U.S. Supreme Court PIGEON RIVER IMP., SLIDE & BOOM CO. v. CHARLES W. COX, LTD., 291 U.S. 138 (1934)

[Page 291 U.S. 138, 148]

1842-the Webster-Ashburton Treaty-which, after defining the international boundary, provides as follows:1 'It being understood that all the water communications and all the usual portages along the line from Lake Superior to the Lake of the Woods, and also Grand portage, from the shore of Lake Superior to the Pigeon river, as now actually used, shall be free and open to the use of the citizens and subjects of both countries.'

When this treaty was concluded, the lower portion of the Pigeon river was impassable because of falls and rapids. On July 25, 1842, Mr. Ferguson, who had been surveyor to the commissioners under the seventh article of the Treaty of Ghent,2 thus described this part of the river in response to an inquiry by Mr. Webster:3 'At the mouth of the Pigeon River there is probably about three hundred yards in length of alluvial formation; but the river above that, as far as to near Fort Charlotte, runs between steep cut rocks of basaltic or primitive formation, and is a succession of falls and rapids for nearly its whole length-the last cataract, which is within about a mile of its mouth, being almost one hundred feet in height.' Below Fort Charlotte on the Pigeon river, communication with Lake Superior was by means of a trail about nine miles long running south of the river, and some distance from it, which was known as the Grand portage and was so described in the treaty. [Footnote 4] In Mr. Webster's com-

[Page 291 U.S. 138, 149]

munication to Lord Ashburton of July 27, 1842, summarizing the understanding which had been reached as to the boundary and setting forth the proposed stipulation as to water communications and portages which was incorporated in the treaty as above quoted, he said: 'The broken and difficult nature of the water communication from Lake Superior to the Lake of the Woods renders numerous portages necessary; and it is right that these water communications and these portages should make a common highway where necessary for the use of the subjects and citizens of both Governments.' [Footnote 5] At the time of the conclusion of the treaty, this was the highway of commerce, used principally by fur traders, between the Great Lakes and the country to the north and northwest. [Footnote 6] But the Pigeon river itself prior to the improvements here in question, as alleged in the complaint and admitted by the demurrer, 'was at all times incapable of use for the driving, handling and floating of logs, pulp-wood and timber.'

[Page 291 U.S. 138, 150]

Pigeon River Improvement, Slide & Boom Company, which for convenience we may call the Pigeon River Company, was incorporated in 1898 under the general laws of Minnesota. [Footnote 7] These laws purported to empower the Pigeon River Company to improve streams by erecting sluiceways, booms, dams, and other works; to acquire structures already erected together with necessary rights of way, shore rights, land and lands under water; to operate its works so as to render the driving of logs practicable; and to collect 'reasonable and uniform tolls upon all logs, lumber and timber driven, sluiced or floated' on the streams so improved. The company was also authorized, in the case of a boundary stream, to purchase stock in a corporation created in an adjoining state or country for similar purposes upon the same stream, or to unite with such a corporation, upon conditions stated. Acting under this authority, the Pigeon River Company took possession of the portion of Pigeon river within the State of Minnesota and improved it by erecting sluiceways, booms, and dams on the Minnesota side of the international boundary.

[Page 291 U.S. 138, 151]

rendered the driving of logs thereon reasonably practicable and certain.' These improvements. which have since been maintained, were all located below Fort Charlotte on the Pigeon river, with the sole exception of a reservoir dam at the south end of South Fowl Lake.

Adjacent to the lower part of the Pigeon river on the Minnesota side lies the Grand Portage Indian Reservation, extending for a considerable distance along the stream. [Footnote 8] By the Act of Congress of March 3, 1901,9 the Pigeon River Company was authorized, under such regulations and conditions as the Secretary of the Interior might prescribe, to 'improve the Pigeon River at what is known as the cascades of said river, for the purpose of making said river at said point navigable for floating logs.' For that purpose the company was empowered to enter upon unallotted lands and, with the consent of the allottees, upon allotted lands, adjacent to the cascades, of the Grand Portgage Indian Reservation and to construct such dams, bulkheads and other works as should be necessary. It was further provided that the river 'after being so improved shall be open at all times to the free passage of all timber cut from said Grand Portage Indian Reservation, and to the passage of all other timber for a reasonable charge therefor.' [Footnote 10] It does not appear that the Secretary of the Interior prescribed any regulations or conditions in relation to the improvements made by the Pigeon River Company.

[Page 291 U.S. 138, 157]

boundary stream-improvements necessarily complementary to each other-the Ontario Company may impose charges upon Citizens of the United States for the use of its works on the Canadian side of the line while the Minnesota Company may not charge citizens of Canada for the use of its corresponding works on the Minnesota side.

In deciding the instant case, we think that there are controlling considerations which make it unnecessary to pass broadly upon the significance of the words 'free and open' in provisions in treaties relating to the use of navigable streams-a phrase which with different contexts has been repeatedly used in international engagements. [Footnote 12] The question here is simply as to the application of these words of the Webster-Ashburton Treaty to this particular boundary stream, the Pigeon river, at points where the river was impassable and hence not used as a means of communication at the time the treaty was made, the travel and transportation of that period, and of earlier times, necessarily seeking the portage by means of which alone it was practicable to secure the desired communication. The words of the clause in question 'as then actually used,' undoubtedly refer to the Grand Portage, but we think there is force in the reasoning of the opinion of Judges Rinfret and Smith in the Supreme Court of Canada that these words were not limited to that portage, and we are not convinced that it was the intention either to

[Page 291 U.S. 138, 161]

stipulation. We regard the action of the Congress, following that of the state, as a practical construction of the treaty as permitting these works and justifying the charge.

The same may be said of the action of the Province of Ontario in providing for the complementary works on the Canadian side of the boundary and authorizing tolls for their use. While this action was taken in the plenitude of the power of the provincial Legislature as defined by the Supreme Court of Canada, we perceive no reason for ascribing to that Legislature an intention to override the provision of the treaty but rather see in that action an assumption on the part of the Legislature that its course was not repugnant to the treaty, an inference which finds abundant support in the conclusion of the majority of the judges of the Supreme Court of Canada. Nor does it appear that either of the parties to the treaty has made to the other any representations as to a breach of obligation by reason of the making of the improvements or the imposition of tolls. We find no ground for rejecting the practical construction which the treaty has thus received.

Further, in 1909, for the purpose of settling all questions pending between the United States and the Dominion of Canada, 'involving the rights, obligations or interests of either in relation to the other or to the inhabitants of the other, along their common frontier,' the United States and Great Britain entered into a treaty concerning the boundary waters. [Footnