lake Michigan should be reduced to rea-

sonable limits with utmost dispatch.” See Appendix I to this

’ brief. .

In the recommendation of General Taylor, Chief of Engineers,

upon which the permit of March 3, 1925 is based, he states in com-

menting upon one of the conditions attached to that permit as fol-

lows:

“And the proposed construction is the first stage in a programme

which will permit the ultimate reduction of the water diverted to

4,167 cubic feet per second or lower if treatment plants are in-

stalled.”

Again, General Taylor states in his recommendation as follows:

“It is, of course, highly desirable that the excessive diversion

_of water from Lake Michigan be reduced to reasonable limits with

the utmost dispatch. For humanitarian reasons, it is impractical

to make. the desired reductions instantaneously * * *,”

‘

In the Warren report of August 30, 1919 as concurred in No-

vember 9, 1920 by the Chief of Engineers in the Annual Report of

the Chief of Engineers for 1920, at page 95, it is said: ~

“If conditions could be restored to those existing in 1890, and

the city of Chicago should ask permission to divert water for use

in such a sewage disposal system as they now have, the request

would and should be refused. It would undoubtedly appear that

the benefits to be obtained would not be commensurate with the

damage which would be caused. If the question were to be de-

—, ro

cided solely on the basis of the most econouacal use of the waters

of the Great Lakes the solution would involve restriction of the

division to the amount required for purposes of navigation, and

adoption of other methods of sewage disposal.”

From all the documents relating to the various permits issued by

the Secretary of War for different diversions by the defendants and

particularly the present permit of March 3, 1925, it is obvious that

such permits were not in aid of navigation but were given merely

1s a modus vivendi of handling a situation in which the defendant

Sanitary District had wilfully placed the people of Chicago.

».

ing

THE EARLY ACTS OF CONGRESS WERE FOR A SUMMIT

LEVEL CANAL.

The acts of Congress of 1822 and 1827 provided merely for a

summit level canal, which of course did not contemplate or au-

thorize any abstractions from Lake Michigan. Moreover, these

acts had no relation to the present canal. The Boundary Waters

Treaty of 1909 had and has no connection with the Sanitary Canal.

Claim is made that the Boundary Waters Treaty authorizes the

Sanitary Canal abstraction. At the time this treaty was made the

federal government was maintaining suit to enjoin the illegal acts

of the defendant Sanitary District. Chicago Sanitary District. v.

United States, 266 U. S. 405, 46 Sup. Ct. 176, 69 L. Ed. 352. De-

fendants refer to preliminary reports which were not embodied in

the treaty. The only diversions which were considered as the treaty

was actually made were with reference to power developments al-

ready in existence or under completion around Niagra Falls. The

figures show that the computations were based upon the capacities

of these plants without reference to the Chicago abstraction. In-

ternational Waterway Commission Public Reports 1905, 1906,

1907. _ Moreover only legal diversions could be recognized.

a ;

Under a construction of the facts most favorable to the defendant’s

contention no diversion in excess of 4,167 cubic second feet could

have been authorized. The federal government has given a practical

construction to the treaty to the effect that it did not authorize the

claimed right of abstraction of these waters by the defendant Sani-

tary District. This is conclusively shown by the fact that the

‘federal government successfully maintained a suit to prevent such

abstraction as is now claimed as a matter of right under the treaty.

Sanitary District of Chicago v. United States, 266 U. S. 405, 46

Sup. Ct. 176, 69 L. Ed. 352. A axis

XI.

NATIONAL ECONOMIC LOSS IN POWER

DEVELOPMENT.

It appears from the testimony in Sanitary District Chicago Vv.

United States, 266 U. S. 405, 46 Sup. Ct. 176, 69 L. Ed. 352, that

the diversion of ten thousand cubic second feet of water at Chicago

is capable of producing about thirty thousand horsepower of electric

energy at Lockport, although the average production has been about

twenty thousand horse-power. The greatest possible development of

power from this source, from Lake Michigan to the Mississi: i

River, will not exceed eighty thousand horsepower. As against this,

engineers have computed that this ten thousand cubic second feet of

water, if permitted to flow through its natural channels down the

Niagara River and into the St. Lawrence would produce not less

than five hundred thousand horsepower of electric energy. The

mere statement of these facts is sufficient to disclose the immense

economic loss caused by the Chicago abstraction to the people of the

United States and Canada, in the way of development of electric

power.

os —

ee ee

a. Ss

POINTS AND AUTHORITIES.

THE COMPLAINT PRESENTS A JUSTICIABLE CON-

TROVERSY WITHIN THE ORIGINAL JURIS-

TION OF THIS COURT.

Constitution of the United States, Article III, Section 2.

Missouri V. Illinois, 180 U. S. 208, 241, 21 Sup. Ct. 331, 45 L. Ed.

497.

Georgia v. Tennessee Copper Co., 206 U. S. 230, 237, 27 Sup. Ct.

618, 51 L. Ed. 1038. ;

North Dakota v. Minnesota, 263 U. S. 365, 373, 44 Sup. Ct. 138,

68 L. Ed. 342.

Kansas v. Colorado, 206 U. S. 46, 97-98, 27 Sup. Ct. 655, 51 L. Ed.

356...

Kansas v. Colorado, 185 U. S. 125, 22 Sup. Ct. 552, 46 L. Ed. 838.

Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 14 L. Ed. 249.

Wyoming v. Colorado, 259 U. S. 419, 42 Sup. Ct. 552, 66 L. Ed.

999.

Missouri v. Illinois, 200 U. S. 496, 26 Sup. Ct. 268, 50 L. Ed. 572.

So. Carolinia v. Georgia, 93 U. S., 4, 23 L. Ed. 782.

New York v. New Jersey, 256 U. S. 296, 41 Sup. Ct. 492, 65 L. Ed.

937. |

Pennsylvania v. West Virginia, 262 U. S. 553, 591, 43 Sup. Ct.

658, 67 L. Ed. 1117.

Wisconsin v. Duluth, 96 U. S. 379, 24 L. Ed. €58.

Wisconsin v. Pelican Insurance Co., 127 U. S. 265, 8 Sup. Ct. 1370,

32 L. Ed. 239. ;

Oklahoma v. A. T. & S. F. Co., 220 U. S. 277, 31 Sup. Ct. 434, 55

L. Ed. 465.

on en

New Hampshire v. Lousiana, 108 U. S. 76, 2 Sup. Ct. 176, 27

L. Ed. 656.

Hans v. Louisiana, 134 U. S. 1, 10 Sup. Ct. 504, 33 L. Ed. 842.

].ouistana v. Texas, 176 U.S. 1, 20 Sup. Ct. 251, 44 L. Ed. 347.

Il.

THE COMPLAINING ‘STATES HAVE SUBSTANTIAL

LEGAL INTERESTS WITH CORRESPONDING IN-

JURIES INVOLVED IN THIJS CONTROVERSY /

WHICH ENTITLE THEM TO MAINTAIN

THIS SUIT.

1. The complaining states have a proprietary interest in the

waters of the Great Lakes and connecting waters within their re-

spective borders, which they have the right and duty to protect.

Martin v. Waddell, 16 Peters 367, 410, 10 L. Ed. 997.

Port of Seattle v. Oregon & Washington Rwy. Co., 255 U. S. 56,

41 Sup. Ct. 237, 65 L. Ed. 500. ,

Parney v. Keokuk, 94 U. S. 324, 338, 24 L. Ed. 224.

Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956.

McCready v. Virginia, 94 U. S. 391, 394, 24 L. Ed. 248.

Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331.

Pollard v. Hagan, 3 How. 212, 11 L. Ed. 565. |

Manchester v. Mass., 139 U. S. 240, 11 Sup. Ct. 559, 35 L. Ed. 159.

Ill. Cent. Rwy. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36

_ L. Ed. 1018.

Hudson County Water Co. v. McCarter, 209 U. S. 349, 28 Sup. Ct.

529, 52 L. Ed. 828.

Hoge v. Eaton, 135 Fed. 411, 414.

Farnham on Waters, (1904) Vol. 1, pp. 29, 602.

Holyoke Water Power Co. v. Conn. River Co., 20 Fed. 71.

Pine v. New York, 112 Fed. 98.

ham

/ —25—

U. S. v. Rio Grande Dam & Irrig. Co., 174 U. S. 690, 19 Sup. Ct.

770, 43 L. Ed. 1136. ;

Moore, History of The Foreshore (3d ed.) (1888), 370-413.

Hargrave’s Law Tracts (1787) pp. 11-12, 25-36.

Hall, The Seashore, (2d ed.) (1875) pp. 1-9.

Hale, De Partibus Maris, 84-89.

Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 35. Ed. 159.

Mumford v. Wardwell, 6 Wall. 423, 18 L. Ed. 756.

St. Anthony Falls Water Power Co. v. Commissioners, 168 U. S.

349, 18 Sup. Ct. 157, 42 L. Ed. 497.

Mobile Transp. Co. v. Mobile, 187 U. S. 479, 23 Sup. Ct. 179, 47

L. Ed. 266.

Ctbson v. U. S., 166 U. S. 269, 17 Sup. Ct. 578, 41 L. Ed. 996.

Georgia v. Tennessee Copper Company, 206 U. S. 230, 27 Sup. Ct.

618, 51 L. Ed. 1038.

Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 342.

Wyoming v. Colorado, 259 U. S. 419, 42 Sup. Ct. 552, 66 L. Ed.

999,

New York v. New Jersey, 256 U. S. 296, 41 Sup. Ct. 492, 65

L. Ed. 937.

Missouri v. Illinois, 180 U. S. 208, 21 Sup. Ct. 331; 45 L. Ed. 497.

Pennsylvania v. West Virginia, note in 43 Sup. Ct. 658, 669.

2. The actions of the State of Illinois and its agents, of which

the bill complains, constitute an injury to the complaining states in

their quasi-sovereign capacity, wholly distinct from the injuries to

their citizens; and they are entitled to maintain this suit in this

court to vindicate quasi-sovereign rights.

Georgia v. Tennessee Copper Company, 206 U. ‘Ss. 230, 27 Sup.

Ct. 618, 51 L. Ed. 1038.

Hudson’ Water Company v. McCarter, 209 U. S. 349, 355, 357, 28

Sup. Ct. 529, 52 L. Ed. 828.

North Dakota v. Minnesota, 263 U. S. 365, 44 Sup. Ct. 138, 139,

68 L. Ed. 342.

= es

Pennsylvania v. West Virginia, 262 U. S. 553, 592, 43 Sup. Ct. 658,

67 L. Ed. 1117.

New York v. New Jersey, 256 U. S. 296, 494, 41 Sup. Ct. 492, 65

L. Ed. 937.

North Dakota v. M innesota, 263 U. S. 365, 374, 44 Sup. Ct. 138, 68

L. Ed. 342. |

Missouri v. Illinois, 180 U. S. 208, 21 Sup. Ct. 331, 45 L. Ed. 497.

Kansas v. Colorado, 185 U. S. 125, 22 Sup. Ct. 552, 46 L. Ed. 838.

Wyoming v. Colorado, 259 U. S. 419, 42 Sup. Ct. 552, 66 L. Ed.

999

Pennsylvania v. Wheeling & B. Bridge Co., 9 How. 647, 13 L. Ed. ~

294, 11 How. 528, 13 L. Ed. 799, 13 How. 518, 14 L. Ed. 249,

18 How. 421, 15 L. Ed. 435.

_ South Carolina v. Georgia, 93 U. S. 4, 23 L. Ed. 782.

3. The complaining states have a right to maintain this suit in

their private capacities as owners of public works and public prop-

erty.

Pennsylvania v. Wheeling Bridge Co., 13 How. 518, i4 L. Ed. 249.

Pennsylvania v. West Virginia, 262 U. S. 553, 43 Sup. Ct. 658, 67

L. Ed. 1117. :

Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956.

Georgia v. Tennessee Copper Co., 206 U. S. 230, 27 Sup. Ct. 618,

51 L. Ed. 1038.

4. The complaining states have a standing to maintain this suit

as parens patriae to protect their people.

Missouri v. Illinois, 180 U. S. 208, 21 Sup. Ct. 33645 L. Ed. 497.

North Dakota v. Minnesota, 263 U. S. 365, 375-376, 44 Sup. Ct. 138,

68 L. Ed. 342.

New York v. New Jersey, 256 U. S. 296, 41 Sup. Ct. 492, 65 L. Ed.

937. on

Pennsyivania v. West V ‘rginia, 262 U. S. 553, 43 Sup. Ct. 658, 67

L. Ed. 1117.

Kansas v. Colorado, 185 U. S. 125, 22 Sup. Ct. 552, 46 L. Ed. 838.

5. While a state may not maintain an action solely to vindicate

the freedom of commerce in the role of a mere volunteer, where the

action of another state violating the freedom of commerce inflicts

special injury on the state in its proprietary or quasi-sovereign capa-

city, Or as parens patriae of its people, it can maintain an action to

enjoin such act, not as an academic vindication of the freedom of

commerce but as a redress of it injuries in the capacities napet.

Louisiana v. Texas, 176 U. S. 1, 20 Sup. Ct. 251, 44 L. Ed. 347.

Western Union Telegraph Coinpany v. Attorney Generel of Massa-

chusetts, 125 U. S. 530, 8 Sup. Ct. 961, 31 L. Ed. 790.

Williams v. Talladega, 226 U. S. 404, 415, 416, 33 Sup. Ct. 116,

57 L. Ed. 275.

Pemrsylvania v. West Virginia, 262 U. S. 553, 591, 43 Sup. Ct. 658,

67 L. Ed. 1117.

Pennsylvania v. Wheeling Bridge Company, 13 How. 518, 578,

14 L. Ed. 249.

a issouri v. Illinois, 200 U. S 496, 26 Sup. Ct. 268, 50 L. Ed. 572.

6. The bill does not ask the court to regulate navigation or to

supervise long continuing acts.

United States v. Rio Grande Dam & Irrigation Company, 174 U. S.

706, 19 Sup. Ct. 770, 43 L. Ed. 1136.

III.

THE UNITED STATES AND SISTER STATES ARE NOT

INDISPENSABLE PARTIES.

State of California v. Southern Pacific C ompany, 157 U. S. 229, 249,

15 Sup. Ct. 591; 39 L. Ed. 683.

Shields v. Barrow, 17 How. 130, 139, 15 L. Ed. 158.

—28—

Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956.

New York v. New Jersey, 256 U. S. 296, 41 Sup. Ct. 492, 65 L. Ed.

937.

W’yoming v. Colorado, 259 U. S. 419, 42 Sup. Ct. 552, 66 L. Ed.

999.

Kawananakoa v. Poly Blank, 205 U. S. 349, 27 Sup. Ct. 526, 51

L. Ed. 834.

Kansas v. United States, 204 U. S. 331- 341, 27 Sup. Ct. 388, 57

L. Ed. 510.

Mechanics Bank v. Seton, 1 Pet. 229, 306, 7 L. Ed. 152.

Osborn v. United States Bank, 9 Wheat. 7 38, 6 L. Ed. 204.

Sanitary District of Chicago v. United States, 266 U. S. 405, 431,

45 Sup. Ct. 176, 69 L. Ed. 352.

IV.

THE BILL OF COMPLAINT IS NOT MULTIFARIOUS

Heckman et al. v. United States, 224 U. S. 413, 448, 32 Sup. Ct.

424, 56 L. Ed. 820.

Risley v, Utica, 173 Federal 502.

Virginia-Carclina Chemical Co. v. Home Insurance Co., 113 Fed. 1.

THE STATE OF ILLINOIS WAS AND IS WITHOUT POW-

ER TO APPROPRIATE AND ABSTRACT THE WA-

TERS OF THE GREAT LAKES AND CONNECTING

WATERS IN DEFIANCE OF RIGHTS OF THE

COMPLAINING STATES.

1. The ¢.mmon law of waters has been generally adopted in the

United States and obtains in the defendant and complaining states.

United States v. Rio Grande Dam & Irrigation Co., 174 U. S. 690,

Canton v. Schock, 66 Ohio St. 19, 63 N. E. 600.

Burke v. Simonson, 104 Ind. 173, 2 N. E. 309.

Stock v. Jefferson, 114 Mich. 357, 72 N. W. 132.

Amsterdam Knitting Co. v. Dean, 43 N. Y. St. 21, affirmed 56

herders, the complaining states have a right to the natural flow of

—

702, 19 Sup. Ct.-770, 774, 43 L. Ed. 1136.

Kimberly & Clark Co. v. Hewitt, 79 Wis. 334, 337, 44 N. W. 303.

Priewe v. Wisconsin State Land and Improvement Co., 93 Wis. 534,

67 N. W. 918.

Cedar Lake Hotel Co. v. Cedar Lake Hydraulic Co., 79 Wis. 297,

48 N. W. 371.

Wiliams v. Bass, 179 Wis. 364, 191 N. W. 499.

Evans v. Merriweather, 4 Ill. (3 Scam.) 492, 38 Am. Decisions 106.

Barrett v. Mt. Greenwood Cemetery Association, 159 Il. 385, 42

N. E. 891.

Village of Dwight v. Hayes, 150 Ill. 237, 37 N. E. 218.

Plumleigh v. Dawson, 6 Il. (1 Gilman) 544.

Dayton v. Commissioners, 128 Ill. 271, 21 N. E. 198.

Bliss v. Kennedy, 43 Ill. 67.

Minnesota Loan & Trust Co. v. St. Anthony Falls Water Power C G.,

82 Minn. 505, 85 N. W. 520, 523.

Miller v. Miller, 9 Pa. 74, 49 American Decisions 545.

Clark v. Pennsylvania R. R. Co., 145 Pa. St. 438, 77 Atl. 989.

Columbus and H. Coal & Iron Co. v. Tucker, 48 Ohio St. 41, 57,

26 N. E. 630.

Mansfield v. Balliett, 65 Ohio St. 451, 63 N. E. 86, 58 L. R.A. 628,

633.

N. E. 757, 162 N. Y. 278.

Strobel v. Kerr Salt Co., 164 N. Y. 303, 58 N. E. 142.

Rossmiller v. State, 114 Wis. 169, 186, 89 N. W. 839.

Illinois Steel Co. v. Bilot, 109 Wis. 418, 425, 426, 84 N. W. 855.

Pewaukee v. Savoy, 103 Wis. 271, 274, 79 N. W. 426.

2. As proprietors of the waters of the Great Lakes within their

aatatnariinetion ee

; — =

the waters in such watershed and to all the waters coming naturally

to them, to the end that the waters of the Great Lakes shall be pre-

served in their navigable capacity and at their natural level and con-

dition for all uses and purposes.

Hudson County Water Co. vy. McCarter, 209 U. S. 349, 356, 28

Sup. Ct. 529, 52 L. Ed. 828

McCarter v. The Hudson Water Co., 70 N. J. Equity 695, 718-719,

Farnham on Waters (1904) Vol. 1, p. 29,

Hoge v. Eaton, 135 Fed. 411, 414,

Holyoke Water Power Co. Vv. Connecticut River Co., 52 Conn. 570,

22 Blatchf. 131, 20 Fed. 71.

Pine v. New York, 50 C. C. A. 145, 112 Fed. 9. 8

Kansas v. Colo., 185 U. S. 125, 22 Sup. Ct. 552, 46 L. Ed. 838.

U.S. v. Rio Grande, 174 U. S. 690, 19 Sup. Ct. 770, 43 L. Ed. 1136.

3. An upper state through which flows or on which borders an

interstate stream oF watercourse, cannot appropriate the waters

thereof in defiance of the tights of a lower state; such appropri-

ation will be enjoined by the court; and in determining the fair use

of such interstate waters, the upper state cannot complain if its

rights are measured by its own law of waters. Applying that rule,

as the most favorable to Illinois which she could possibly demand,

her asserted right to abstract the waters of the Great Lakes fails.

Kansas v. Colo., 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956.

Wyoming v. Colorado, 259 U. S. 419, 466, 42 Sup. Ct. 552, 66

L. Ed. 660.

Hudson County Water Company v. McCarter, 209 U. S. 349, 356,

28 Sup. Ct. 529, 52 L. Ed. 928

_Pine v. New York, 185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ea. 820.

Economy Light and Pr. Co. v. U. S., 256 U. S. 113, 41 Sup. Ct. 409,

65 L. Ed. 847.

Farnham on Waters, Vol. 1, page 59,

Hyde on International Law (1922) Vol. 1, pp. 315-316.

Holyoke Water Power Co. v. Conn. River Co., 20 Fed. 71.

—3]—.

4. Since a state has no power to abstract all of the waters of an

interstate watercourse in defiance of lower riparian states, clearly

Illinois has no right to not only abstract all.of the waters of such

% watercourse within its own boundaries, but by reversing the flow

of that part of the watercourse within its borders, to abstract

waters of such waterccurse which originate in lower riparian states

and permanently divert them from the watershed.

Kansas v. Colorado, 206 U. S. 117, 27 Sup. Ct. 655, 46 L. Ed. &38.

Wyoming v. Colorado, 259 U. S. 419, 42 Sup. Ct. 552, 66 L. Ed.

660.

Pine v. New York, 185 U. S. 93, 22 Sup. Ct. 519, 46 L. Ed. 820.

Hudson County Water Co. v. McCarter, 209 U. S. 349, 28 Sup. Ct.

529, 52 L. Ed. 828,

Holyoke Water Power Co. v. Connecticut River Co., 20 Fed.’ 71,

5. The various acts of the Illinois Legislature purporting to

authorize the Sanitary District of Chicago to abstract waters from

lake Michigan were unconstitutional and void.

These acts assumed to control and appropriate the waters of a

national and international waterway.

Moore v. American Transportation Co., 24 Howard 1, 16 L. Ed.

674. ,

The Propeller Genesee Chief, 12 Howard 443, 13 L. Ed. 1058, /

U.S. v. Chandler-Dunber Water Power Co., <29 U. S. 53, 33 Sup.

Ct. 667, 57 L. Ed. 1063.

Sanitary District of Chicago v. United States, 266 U. S. 405, 426.

45 Sup. Ct. 176, 69 L. Ed. 352.

Rurke v. Snively, 208 Il. 328, 70 N. E. 327.

Separate Section 3, Constitution of Illinois, 1870.

Ordinance of 1787.

Economy L. & Power Co. v. U. S., 256 U. S. 113, 41 Sup. Ct. 409,

65 L. Ed. 847.

VI.

IT IS NOT CONSIDERED THAT CONGRESS HAS POWER

TO AUTHORIZE THE ABSTRACTION OF THE WA.

TERS OF THE GREAT LAKES FROM THAT WATER.

SHED AS A FEDERAL ACT, FOR ANY PURPOSE.

COMPLAINANTS, HOWEVER, IN THIS ACTION, DO

NOT NOW ASK AN INJUNCTION AGAINST ANY AB.

STRACTION REASONABLY NECESSARY FOR NAVI.

GATION PURPOSES WHICH WILL NOT BE IN EX.

CESS OF 500 CUBIC SECOND FEET AT PRESENT, OR

EVER IN EXCESS OF 1,000 CUBIC SECOND FEET—THE

ATTITUDE OF THE COMPLAINING STATES BEING

EXPLAINED BY LEGISLATIVE RESOLUTIONS AP.

PEARING AS APPENDICES TO THIS BRIEF.

1. The constitutional power over navigable waters construed in

the light of history and the common law, does not extend to the

abstraction of the waters of one watershed for the benefit of an-

other.

Kansas v. Colorado, 206 U. S. 46, 94-95, 27 Sup. Ct. 655, 51 L. Ed.

956.

Cdgers, Common Law of England, Vol. I, pp. 590-594.

2. In any event, the acts of Congress for improvement of navi-

gation must be reasonably appropriate to that end. The acts of

Congress in contro! and improvernent of navigation under the com-

merce clause of the federal constitution must be reasonably ap-

propriate to the ends of navigation and not arbitrary or capricious

or for any other purpose, such as the sanitation needs, real or

imaginary, or the power desires of another state or city. It cannot,

under the guise of the power to regulate interstate Commerce, arbi-

trarily destroy the rights of riparian owners or the proprietary rights

of littoral states without any object not really related to navigation.

a .

Woodruff v. North Bloomfield Gravel Mining Co., 18 Fed. 753, 778,

779. ’

Barney v. Keokuk, 94 U. S. 324, 342, 24 L. Ed. 224.

Burlington Gas Light Co. v. Burlington, etc. Rwy. Co., 165 U. S.

370, 17 Sup. Ct. 359, 41 L. Ed. 749.

Muhlker v. N. Y. & Harlem R. R. Co., 197 U. S. 544, 25 Sup. Ct.

522, 4° L. Ed. 872. .

Sauer v. City of New York, 206 U. S. 536, 27 Sup. Ct. 686, 51

L. Ed. 1176.

3. If Congress can appropriate these waters in any amount, it

can do so only for the promotion of navigation, and then only to

the extent reasonably necessary therefor; and the court will enjoin

abstractions admittedly in excess thereof.

Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956.

New York v. New J.rsey, 265 U. S. 296, 41 Sup. Ct. 492, 65 L. Ed.

937.

U.S. v. Rio Grande Dam & Irrigation Co., 174 U. S. 690, 19 Sup.

Ct. 770, 43 L. Ed. 1136.

4. If such an appropriation oi the waters of one or more of the

states, to their injury, were otherwise valid, the act would still violate

Article I, Section 9, Clause 6 of the federal constitution.

Art. I, Sec. 9, Clause 6, U. S. Constitution.

Pennsylvania v. Wheeling Bridge Co., 18 How. 421, 15 L. Ed. 435.

So. Caroling v. Georgia, 93 U. S. 4, 13, 23 L. Ed. 782.

VII.

ASSUMING THAT CONGRESS COULD AUTHORIZE

SUCH AN ABSTRACTION OF THE WATERS OF THE

GREAT LAKES AS TO IMPAIR THEIR NAVIGA-

BLE CAPACITY, IT HAS NEVER DONE SO.

1. The Act of Congress of March 2. 1827, does not authorize

the abstraction of the waters of the lakes.

4U. S. Stats. at L. 234.

The Sanitary District of Chicago v. U. S., 266 U. S. 405, 45 Sup.

Ct. 176, 69 L. Ed. 352.

2. The permit of the Secretary of War issued March 3, 1925,

does not purport to authorize any abstraction of the waters pf the

Great Lakes which would injure their navigable capacity.

Louisville Bridge Co. v. U. §., 242 U. S. 409, 37 Sup. Ct. 1%, 61

L. Ed. 395.

3.0: Chandler-Dunbar Water Power Co., 229 U. S. 53, 33 Sup.

Ct. 667, 57 L. Ed. 1063.

War is claimed to authorize obstruction of the waters of the Great

Takes in excess of the amount needed for navigation, it would be

‘clearly unauthorized by said act.

Section 10 of the Rivers and Harbors Act of March 3, 1899 (30

Stats. at L. 1151).

Hubbard v. Fort, 188 Fed. 987, 992, 993. 996-997, 998-999.

Sanitary District of Chicago v. United States, 266 U. S. 405, 431.

69 L. Ed. 352.

—35—

VIII.

IF THE RIVERS AND HARBORS ACT ATTEMPTS TO

AUTHORIZE ABSTRACTION OF WATERS OF THE

GREAT LAKES WITHOUT REGARD TO THE INJURY

TO THEIR NAVIGABLE CAPACITY AND NOT TO PRO-

MOTE NAVIGATION, BUT FOR THE SANITATION

AND POWER DESIRES OF ILLINOIS, IT IS UNCON-

STITUTIONAL AND VOID.

Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956.

Woodruff v. North Bloomfield Gravel Mining Co., 18 Fed. 753, 778.

Senitary District of Chicago v. United States, 226 U. S. 405, 431.

45 Sup. Ct. 176, 69 L. Ed. 352.

United States v. River Rouge Improvement Co., 46 Sup. Ct. 144,

70 L. Ed. 148. |

Illinois Central Rwy. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110,

36 L. Ed. 1018.

gas of Seattle v. Oregon Rwy. Co., 255 U. S. 56, 41 Sup Ct. 237,

5 L. Ed. 500.

Alabama v. Gulf Power Co., 283 Fed. 606.

New Jersey v. Sargent, 46 Sup. Ct. 122, 70 L. Ed. 177 (Advance

Sheets ).

Art. I. Sec. 9, Clause 6, U. S. Constitution.

IX.

ASSUMING THE PERMITS CF THE SECRETARIES OF

WAR TO BE VALID PURSUANT TO CONGRESSIONAL

AUTHORITY FOR THE ABSTRACTION OF THESE

WATERS SO FAR AS RELATES TO THE OBSTRUC-

TIGN OF NAVIGABLE CAPACITY (WHICH WE DO

NOT CONCEDE), THESE PERMITS ARE NO DEFENSE

TO THIS BILL.

30 U. S. Stats. at L. 1121.

United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53,

33 Sup. Ct. 667, 57 L. Ed. 1063.

Hubbard v. Fort, 188 Fed. 987, 999,

Cobb y. Commissioners of Lincoln Park, 202 Ill. 427, 439-440, 67

N.E. 5.

Wilson v. Hudson County Water Co., 76 N. J. Eq. 543, 558, 76 Atl. |

560.

Attorney General ex rel. Becker v. Bay Boom W. R. & F.C 0., 172 |

Wis. 363, 376, 178 N.W. 569.

Thlinket Packing Co. v. Harrison C 0., 5 Alaska 471.

Columbia Salmon Co. y. Berg, 5 Alaska 538,

New York v. New Jersey, 256 U.S. 296, 41 Sup. Ct. 492, 65 L. Ed.

937. "4

International Bridge Co. v. New York, 254 U. S. 126, 132, 41 Sup. .

Ct. 56, 65 L. Ed. 176,

THE DOCTRINE, THAT IN MATTERS WHERE THE NA-

TIONAL CONCERN IS IMMINENT AND DIRECT, THE

STATES MAY NOT ACT AT ALL, EVEN WHEN CON-

GRESS HAS BEEN SILENT, IS NO DEFENSE TO THIS

BILL.

Sanitary District of Chicago v. United States, 266 U. S. 405, 426,

45 Sup. Ct. 176, 69 L.Ed. 352

Kansas City So. R. R. Co. v. Kaw Valley Drainage District Co., 233

U. S. 75, 79, 34 Sup. Ct. 564, $8 L. Ed. 857,

x1 | |

THE BOUNDARY WATERS TREATY OF 19099 IS NO,

AUTHORITY FOR THE ACT OF THE DEFENDANTS:

ON THE CONTRARY, IT FORBIDS THE

ACT |

Sanitary District of Chicago v. United § tates, 266 U.S. 405, 45 Sup.

Ct. 176, 69 L. Ed. 352. 1

XII.

THE COMPLAINANTS ARE NOT ESTOPPED BY THE

FORMER PLEADING

N. Pacific R. R. Co. vy. Slaght,-205 U. S. 122, 27-Sup. Ct. 442, 51

L. Ed. 738.

Strathleven Steamship Co, v. Baulch, 244 Fed. 412.

21 C. J. 1234,

XIII.

OTHER TECHNICAL OBJECTIONS TO THIS BILL ARE

WITHOUT MERIT

Supreme Sitting O. of I. H. v. Baker, 134 Ind. 293, 33 N.E. 1128,

20 L. R. A. 210. | *.

Norfold, ete. R. Co. v. Sutherland, 105 Va. 545, 55 S. E. 456.

31 Cyc. 463. x

Turner v. Roundtree, 30 Ala. 706.

Briscoe v. Bank of Kentucky, 11 Peters, 257, 9 L. Ed. 709.

Kansas v. Colorado, 185 U. S. 125, 22 Sup. Ct: 552, 46 L. Ed. 838.

Virginia v. West Virginia, 220 U. S. 1, 31 Sup. Ct. 330.'5§ L. Ed.

353, 357. :

ARGUMENT

THE COMPLAINT PRESENTS A JUSTICIABLE CON-:

TROVERSY WITHIN THE ORIGINAL JURIS-

DICTION OF THIS COURT.

The pertinent provision of the constitution is Section 2 of Article

III of the Constitution of the United States, which, so far as being

material, reads as follows:

“The judicial Power shall extend to all Cases, in Law and

Equity, arising under this Constitution, the Laws of the United

States, * * * to Controversies between two or more states ;—be-

tween a State and Citizens of another State; * * *,

“In ali Cases * * * in which a State shall be Party, the supreme

Court shall have original Jurisdiction. In all the other Cases

before mentioned, the supreme”Court shall have appellate Juris-

diction, both as to Law and Fact. with such Exceptions, and

under such Regulations as the Congress shall make.”

This court has laid down the rule generally with respect to original

jurisdiction of actions between states of the Union that wherever a

controversy betw-en states is of such a nature that, if the states

wefe independent, the controversy would become the subject of

diplomatic representations with the right to resort to force in the

event of a failure cf diplomatic representations, the case is one which

is justicable in this court in its original jurisdiction. The original

jurisdiction of this court in such matters was intended to take the

place of the right of one state of the Union to vindicate its wrongs

at the hands of another state by negotiation and force, which rights

were surrendered by the states upon the adoption of the federal

constitution.

In Missouri v. Illinois, 180 U. S. 208, 241, 21 Sup. Ct. 331, 45

L. Ed. 497, this court said:

“An inspection of the bill discloses that the nature of the injury

Somplained of is such that an adequate remedy can only be found

i —

‘

—39—

in this court at the suit of the state of Missouri. It is true that no

question of boundary is involved, nor of direct property rights be-

longing to the complainant state. But it must surely be conceded

that, if the health and comfort of the inhabitants of a state are

threatened, the state is the proper party to represent and defend

them. If Missouri were an independent and sovereign state, all

must admit that she could seek a remedy by negotiation, and, that

failing, by force. Diplomatic powers and the right to make war

having been surrendered to the general government, it was to be

expected that upon the latcer would be devolved the duty of pro-

viding a remedy arg! that remedy, we think, is found in the con-

stitutional provisions we are considering.

“The allegations of the bill plainiy present such a case. The

health and comfort of the large communities inhabiting those parts

of the state situated on the Mississippi River are not alone con-

cerned, but contagious and typhoidal diseases introduced in the

river communities may spread themselves throughout the territory

of the state. Moreover, substantial impairment of the health and

rosperity of the towns and cities of the state situated on the

Mississippi River, including its commercial metropolis, would, in-

juriously affect the entire state,

“That suits brought by individuals, each for personal injuries,

threatened or received, would be wholly inadequate and dispro-

portionate remedies, requires no argument.”

In Georgia v. Tennessee Copper Co., 206 U. S. 230, 237, 27 Sup.

Ct. 618, 51 L. Ed. 1038, this court said:

“When the states by their union made the forcible abatement of

outside nuisances impossible to each, they did not thereby agree to

submit to whatever might be done. They did not renounce the

possibility of making reasonable demands on the ground of their

still remaining quasi-sovereign interests; and the alternative to

force is a suit in this court.”

In North Dakota v. Minnesota, 263 U. S. 365, 373, 44 Sup. Ct.

138, 68 L. Ed. 342, this court in discussing its orginal jurisdiction

in controversies between states of the Union, said:

“The jurisdiction is therefore limited generally to disputes which,

between states entirely independent, might be properly the subject

ee ees ermine

. —40—

of diplomatic adjustment. They must be suits ‘by a state for an°

injury to it in ifs capacity of quasi-sovereign. “In that capacity

the state has an interest independent of and Aekind the titles of

its citizens, in all the earth and air of its domain,’ ”

In Kansas vy. Colorado, 185 U. S. 125, 22 Sup. Ct. 552, 46 L. Ed.

838, this court passed upon a demurrer to the complainant charging

the state of Colorado with appropriation of waters of an interstate

river in violation of the rights of the state of Kansas and its citizens

and praying for injunctive relief against such appropriation of

waters of the interstate water course. In discussing the justicable

character of that suit at page 140, the court said:

—

“Undoubtedly as remarked by Mr. Justice Bradley in Hans y.

Louisiana, 134 U. S. 1, 15, the Constitution made some things

justicable, ‘which were not known as such at the common law;

such, for example, as controversies between states as to boundary

lines, and other questions admitting of judicial solution,’ And as

the remedies resorted to by independent states for the determina-

tion of controversies raised by collision between them were with-

drawn from the states by the Constitution, a wide range of mat-

ters, susceptible of adjustment, and not purely political in their "

nature, was made justicable by that instrument.”

Again at page 145 it was said:

“Without subjecting the bill to minute criticism, we think its

averments sufficient to present the question as to the power of one 4

state of the Union to wholly deprive another of the benefit of

water from a river rising in the former and, by nature, flowing

into and through the latter, and that, therefore, this court, speak-

ing broadly, has jurisdiction.

“We do not pause to consider the scope of the relief which it

might be possible to accord on such a bill. Doubtless the specific

prayers of this bill are in many respects open to objection, but

there is a prayer for general relief, and under that, such appro-

priate decree as the facts might be found to justify, could be

entered, if consistent with the case made by. the bill, and not in-

consistent with the specific prayers in whole or in part, if that

je,

sll

were also essential. Tayloe v. Merchants’ Insurance Company,

9 How. 390, 406; Daniell, Ch. Pr. (4th Am. ed.) 380.”

The court then took the broad ground that the technicalities of

the pleading which obtained in ordinary suits between private par-

ties had no relation to controversies, practically international~in

character, stripped the controversy of all technicalities, brushed

- aside all defects in the bill and found that since there, was a robust

controversy between two states, the court would sit as an interna-

tional tribunal and hear the controversy without even attempting a

close analysis of the bill to discover whether or not it contained im-

perfections or inadequacies of statement.

At page 146, it was said:

“Sitting, as it were, as an international, as well as a domestic

tribunal, we apply Federal law, state law, and international law,

as the exigencies of the particular case may demand, and we are

unwilling, in this case, to proceed on the mere technical admissions

made by the demurrer. Nor do we regard it as necessary, what-

ever imperfections a close analysis of the pending bill may disclose,

to compel its amendment at this stage of the litigation. We think

Proof shou!d be made as to the * * * circumstances, a variation in

which might induce the court to either grant, modify, or deny the

oy sought or any part thereof.”

The complaint relates to the equitable use of interstate waters lying

partl \n the complaining states and partly in the defendant State

of Illinois. It relates to the alleged right of the State of Illinois to

appropriate and abstract the waters of am interstate stream or water-

course to the injury of the complaining states, which are lower

riparian states upon such interstate stream or watercourse. It re-

quires no argument to demonstrate that such a claim of right upon

the part of the State of I!linois and action on the part of that state

in pursuance of such an asserted right to the injury of the various

interests of the complaining states in the waters vt the interstate

Stream or watercourse constituting the Great Lakes-St. Lawrence

System creates a controversy between the compiaining states and the

42...

State of Illinois, which, if such States were independent, would give

rise to diplomatic negotiation between such States with the right to

resort to force in the event of the failure of amicable adjustment.

In Kansas vy. Colorado, 206 U. S. 46, 97-98, 27 Sup. Ct. 655, 51

L. Ed. 956, this court said:

“One cardinal rule, underlying all the relations of the States

to each other, is that of equality of right. Each state stands on

the same level with all the rest. It can impose its own legislation

on no ove of the others, and is bound to yield its own views to

none. Yet, whenever, as in the case of Missouri v. Illinois, supra,

the action of one state reaches, through the agency of natural

laws, into the territory of another State, the question of the extent

and the limitations of the rights of the two states becomes a matter

of justiciable dispute between them, and this court is called upon

to settle that dispute in such a way as will recognize the equal

rights of both and at the same time establish justice between

them.”

In this connection we also invite the attention of the court to the

following cases:

Pennsylvania vy. Wheeling Bridge Co., 13 How. 518, 14 L,

Ed. 249;

Wyoming ¥. Colorado, 259 U. S. 419, 42 Sup: Ct. 552, 66

L. Ed. 999;

Missouri v. Illinois, 200 U. S. 496, 26 Sup. Ct. 268, 50 L. Ed.

572;

So. Carolina v. Georgia, 93 U. S. 4, 23 L. Ea. 782;

New: York. v. New. Jersey-256.U. S. 296, 41 Sup. Ct. 492,

65 L. Ed. 937; /

Pennsylvania vy. West Virginia, 262 U. S. 553, 591, 43 Sup.

Ct. 658, 67 L. Ed. ny.

In:all of these cases the right of a state to maintain an original

— ae

—43—

the question whether there are rights asserted by the. compiaining

states with corresponding injuries which entitle them to maintain

this suit as real parties in interest, rather than in the role of volun-

teers.

However, before passing from this general question of the scope

of ‘the jurisdiction of this court in original suits to which states arc

parties, we wish to notice briefly the cases relied upon by the de-

fendants as-establishing ‘that ‘the court is without jurisdiction of this

controversy. The cases-which are relied upon by the defendants in

this connection are as follows:

Wisconsin v. Duluth, 96 U. S. 379, 24 L. Ed. 668;

Wisconsin v. Pelican Insurance Co., 127 U. S. 265, 8 Sup.

Ct. 1370, 32 L. Ed. 239;

Oklahoma v. A. T. & S. F. Cd., 220 U. S. 27, 31 Sup. ‘Ct.

434, 55 L. Ed. 4655. .

New Hampshire v. Louisiana, 108 U. S. 76, 2 Sup. Ct. 176, =:

27 L. Ed. 656;

Hans v. Louisiana, 134 U. S. 1, 10 Sup. Ct. 504, 33 L. Ea.

842;

Lousiana v. Texas, 176 U. S. 1, 20 Sup. Ct. 251, 44 L. Ed.

347.

The claim that these cases are authority for the denial of juris-

diction in this suit cr even that they have any pertinent relation to

the maintenance of the suit is perhaps best answered in :the language

of this court. In Pennsylvania v. West Virginia, 262 U. S. 553,

592,-43 Sup. Ct. 658, 67 L. Ed. 1117, this court in respect to-a

similar subject, said:

“The defendant State relies on such cases as New Hampshire

v. Louisiana, 108 U. S. 76; Louisiana v. Texas, 176 | SE

Kansas v. United States, 204 U. S. 331; Oklahoma vy. Atchison,

Topeka & Santa Fe Rwy. Co., 220 U. S. 277, and ‘Texas v. Inter-

state Commerce Commission, 258 U. S. 158, 162, but the facts on

which they turned, as the opinions show, were so widely different

from those here that they are not in point.”

ene” ee

Nevertheless, we will briefly comment on the cases as follows:

In Wisconsin v. Duluth, 96 U. S. 379, 24 L. Ed. 668, this court

assumed jurisdiction, but denied relief because the bill was without

equity.

In Wisconsin v. Pelican Insurance Co., 127 U. S. 265, 8 Sup. Ct.

1370, 32 L. Ed. 239, this court assumed jurisdiction but denied re-

lief upon the merits because it was an attempt to enforce extrater-

ritorially the penal laws of the plaintiff state. The same situation

exists in Oklahoma v. A. T. & S. F. Co., 220 U. S. 277, 31 Sup. Ct.

434, 55 L. Ed. 465. That such was the effect of the decisions in

those cases has been heretofore stated by this court. Kansas v.

Colorado, 206 U. S. 46, 83, 27 Sup. Ct. 655, 51 L. Ed. 956. The

cases of New Hampshire y. Lousiana, supra, and Hans v. Lousiana,

Supra, were cases which on the fatts amounted to suits by private

individuals against one of the states of the Union in contravention

of the 11th Amendment to the Constitution of the United States,

forbidding the institution of a suit by any private person against

another state of the Union. The decision in Louisiana v. Texas, 176

U. S. 1, 20 Sup. Ct. 251, 44 L. Ed. 347, was clearly explained and

its lack of application to a suit such a this definitely stated in the

opinion of the court in Kansas v. C olorado, 206 U. S. 46, 27 Sup. Ct.

655, 51 L. Ed. 956: However, it is a sufficient commentary upon

the alleged application of the decision of that case to the instant suit,

to state that under the construction of the pleadings and facts adopt-

ed by this court, Lousiana was attempting to maintain a suit merely

as a volunteer for the vindication of the freedom of interstate com-

merce. It requires no argument to demonstrate that upon such a

State of facts the complaining state would present no interest in the

suit which would entitle it to maintain the same without any regard

to the nature of the controversy, since this court will not sit for the

Purpose of determining a question which, as to the complainant, is

merely academic, involving no right of such compiainant.

—H5—

II,

THE COMPLAINING STATES HAVE SUBSTANTIAL

LEGAL INTERESTS WITH CORRESPONDING IN-

JURIES INVOLVED IN THIS CONTROVERSY

WHICH ENTITLE THEM TO MAINTAIN

THIS SUIT.

l. The complaining states have a proprietary interest in the waters

of the Great Lakes and connecting waters within their respec-"

tive borders, which they have~the right and duty to protect.

It is a well established principle of law that the states in their

quasi-sovereign capacities are the owners of all the public waters

and the submerged lands within their respective borders. The

original states possessed these Proprietary rights at the time of the

adoption of the federal constitution and their rights were not sur-

rendered to the federal government but were retained in full vigor

and effect, subject only to the paramount right of congress to regulate

the navigable waters for the Promoiion of navigation and interstate

commerce. All subsequent states of the Union upon admission to

Statehood acquired the same rights in the waters and submerged

lands within their domains as existed, and still exist in the Original

States of the Union.

_In touching upon this right in the case of Martin vy. Waddell, 16

- Weters 367, 410, 10 L. Ed. 997, the court said:

“* * *When the Revolution took place, the people of each state

became themselves sovereign; and in that character held the ab-

solute right to all their navigable waters, and the soils under them

for their own common use, subject only to the rights since sur-

rendered by the Constitution to the general government.”

In the case of Port of Seattle v. Oregon & Washington Rwy. Co.,

255 U. S. 56, 41 Sup. Ct. 237, 65 L. Ed. 500, this court in discussing

ies:

the proprietary rights of a state in the waters and submerged lands

within its borders, said:

“The right-of the United States in the navigable waters within

the several states is limited to the control thereof for purposes of

navigation. Subject to that right, Washington became, upon its

organization as a state, the owner of the navigable waters within

its boundaries and of the land under the same. (Weber v. Board

of Harbor Com., 18 Wall. 57, 21 L. Ed. 798.) By section one of

article 17 of its Constitution, the state asserted its ownership in

the bed and shore ‘up to and including the line of ordinary high

tide in waters where the tide ebbs and flows.’ The extent of the

state's ownership of the land is more accurately defined by the

decision of the highest court, as being the land below high-water

mark, or the meander line, whichever of these lines is the lower.

The character of the state’s ownership in the land and in the waters

is the full proprietary right. The state, being the absolute owner

of the tide lands and of the waters over them, is free in conveyi

tide lands either to grant with them rights in the adjoining water

area or to completely withhold all such rights.”

Again, in Barney v. Keokuk, 94 U. 3. 324, 338, 24 L. Ed. 224, this

court. said:

“And since this court, in the case of The Genesee Chief v. Fitz-

hugh [12 How. 443, 13 L. Ed. 1058], has delnrcd that the Great

Lakes and other navigable waters of the country, above as well

as below the flow of the tide are, in the strictest sense, entitled

to the denomination of navigable waters, and amenable to the

admiralty jurisdiction, there seems to be no sound reason for

adhering to the old rule as to the Proprietorship of the beds and

shores of such waters. It properly belongs to the states by their

inherent sovereignity, and the United States has wisely abstained

from extending (if it could extend) its survey and grarts beyond

the limits of high water.”

This citation was quoted with approval by this court in Kansas v.

Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956.

Again, in McCready y. Virginia, 94 U.S. 391, 394, 24 L. Ed. 248,

this court said:

“The principle has long been settled in this court, that each

: \ —47—

‘

State owns the beds of all tide-waters within its jurisdiction, un-

less they have been granted away. Pollard’s Lessee y. Hagan,

3 How. 212; Smith v. Maryland, 18 How. 74; Mumford v. Ward-

well, 6 Wall. 436; Weber v. Harbor Commissioners, 18 Wall. 66.

In like manner, the States own the tide-waters themselves, and

the fish in them, so far as they are capable of ownership while

running. For this purpose the State represents its people, and

the ownership is that of the people in their united sovereignty.

Martin v. Waddell, 16 Pet. 410. The title thus held is subject

to. the paramount right of navigation, the regulation of which, in

respect to foreign and inter-state commerce, has been granted to

the United States.”

In that case it was further stated that any states upon admission

to the Union acquired the: same: rights in the navigable waters and

submerged lands as were and are held by the: original: states.

In Snively v. Bowlby, 152 U.S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331,

the court quoted Martin v. Waddell, supra, with appreval to the

effect that when the revolution took place, the people of each state

became themselves sovereign, and in that connection held their ab-

solute right to all navigable waters and the soils under them for

. their common use, subject only to the rights subsequently surrendered

by ‘the Constitution to the general government. The court further

pointed out that by common law both the title and the: dominion of

the sea and of the rivers and arms thereof. where the-tides ebbed and

flowed; and all lands below the high wate. mark within the jurisdic-

tion of the Crown of England, were in the King; that upon the

American: Revolution, all the rights of the Crown and Parliament

in such waters and submerged lands vested in the several states.

That such rights in the waters and submerged lands are not limited

to tidal waters, but extend to all navigable wate.s of the United

States, is pointed out in the opinion of this court in Barney v. Keo-

kuk, supra.

Other cases and texts which establish and define the proprietary

rights of the states of the Union in their quasi-sovereign capacities

— 42.

in the public waters thereof, and the submerged lands within their

‘lomains, are as follows:

Pollard vy. Hagan, 3 How. 212, 11 L. Ed. 565;

Manchester vy. Mass., 139 U. S. 240. 1] Sup. Ct. 559, 35

L. Ed. 159;

Hl. Cent. Rwy. Co. v. Tilinois, 146 U. S. 387, 13 Sup. Ct. 110,

36 L. Ed. 1048;

Hudson County Water Co. v. McCarter, 209 U. S. 349, 28

Sup. Ct. 529, 52 L. Ed. 828;

Hoge v. Eaton, 135 Fed. 411, 414:

Farnham on Waters, (1904) Vol. 1, pp. 29, 602;

Holyoke Water Power Co. v. Conn. River Co., 20 Fed. 71;

Pine v. New York, 112 Fed. 98;

U. S. v. Rio Grande Dam & Irrig. Co., 174 U.S. 690, 19

Sup. Ct. 770, 43 L. Ed. 1136;

Moore, History of the Foreshore (3d ed.) (1888), 370-413;

Hargrave’s Law Tracts, (1787), pp. 11-12, 25-36;

Hall, The Seashore, (2d ed.) (1875) pp. 1-9;

Hale De Partibus Maris, 84-89;

Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 35 L., Rd.

159;

Mumford v. Wardwell, 6 Wall. 423, 18 L. Ed. 756;

St. Anthony Falls Water Power Co. v. Commissioners, 168

U. S. 349, 18 Sup. Ct. 157, 42 L. Ed. 497;

Mobile Transp. Co. v. Mobile, 187 U. S. 479, 23 Sup. Ct. 179,

47 L. Ed. 266;

Gibson v. U. S., 166 U. S. 269, 17 Sup. Ct. 578, 41 L. Ed.

996.

Since these complaining states under the authorities hereinbefore

cited have the full proprietary right in the navigable waters within

their boundaries and the lands under the same, it would seem to

require no citation of authority to demonstrate that they have +

standing in this court to protect those right as against any other

— oo

state which may attempt to appropriate such waters, in which they

have the full proprietary interest, to their injury and in violation

of their proprietary rights. However, there is abundant authority

to sustain that right. That right stands upon an equal plane with

the right to protect the forests of a state or any other great gift of

nature within its borders. It stands on a parity with the right to

protect air over its domains. In fact, it would seem to rise to a

dignity higher than that of the right to protect its forests, since

the title to the forests is in private citizens, whereas the title to the

waters is in the states themselves. In Georgia v. Tennessee Copper

Company, 206 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. 1038, the court

held that the state of Georgia had a right to maintagh an origina! suit

in this court to protect its forests from destruction without regard

to their economic value, and without regard to the fact that such

forests were held in private ownership. In Kansas v. Colorado,

206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956, Kansas asserted its

right to protect an interstate river because of its ownership of

the bed of the same. The right to maintain the suit was sus-

tzined, as we understand it, on this as well as additional grounds.

' That a_ state may vindicate its rights in interstate waters

as against the appropriation thereof, or pollution thereof by another

state or agency thereof, has algo been recognized by this court in

Wyoming v. Colorado, 259 U. S. 419, 42 Sup. Ct. 552, 66 L. Ed.

999, New York v. New Jersey, 256 U. S. 296, 41 Sup. Ct. 492, 65

L. Ed. 937, Missouri v. Illinois, 180 U. S. 208, 21 Sup. Ct. 331, 45 L.

er “Ed. 497. ; ;

—~ The allegations of the bill disclose that a large part of this inter-

state stream or watercourse, together with connecting waters thereof,

which is generally known and described as the Great Lakes-St.

Lawrence. Waterway, lies within the borders of the complaining

states, If such allegations did not appear from the face of the bill.

this court would take judicial notice thereof, since the court will

necessarily take judicial notice of the extent of the boundaries of 2

state of the Union. From such judicial notice this court would

knew that the borders of the complaining states extend to the

center of such of the Great Lakes as “border upon the respective

complaining states and include within their boundaries many of

the connecting waters thereof. The bill further discloses not only

that the action of the State of Illinois, of which complaint is made,

is interference with the natural fow of the waters of an interstate

watercourse within the borders of the offending state, but also that

the act of which complaint is made, by reversing the natural flow

of a portion of that course, attempts to reach into the borders of

the complaining states through the operation of natural laws and

abstract from those states waters of an interstate stream or water-

course, which originated in such complaining states or some of them.

and which were never within the boundaries of Illinois, except

through the agency of the act of which complaint is made. That

the abstraction and taking of waters of the complaining states in

which they hold the ful! proprietary right constitutes an injury to

those states, would follow without any express allegation to that

effect.

Thus, in Georgia v. Tennessee C opber @0., 206 U. S. 230, 27

Sup. Ct. 618, 51 L. Ed. 1038, the court said:

“The state has a property interest in water naturally flowing

into it and in the public waters and air within its boundaries.”

And in a note to Pennsylvania v. West | ‘irginia, 43 Sup. Ct. 658,

649: ‘

“If running water is withheld. its Property is taken. If the

public water or air is polluted, its territorial integrity is invaded.”

However, the bill aptly states injury to the states and to large

numbers of their citizens.

walt)

2. Lhe actions of the State of Illinois and its agents, of which the

_ bill complains, constitute an injury to the complaining states

in their quasi-sovercign capacity, wholly distinct from the in-

juries to their citizens; and they are entitled to maintain thic

suit in this court to vindicate quast-sovereign rights.

While the states of the Union have surrendered some of their

sovereign rights to the federal government they still retain in their

capacities of quasi-sovereign, many rights which they are entitled

to maintain and vindicate. In Georgia v. Tennessee Copper Com-

pany, 206 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. 1038, where the

State of Georgia instituted an original suit in this court to enjoin

the discharge of noxious fumes over the territory of that state, this

court disregarded any proprietary interest which Georgia might have

in minute tracts of forest lands within its borders, but laid down the

principle that in its capacity of quasi-sovereign it had a right to

protect its forests from destruction, and the air over its domain from

pollution. In this connection the court said:

“This is a suit by a state for an injury to it in its capacity o1

quasi-sovereign. In that capacity the state has an interest inde-

pendent of and behind the titles of its citizens, in all the earth and

air within its domain. It has the last word as to whether its

mountains shall: be stripped of their forests and its inhabitants

shall breathe pure air. It might have to pay individuals before it

could utter that word, but with it remains the final power. The

alleged damage to the state as a private owner is merely a make-

weight, and we may lay on one side the dispute as to whether the

destruction of forests has led to the gullying of its roads.”

In that case the court further pointed out that no proof of special

(damage was requisite to the successful maintenance of the suit; that

the injury to a state by the invasion of its quasi-sovereign rights was

not susceptible of being compensated in money, and that the right

to balance equities as against an invasion of such sovereign right

does not exist. In this case the court said:

“Some peculiarities necessarily mark a suit of this kind. If tiie

State has a case € all, it is somewhat more certainly entitied to

specific relief than a private party may be. It is not lightly, to

be required to give up quasi-sovereign rights for pay; and, apart

from the difficulty of valuing such rights in money, if that be its

choice it may insist that an infraction of them shall be stopped.

The states, by entering the Union, did not sink to the position of

private owners, subject to one system of private law. This court

has not quite the same freedom to balance the harm that will be

done by an injunction against that of which the plaintiff complains,

that it would have in deciding between two subjects of a single

political power.”

The court further pointed out that it was immaterial whether the

action of Georgia would do more harm than good to her citizens,

as that was a matter for a state alone to determine.

In Hudson Water Company v. McCarter, 209 U.S. 349, 355, 28

Sup. Ct. 529, 52 L. Ea. 828, this court said:

“It sometimes is difficult to fix boundary lines between the pri-

vate right of property and the police power when, as in the case

at bar, we know of few decisions that are very much in point. But

In North Dakota v. Minnesota, 263 WU, S. 365, 373, 44 Sup. Ct.

138, 68 L. Ed. 342, this right was reaflirmed by this court,

The foregoing cases proceed upon the principle that a state in its

quast-sovereign capacity has the right to protect the forests, the air

over its domain, and the public waters. An injury to any of these

great gifts of nature constitutes an injury to the state in its quasi-

sovereign capacity, which is not susceptible of being compensated in

money, and as to which its decision with respect to the maintenance

of its natural resources unimpaired by outside interference is con-

satin

clusive, and which quasi-sovereign rights it may vindicate without

assigning any reason therefor. As stated in Hudson Water C ompany

v. McCarter, 209 U. S. 349, 357, 28 Sup. Ct. 529, 52 L. Ed. 828:

“It finds itself in possession of what all admit to be a great public

good, and what it has it may keep and give no one a reason for its

will.”

The complaint, however, discloses another injury to the com-

plaining states in their quasi-sovereign capacities which entitles them

tc maintain this suit. It appears affirmatively from the bill of com-

plaint that the alleged wrongful act of the State of Illinois and its

agents has lowered the waters of the Great Lakes to the extent of

at least six inches. From this fact it necessarily follows that there

has been great damage to the rights of riparian owners of these

lands who are citizens of the complaining states. It further appears

from the allegations of the bill that this lowering of the levels of the

Great Lakes within the borders of these states and also connecting

waters within the borders of these states has caused great damage to

thousands of the citizens of the complaining states in their attempts

to navigate these waters. It has been often held by this court that

injury to the welfare, prosperity, and property of a large nuraber

of the citizens of a state constitutes an injury to such state in its

quasi-sovereign capacity wholly distinct from injuries to its citizens

and entitles the state to maintain an original action in this court

against an offending state.

In Pennsylvania v. West Virginia, 262 U. S. 553, 592, 43 Sup.

Ct. 658, 67 L. Ed. 1117, in considering the right of a state to maintain

an action where a substantial portion of its population has been

affected, the court said:

“Their health, comfort and welfare are seriously jeopardized by

the threatened withdrawal of the gas from the interstate stream.

This is a matter cf grave public concern in which the State, as the

representative of the public, has an interest affected. It is not

merely a remote or elnical interest apart from that of the indi-

viduals but one which is immediate and recognized by law.”

54...

Again, in New York y. New Jersey, 256 U. S. 296, 494, 41 Sup.

Ct. 492, 65 L. Ea. 937, the court said:

“The health, comfort and prosperity of the people of the state

and the value of their property being gravely menaced, as it is

averred that'they are y the proposed action of the defendants,

the state is the Proper party to represent and defend such rights

by resort to the remedy of an original suit in this court under the

Provisions of the Constitution of the United States, Missouri vy.

Illinois, 180 U. S. 208, 241, 243, 21 Sup. Ct. 331, 45 L. Ed. 497;

Georgia v. Tennessee C opper Co., 206 U. S. 230, 27 Sup. Ct. 618,

51 L. Ed. 1038, 11 Ann. Cas. 488,” :

Again, in North Dakota y. Minnesota, 263 U. S. 365, 374,°44

Sup. Ct. 138, 68 L. Ed. 342, this court said:

“It needs no argument, in the tight of these authorities to reach

the conclusion that, where one state by a change in its method of

draining water from lands within its border increases the flow into

health, and prosperity of her farm owners that resort may be had

to this court for relief.”

The converse of the foregoing Proposition is obviously of equal

truth; and therefore a change in the method of drainage which di-

Missouri vy. Illinois, 180 U.S. 208, 21 Sup. Ct. 331, 45 L. Ed.

497 ; .

Kansas v. C. olorado, 185 U. S.125, 22 Sup. Ct. 552, 46 L. Ed.

838; ;

Wyoming v. Colorado, 259 U. S. 419, 42 Sup. Ct. 522, 66

L. Ed. 999;

——

Pennsylvania v. Wheeling & B. Bridge Co., 9 How. 647, 13

L. Ed. 294;

11 How. 528, 13 L. Ed. 799; 13 How. 518, 14 L. Ed. 249;

18 How. 429, 15 L. Ed. 435;

South Carolina v. Georgia, 93 U. S. 4, 23 L. Ed. 782.

3. The complaining states have a right to maintain this suit in

their privale Capacities as owners of public works and public

property.

The right of a state to maintain an original action in this court

to protect its rights where theuwnlawful act of another state, person,

or corporation has caused injury to such state in its capacity of

owner of public works and public property has always been recog-

nized. Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 14

L. Ed. 249; Pennsylvania v. West Virginia, 262 U. S. 553, 43 Sup.

Ct. 658, 67 L. Ed. 1117; Kansas v. Colorado, 206 U. S. 46, 27 Sup.

pr 055, 51 L. Ed. 956; Georgia v. Tennessee Copper Company, 206

U. S230, 27 Sup. Ct. 618, 51 L. Ed. 1038.

The bill avers in considerable detail special damage to the State

of Wisconsin .in its ownership of public works and public property

by reason of the alleged wrongful acts of the State of Illinois and its

agents. Some contention is made in the various briefs filed by and

or behalf of the defendants that such injury is not real or sub-

stantial. For the purposes of a motion to dismiss or of demurrer,

this allegation of fact in the complaint is admitted and stands as a

verity in the case. The defendants can not both admit the fact and

ask the court to disregard it. If they had seen fit to defy that fact

and put the complainant to its proof, it would have bee“ their right,

but they cannot admit it and then ask the court to disregard it for

the purpose of avoiding the force of their admission. The same

situation applies to many other arguments of fact attempted to be

made by-or on behalf of the defendants.

> —56—/7

4. The complaining states have a standing to maintain this suit as

parens patriae to protect their people.

It has been recognized in this court by a large number of decisions

that a state has a standing as parens patriae of its people where the

legal act of another state, person, or corporation has caused injury

and damage to a large number of the citizens of that state. As has

ra been pointed out by this court, obviously separate and independent

actions by such in jured citizens de not constitute an adequate remedy.

In Missouri y, Illinois, 180 U. S. 208, 21 Sup. Ct. 331, 45 L. Ed.

497, this court said:

“That suits brought by individuals, each for personal injuries

threatened or received, would be wholly inadequate and dispro-

portionate remedies, requires no argument.”

This right must be distinguished from an attempt to collect individual!

claims of the citizens of the State as their trustee against ‘a sister

state. In North Dakota y. Minnesota, 263 U. S. 365, 375-376, 44

Sup. Ct. 138, 68 L. Ed. 342, this court said:

“The right of a state as parens patriae to bring suit to protect

the general comfort, health, or Property rights of its inhabitants

threatened by the Proposed or continued action of another state

by prayer for injunction is to be di fferentiated from its lost power

as a sovereign to present and enforce individual claims of its

citizens as their trustee against a sister state,”

The right of a state to Proceed as parens patriae is sustained in

the following cases:

New York v. New Jersey, 256 U. S. 296, 41 Sup. Ct. 492, 65

L. Ed. 937;

Pennsylvania v. West V irginia, 262 U. S. 553. 43 Sup. Ct.

658, 67 L. Ed. 1117.

The fact that the state has no pecuniary interest is immaterial.

In Kansas vy. Colorado, 185 U. S. 125, 142, 22 Sup. Ct. 552, 46

L. Ed. 838, the court said -*

“As will be perceived, the court there ruled that the mere fact

that a state had no pecuniary interest in the controversy would not

defeat the original jurisdiction of this court, which might be

invoked by the states as parens patriae, trustee, guardian, or repre-

sentative of all or a considerable portion of its citizens; and that

states, under the authority of one of them, thereby putting the

health and comfort of the citizens of the other in jeopardy, pre-

sented a cause of action justicable under the Constitution.

“In the case before us the state of Kansas files her bill as

representing and on behalf of her citizens, as well as in vindica-

tion of her alleged rights as an individual Owner, and seeks relief

in respect of being deprived of the waters of the river accustomed

their powers.” :

i W hile @ state may not maintain an action solely to vindicate the

freedom of commerce in the role of a mere volunteer, where

the action of another state violating the freedom of commerce

inflicts special injury on the state in its proprietary or quasi-

sovereign capacity or as parens patriae of its people, it can

maintain an action to enjoin such act, not as an academic

vindication of the freedom of commerce but as a redress of

its injuries in the capacities stated.

Much is attempted to be made in the various briefs filed by and

on behalf of the defendants of a statement in one of the Opinions in

Louisiana v. Texas, 176 U. S. 1, 20 Sup. Ct. 251, 44 L. Ed. 347, to

the effect that the vindication of interstate commerce has not been

entrusted to the State of Louisiana. F rom this statement it is argued

that the complaining states have no right as _propritors quasi-

sovereign or parens patriae to assert any claim in this suit based

*Italics, except in cited cases and Latin expressions, are ours,

et tes

upon an alleged unlawfui interference by the State of Illinois with

the freedom of commerce which causes special damage to the com-

plaining states and their citizens. In view of the many discussions

of the decision in Louisiana v. Texas, supra, by this court in sub-

sequent opinions, and the obvious difference between the facts

in that case and those set forth in the instant bill of complaint

it is difficult to believe that this contention is seriously made. Ob-

viously no state may maintain an action to vindicate the freedom of

commerce as an academic proposition. However, a claim that a

state may not maintain an action to red-ess wrongs arising from an

unlawful interference with the freedom of interstate commerce on

the part of another state is a very different matter. It is a matter

that has no relation to the fact that the regulation of interstate

commerce is entrusted to the federal government. A state may not

lawfully interfere with the freedom of interstate commerce, either

by direct and positive regulations or by an act which, although in

itself not purporting to have any connection with interstate com-

merce, yet by its inevitable effect interferes with the freedgm of

that commerce. When a state has interfered with interstate com-

merce either directly or through an act which inevitably has that

result, it is liable to suit by an injured party. The restriction on the

state extends not only to a simple prohibition of laws impairing free-

dom of interstate commerce, but extends to interference by any ulti-

mate organ. Western Union Telegraph Company v. Attorney Genera!

of Massachusetts, 125 U. S. 530, 8 Sup. Ct. 961, 31 L. Ed. 790;

Wiliams v. Talladega, 226 U. S. 404, 415, 416, 33 Sup. Ct. 116, 57

L. Ed. 275. Accordingly when a state has, by an unlawful act,

inter ‘ered with the freedom of interstate commerce to the damage of

another state or a private individual, it is no answer to a suit on

behalf of those injured that the regulation of interstate commerce

is entrusted to the federal government. It is not a suit to regulate

interstate commerce but to redress wrongs growing out of an un-

lawful interference with interstate commerce. In Pennsylvania v.

West Virginia, 262 U. S. 553, 43 Sup. Ct. 658, 67 L. Ed. 1117, the

— 59...

state of Pennsylvania maintained a suit on the basis that West Vir-

ginia, by an act of its legislature had attempted to interfere unlaw-

fully with the freedom of interstate commerce to the damage of

Pennsylvania in its proprietary capacity and to the damage of

the state in its quasi-sovereign capacity through injury to a large

number of its citizens. The right to maintain that suit was fully

sustained by this court. At page 591 the contention of the defendants

is discussed and fully disposed of. There this court said:

“Each suit presents a direc: issue between two States as to

whether one may withdraw a natural product, a common subject

of commercial dealings, from an established current of commerce

moving into the territory of the other. The complainant State

asserts and the defendant State denies that such a withdrawal is

an interference with interstate commerce forbidden by the Consti-

tution. This is essentially a judicial question. Jt concededly is

so in suits between private parties, and of course its character is

not different in a suit between States.

“What it sought is not an abstract ruling on that question, but

an injunction against such a withdrawal presently threatened and

likely to be productive of great injury. The-purpose te withdraw

is shown in the enactment of the defendant State before set forth

and is about to be carried into effect by her officers acting in her

name and at her command. The State is the principal and the

action of her officers rightly may be imputed to her, even thought

a suit for an injunction might lie against ther.

“The attitude of the complainant States is not that of mere

* volunteers attempting to vindicate the freedom of interstate com-

merce or to redress purely private grievances. Each sues to

protect a two-fold interest—one as the proprietor of various public

institutfons and schools whose supply of gas will be largely cur-

tailed or cut off by the threatened interference with the interstate

current, and the other as the representative of the consuming public

whose supply will be similarly affected. Both interests are sub-

stantial and both are threatened with serious injury.”

a SJ

The same question was involved in Pennsylvania vy. Wheeling

Bridge Company, 13 How. 518, 14 L. Ed. 249. In that case the

——§0—-

right to maintain action because of damage to the complaining state

was also sustained.

In Pennsylvania vy. Wheeling Bridge Company, supra, 578, the

court said:

“For the reason and facts stated, we think that the bridge

obstructs the navigation of the Ohio, and that the state of Penn-

sylvania has been, and will be, injured in her public works in such

manner as not only to authorize the bringing of this suit, but to

entitle her to relief prayed.”

Any number of cases might be cited of suits between private in-

dividuals involving the constitutionality of state regulations on the

ground of interference with the freedom of interstate commerce.

If the theory of the defendants were ccrrect every such suit would

have to be dismissed upon the ground that the regulation of inter-

state commerce was entrusted solely to the federal government.

Defendants advance the novel theory that complaining states

suffering special damage in their proprietary capacities, as quasi-

sovereign, and as parens patriae of their people, from an illegal ob-

struction to navigation upon the Des Plaines and Illinois Rivers by

virtue of their pollution, have no right to complain thereof for the

reason that such states are not lower riparian owners upon said r.ver.

Obviously the right of navigation free from unlawful obstructions is

not dependent upen a location either above or below or at the point

of unlawful obstruction of a navigable water of the United States.

If the complaining states in any of their Capacities sustained special

injury from such unlawful obstruction their right to proceed against

the same cannot be questioned, and it is, of course, ridiculous to

talk of upper and lower riparian rights in connection therewitll.

The same situation was presented with respect to the location of the

obstruction in Pennsylvania v. Wheeling Bridge Company, 13 How.

518, 14 L. Ed. 249. See also Pennsylvania v. West Virginia, 262

U. S. 553, 43 Sup. Ct. 658, 67 L. Ed. 1117.

The point is attempted to be made that it has been finally” deter-

mined by this court in Missouri v. /llinois; 200 U. S. 496, 26 Sup.

Ct. 268, 50 L. Ed. 5&2, that the pollution does not constitute an ob-

struction. As the point is relatively unimportant, it is only neces-

sary to say that the controyersy in that case related only to the

condition of the waters in the Mississippi River at St. Louis.

which is several hundred miles below the Des Plaines. The court

did not decide that the Des Plaines River and upper Illinois were not

polluted. In the second place this decision was rendered somewhat

over twenty years ago, and ‘the quantity of sewage polluting these

waters has immensely, increased since that time.

In the brief of the intervening defendant states it is asserted that

the right to use the navigable waters of the United States is an

incident of citizenship of the United States and not of citizen-

ship of the state. The materiality of that question is not appar-

ent. The right exists regardless of whether it is derived from

the state or from the United States. Rights derived from the United

States are certainly no less sacred than those derived from a state

and no less capable of judicial vindication at the suit of a person

suffering special injury from a deprivation of such right. The right

to engage in interstate commerce is a natural right subjected by the

constitution to federal regulation free from obstruction. Yet the

state of Pennsylvania vindicated its right in its proprietary Capacity _

and the rights of its citizens in a quasi-sovereign capacity to this

freedom of interstate commerce in Pennsylvania v. West Virginia,

262 U. S. 553, 43 Sup. Ct. 658, 67 L. Ed. 1117. €ases without

number could be cited where privat individuals or corporations

have vindicated federal rights of this character before this court.

Certainly it will not be contended that only the federal government

could vindicate an injury to one of its citizens by reason of the

denial or infringement of a right either natural or arising by

virtue of federal citizenship. Many times such infringement: give

rise to a claim for damages, and obviously the Unifed States could

not sue to collect the damages for one of its citizens. a

;

6. The bill does not ask the court to regulate navigation or to

supervise long continuing acts.

A prayer for enjoining an abstraction of all waters beyond that

needed for navigation does not involve an administration of the

regulation of commerce. It involves only a finding of fact. This

court has made such a determination at the instance of a private

citizen and certainly the rights of these states are of a higher dignity

than those of a private citizen. Moreover. the prayer for enjoining

the abstraction of any water does not involve a regulation of naviga-

tion. In United States v. Rio Grande Dam & Irrigation Company,

174 U. S. 690, 19 Sup. Ct. 770, 43 L. Fa. 1136, this court: required

the lower court to make a determination of the amount of water

which migit be appropriated by the irrigation company without

substantial damage to the navigable portions of the Rio Grande

River and, upon such determination, to enjoin that company from

abstracting a larger quantity of such waters. This, of course, was

the determination of a question of fact. Such is the most that

could be presented to the court in this case under any view of the

relief demanded.

Moreover, it stands admitted by the demurrer or motion to dis-

miss in this case that abstraction of waters beyond one thousand

cubic second feet is in excess of either the present or prospective

needs of navigation. The attempt is made to admit this fact and

then ask the court to disregard the same. For the purposes of this

motion it must stand as a verity in the case, and there is no question

that it could be successfully controverted. The consistent effort

of the defendants to avoid the effect of their demurrer to the bill

by asking this court to disregard allegations of fact contained therei.1

is a substantial admission that the demurrer should be overruled. We

will not further discuss the fact§ in connection with this allegation

at this point since they are covered fully in the statement of facts

in the beginning of this brief.

Under the state of the pteadings it stands admitted that any

diversion in excess of one thansand cubic second feet would not

—63—

he for purposes of navigation, but would necessarily be solely for

the real or imaginary sanitary needs of the defendant Sanitary

District or to produce the power desired by that district or by the

State of Mlinois. The only interest, under any conceivable view of

the controversy here presented, which the federal government could

have would relate « nly to navigation. Since the bill does not seek to

control waters so far as they are needed for navigation purposes the

relief obviously would not constitute any regulation of navigation.

III

THE UNITED STATES AND SISTER STATES ARE NOT

INDISPENSABLE PARTIES.

In the State of California v. Southern Pacific Company, 157 U. S.

229, 249, 15 Sup. Ct. D. 591, 39 L. Ed. 683, this court defined a

necessary party as follows, quoting from Shields v. Barrow, 17 How.

130, 139, 15 L. Ed. 158:

“ “Persons who not only have an interest in the controversy, but

an interest of such a nature that a final decree cannot be made

without either affecting that interest, or leaving the controversy in

such a condition that its final determination may be wholly in-

consistent with equity and good conscience.’ ”

Obviously neither the United States nor the sister states has or

have any interest in the relief sought here. They could not be

affected by the decree prayed for.

The fact that the controversy may involve the extent of the power

cf congress to regulate navigation under the interstate commerce

clause does not make the United States an indispensable party. If

such were not the case the United States would be an indispensable

party in every suit involving a constitutional question under the

federal constitution. It needs no argument or citation of authority

to demonstrate that such is not the fact. The same reasoning applies

to any constitutional question which may arise under the Rivers and

Harbors Act.

a oe

The bill seeks to enjoin the abstraction of waters, in which the

complaining states have a legal interest, to their damage to the extent

which is admittedly in excess of the needs of navigation. The

interest of the United States in any private controversy affecting

navigable waters thereof is limited solely to navigation questions.

Thus in Kansas y. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51

I. Ed. 956, the United States filed a petition for leave to intervene

on the ground that it was interested in the disposition of the waters

of the Arkansas River for reclaiming large areas of aridvlands in

the west. This court denied the petition of the United States for

intervention in that case on the ground that under the constitution

the United States had no interest in any of the waters of the United

States except so far as that interest could relate to the navigation

thereof, and that it had no standing upon any other grounds. No

federai property was involved.

In New York v. New Jersey, 256 U. S. 296, 41 Sup. Ct. 492,

65 L. Ed. 937, the United States intervened to protect its rights with

reference to government property and with reference to the control

of navigation in upper New York Bay. Subsequently by an agree-

ment which was held to-bé lawful and within the authority uf the

federal officers making the same, the United States compromised

with the State of New Jersey its claims with reference to injury to

its own property ard with reference to injury to the navigation of

upper New York Bay. Notwithstanding such settlement on the

part of the United States the suit between New York and New

Jersey proceeded in this court for a period of approximately six

years. Obviously, the federal government could not have been con-

sidered an indispensable party to that suit.

We also invite the attention of the court to Wyoming v. Colorado,

259 U. S. 419, 42 Sup. Ct. 552, 66 L. Ed. 999.

Moreover, the United States cannot be sued without its consent.

It has not given its consent to be sued in this behalf. The exemption

of the United States from suit cannot be held to be a ground for

denying relief to the complainant states. If the United States feels

‘se

that it has any substantial interest in the controversy, it can inter-

vene if it sees fit. However, the court will not permit itself to be

prevented from granting relief among the parties before it by the

fact (which does not exist in this case) that ariother party which

might be otherwise important, if not indispensable, cannot be sued

because of sovereign exemption or for any other reason. The

defendants cannot avoid responsibility for their own acts even

though it was assumed that the United States would be an indis-

pensable party but for the fact that it is exempt from suit.

In Kawananakoa v. Polyblank, 205 U. S. 349, 27 Sup. Ct. 526,

51 L. Ed. 834, the territory of Hawaii was an indispensable party

but could not be sued because of its exemption as a sovereign. The

court, however, granted relief against the defendants, and on page

354 said:

“However it we be in a different case, when the inavility to

jein all parties red to sell all the land is due to a conyeyance by

the mortgagor directly or indirectly to the Territory the court |

is not thereby deprived of ability to proceed.”

We also invite attention of the court to the following cases:

Kansas v. United States, 204 U. S. 331. 341, 27 Sup. Ct. 388,

51 L. Ed. 510;

Mechanics Bank v. Setoon, 1 Pet. 299, 306, 7 L. Ed. 152;

Osborn v, United States Bank, 9 Wheat. 738, 6 L. Ed. 204.

Cases such as California v. Southern Pactfie’Co., 157 U. S. 229,

15 Sup. Ct. 591, 39 L. Ed. 683, have no application here. In that

case the complaining state had a remedy by suit in its own courts

against all of the parties concern and could, if it saw fit, take

the case to this court by writ of error. The existence of such a rem-

edy was pointed out in that case. However, if this court were to

hold that the United States is a indispensable party it would amount

to a denial of remedy to the complaining states, since the United

States has not consented to be sued. This would violate the funda-

ro ee

mental principle of equity that there is no wrong without a remedy.

This suit seeks to protect the proprietary and quasi-sovereign

tights of the complaining states in the waters of the Great Lakes-

St. Lawrence System. As a phase thereof the complaining states

seek to protect the navigation of the Great Lakes System and to

permit all needed abstraction from those waters for the needs of

navigation upon the Des Plaines and Illinois Rivers. Clearly the

sister states of the Union are not indispensable parties. The sister

states which do not border upon the Great Lakes-St. Lawrence water-

way can have no possible rights other than in navigation. The bil!

does not seek to affect navigation other than that it will incidentally

protect and promote the navigation of the Great Lakes-St. Lawrence

waterway without injury to the navigation of the Illinois and Des

Plaines Rivers. In Sanitary District of Chicago v. United States.

266 U. S. 405, 431, 45 Sup. Ct. 176, 69 L. Ed. 352, this court in

discussing the alleged interest in the Mississippi River states said:

“The interest that the river states have in increasing the artificial

flow from Lake Michigan is not a right, but mereiy a considera-

tion that they may address to Congress if they see fit * * *

But we repeat that the Secretary, by his action, took no rights of

any kind. He simply refused an application of the Sanitary Board

to remove a prohibition that Congress imposed. It is doubt ful,

at least, whether the Secretary was authorized to consider the

remote interests of the Mississippi states or the sanitary needs

of Chicago.”

Obviously, sister states cannot, at best, be more than proper parties

to this bill. Indiana, Michigan, and New York, being the other

littoral states of the Great Lakes-St. Lawrence waterway, have filed

briefs in support of the complainants’ bill as amici curiae.

THE BILL OF COMPLAINT IS NOT MULTIFARIOUS.

In direct opposition to the preceding point the defendants assert

that the bill of complaint is tnultifarious in that the complaining

— ii.

states have no right to join in bringing and maintaining this suit.

This assertion is obviously without merit. All of the complaining

states have a comnmon interest ; all are seeking a common relief ; and

the rights of all of the complaining states depend upon the same

transactions or state of facts.

In Heckman et al. v. United States, 224 U. S. 413, 448, 32 Sup.

Ct. 424, 56 L. Ed. 820, in commenting upon a claim that the bill was

multifarious, this court said:

“A further objection is that the bill is multifarious. But in

view of the numerous transfers which the Government attacks,

it was manifestly in the interests of the convenient administration

of justice that unnecessary suits should be z voided, and that trans-

actions presenting the same questions for determination should be

grouped in a single proceeding. The objection to the misjoinder

of causes of action is likewise without merit.”

It is sufficient if complainants are all interested, although dis-

tinctly, in the subject matter, and in the object to be obtained. In

any event, an objection to multifaricusness always rests largely in

the discretion of the court. Since one of the grounds of equity

jurisdiction is the prevention of a multiplicity of suits the court of

equity looks with favor upon the joining of complainants in a suit ;

and the avoidance of a multiplicity of suits is a good ground for

joinder of complainants.

We also invite the attention of the court to Risley @. Utica, 173

Fed. 502; Virginia-Carolina Chemical Co. v. Home Insurance Co.

of New York, 113 Fed. 1.

ar am

THE STATE OF ILLINOIS WAS AND IS WITHOUT. Pow.

ER TO APPROPRIATE AND ABSTRACT THE

WATERS OF THE GREAT LAKES AND CON-

NECTING WATERS IN DEFIANCE OF

RIGHTS OF THE COMPLAINING

STATES.

1. The common law of waters has been generally adopted in th.

United States and obtains in the defendant and complaining

States.

It was the unquestioned rule of the common law that a riparian

proprietor was entitled to the continued natural flow of a living

stream by or through his land without appreciable diminution in

quantity or impairment in quality. This rule was generally adopted

in the United States and it is our purpose at this point to demon-

strate that such rule obtains in the defendant State of Illinois and

in all of the complaining states.

In ( nited States v. Rio Grande Dam & Irrigation Co., 174 U. S.

690, 702, 19 Sup. Ct. 770, 43 L. Ea. 1136, this court said:

“The unquestioned rule of the common law was that evéty

riparian Owner was entitled to the continued natural flow of the

straam. It is enough, without other citations or quotations, to

quote the language of Chancellor Kent, 3 Kent, Comm. sec. 439;

““Every proprietor of lands on the hanks of a river has natur-

ally an equal right to the use of the water which flows in the

stream adjacent to his lands, as it was wont to run (currerc

solebat) without diminution or alteration. No proprietor has a

right to use the water, to the prejudice of other proprietors, above

or below him, unless he has a prior right to divert it, or a title to

some exclusive enjoyment. He has no property in the water itself,

but a simple usufruct while it passes along. Aqua currit et debet

currere solebat, is the language of the law. Though he may use

the witer while it runs over his land as an incident to the land, he

cannot unreasonably detain it. or give it another direction, and he

must return it to its ordinary channel when it leaves his estate.’ ”

—~ff is

This court then stated that the rule as laid down by Chancellor

Kent is undoubted and obtains in those states of the Union which

have simply adopted the common law.

That rule obtains in full vigor“in the complaining State of Wis-

consin. In Kimberly & Clark Co. v. Hewitt. 79 Wis. 334, 44 N. W.

303, the Supreme Court of Wisconsin held that a riparian owner

upon a river had no right to divert the water thereof or a material

part of it through his own land and return it to the river below the

land of a lower proprietor and thus deprive him of the use thereof.

At page 337 the court said:

“The rule is elementary that, unless affected by license, grant,

prescription, or public right, or the like, every proprietor of land

on the bank of a stream of water, whether navigable or not, has the

right to the use of the water as it is wont to run, withouggmaterial

alteration or diminution; and no riparian owner has the right

to use the water of the stream to the prejudice of other riparian

—owne.s above or below him, by throwing it back on the former or

subtracting it from the latter. Lawson v. Mowry, 52 Wis. 219,

and cases cited in the opinion by Mr. Justice Cassoday; Ang,

Water-courses (7th ed.), ch. 4, p- 98, note 2; Burrill, Law Dict.

tit. ‘Ut Currere Solebat.’”

Not even the state can take away or destroy the rights of a

riparian owner on a navigable lake without compensation or for a

private purpose. Priewe v. Wisconsin State Land and Improve-

ment Co., 93 Wis. 534, 67 N. W. 918. We also invite the attention

of the court to Cedar Lake Hotel Co. vy. Cedar Lake Hydraulic Co.,

79 Wis. 297, 48 N. W. 371; Williams v. Bass, 179 Wis. 364, 191

N. W. 499.

The common law rule of waters obtains in the State of Illinois.

Evang. Merriweather, 4 I. (3 Scam) 492, 38 Am, Decisions 106;

Barrett v. Mt. Greenwood Cemetery Association, 159 Ml, 385, 42

N. E. 891; Village of Dwight v. Hayes, 150 Ill. 237, 37 N. E. 218;

Plumleigh vy. Dawson, 6 Ill. (1 Gilman) 544; Bliss v. Kennedy, 43

Ill. 67; Dayton v. Commissioners, 128 lil. 271, 21 N. EF. 198.

To avoid burdening this brief unnecessarily we will simply cite the

ae Se

decisions te show that a common law rule that a lower riparian

Owner is entitled to the natural flow of a stream through or by his

property without material diminution of quantity or quality obtains

in the other complaining states and in the other States littoral to the

Great Lakes-St. Lawrence System. Minnesota Loan & Trust C 0. V.

Se. Anthony Falls Water Power Co., 82 Minn. 505, 85 N. W. 520,

523; Miller v. Miller, 9 Pa. 74, 49 American Decisions 545; Clark v.

Pennsylvania R. R. Co., 145 Pa. St. 438, 77 Atl. 989; Columbus and

H. Coal & Iron Co. v. Tucker, 48 Ohio St. 41, 57, 26 N. E. 630;

Mansfield v. Balliett, 65 Ohio St. 451, 63 N, E. 86, 58 L. R. A. 628,

633 ; Canton v. Shock, 66 Ohio St. 19, 63 N. E. 600; Burke v. Simon-

son, 104 Ind. 173, 2 N. E. 309; Stock v. Jefferson, 114 Mich, 357,

72 N. W. 132; Amsterdam Knitting Co. v. Dean, 43 N. Y. St. rik

affirmed 56 N. E. 757, 162 N. Y. 278; Strobel v. Kerr Salt Co.,

164 N. Y. 303, 58 N. E. 142.

As was pointed out in Mansfield v. Balliett, 65 Ohio St. 451, the

right of every Proprietor over or past whose land a stream of water

flows that it shall continue to flow to and from his premises in the

quantity, quality, and manner in which it was accustomed to flow

by nature, subject only to the reasonable uses of upper riparian

proprietors, is a Property right which cannot he taken except for

public purposes and then only for compensation. It needs no argu-

ment to show that the state of Illinois could not take the property

rights of the citizens of the complaining states, even for compensa-

tion, because such an act would be an invasion of and an injury

to the quasi-sovereign rights of the complaining states.

The state holds the title to the waters in trust for its people, so

that it not only has a right but it also has a duty to protect them.

In Rossmiller v. State, 114 Wis. 169, 186, 80 N--W. 839, the Su-

preme Court of Wisconsin stated that it “has repeatedly said that

the navigable waters of the state have substantially the incidents of

tidal waters at commen law ; that the title to the beds of such waters

was reserved for the State by the Ordinance of 1787 and vested

in it at the instant it was admitted into the Union to preserve the

an SE SA ae Ts Ti pa Pa pM Aart wat aed eS Piet Satya

public character of such waters with all such incidents ; and that the

state never has and never can constitutionally impair tha trust.” To

the same effect see Jllinois Steel Co. v. Bilot, 109 Wis. 418, 425, 426,

84. N. W. 855; Pewaukee v. Savoy, 103 Wis. 271, 274, 79 N. W. 436.

2. As proprietors of the waters of the Great Lakes within their

borders, the complaining states have a right to the natural

flow of the waters in such water-shed and to all the waters

coming naturally to them, to the end that the waters of the

Gréat Lakes shall be preserved in their navigable capacity and

at their natural level and condition for all uses and purposes.

The waters of the Great Lakes are owned by the respective states

in a proprietary capacity. However, this title of the States is in

trust for all of their citizens for the use of navigation, fishing and

every other proper and legitimate use to which the waters can be put.

The waters also have a beneficial effect upon the lands through which

they flow or along which they border. Such waters benefit and

render more easily accessible the water supply beneath the ground

bordering upon them and contribute directly to the waters in and

under the adioining land which are necessary to the successful

cultivation of that land. For all of these purposes it is not only the

right but the duty of the state, as the guardian and trustee of its

citizens, to protect those waters in their natural state from any injury

not authorized by law. Since the lower ripatian owner on a stream

may claim as against the upper riparian owner, the right to a con-

tinued, uninterrupted and unpolluted flow of the stream passing his

lands, why canngi the lower state claim the same right as against

the upper state? The right of the state is superior in extent and

in dignity to the right and property of the riparian owner, since the

State has the full proprietary interest which the riparian owner has

not, and since the state has the additional right and duty in its quasi-

sovereign capacity as guardian of the right and property of its

citizens.

In Hudson County Water Company v. McCarter, 209 U. S. 349,

ie ei

re. , Te

356, 28 Sup. Ct. 529, 52 L. Ed. £28, this court, in speaking of the

tight of a state to protect and conserve its natural resources for the

benefit of the people, and speaking with particular regard to the

right of a state in its quasi-sovereign capacity to protect its waters.

said:

“We are of the opinion further that the constitutional power of

the state to insist that its natural advantages shall remain unim-

paired by its citizens is not dependent upon any nice estimate of

the extent of present use or speculation as to future needs, * * *

It finds itself in possession of what ali admit to be a great public

good, and what it has it may keep and give no one a reason for

its will.”

In discussing this case in the lower court, 70 New Jersey i.quity

695, 718-719, Justice Pitney said:

“It will, of course, be observed that the case before us is not

at all parallel to the case that would be presented were the state of

New Jersey or citizens thereof setting up a right to interfere with

the flow of water that otherwise would, in its natural course, reach

the territory of a neighboring state. Such a case was presented in

New York City v. Pine, 185 U. S. 93. There the city of New

York constructed a dam on the west branch of Byram River,

within the State of New York. this being a non-navigable stream

of fresh water arising in New York, flowing thence through the

State of Connecticut, and emptying into Long Island sound. ~“The~

plaintiffs were riparian owners of land in the State of Connecticut,

and brought action in federal circuit court for an injunction to

restrain the city from diverting the waters of the west branch from

their natural flow through the plaintiffs’ lands. The supreme

court assumed, without deciding, that although the west brav-h

above the dam and all the sources of the supply of water to that

branch are within the limits of the State of New York, that state

has no power to appropriate such water or prevent its natural flow

through its customary channel into the State of Connecticut. The

injunction was denied, however, and the right of the plaintiffs to

pecuniary compensation established in its stead, on the ground of

theit acquiescence in the construction of the works by means of

whidh the diversion was to be effected. In the great case of

—73—

Kansas v. Colorado, 185 U.S. 125 (decided on demurrer, but not

yet determined on final hearing), the State of Kansas, party on

the basis of its ownership of riparian land upon the Arkansas

river and partly in the right of its citizens who are riparian owners

thereon, is seeking to enjoin the State of Colorado from withdraw-

ing from the river for irrigation of the arid lands of Colorado

so much of the waters of the river as to materially injure the

riparian lands in Kansas. A demurrer to the bill was overruled

on the ground that in a case of so great inportance a determination '

of the questions involved ought to he left until the facts were

established by proofs. Imptiedly the right to prevent an unduc

interference with the natural flow of the river was recognised.”

This question is discussed in Farnham on W aters (1904) Vol. 1,

. 29, as follows:

“A river which flows through the territory of several states or

nations is their common property. Each is entitled to its .navi-

gation throughout its whole extent, so far as it can be exercised

without injury to the rights of others. It is a great natural high-

way conferring, besides the facilities of navigation certain inci-

dental advantages, such as, fishery and the right to use the water

for power. Neither nation can do any act which will deprive the

other of the benefits of those rights and advantages. The inherent

right of a nation to protect itself and its territory would justify

the one lower down the stream in preventing by force the one

further up from turning the river out of its course or in con-

suming so much of the water for purposes of its own as to deprive

the former of its benefit. * * * Courts, having a supervisory jur-

isdiction over the acts of the political department of government,

will prevent acts by that department which will injure the rights

of the neighboring states. The gifts of nature are for the benefit

of mankind, and no aggregation of men can assert and exercise

such rights and ownership of them as will deprive others having

equal rights, and means of en joying them, of such enjoyment. The

acts of nations nust be governed by principles of right and justice.

The days of force and self-aggrandizement at the expense of

neighboring nations are passed, and the common right to enjoy

the bountiful provisions of Providence must be preserved.”

tli

In Hoge v. Eaton, 135 Fed. 411, in a suit by settlers in Wyoming

on a stream which arises in Colorado to restrain the diversion of

water from such stream in Colorado, the court, p. 414, stated the

following to be a general principle:

“The idea of an exclusive right in the people of a state to

divert its running waters to the injury of riparian owners in an-

other state must be equally unattainable. Indeed, the doctrine

of riparian ownership and use of running water is not subject

to political boundaries. Between hostile states the doctrine must

be recognized, but any such repudiation would be simply vis major.

Between states dw

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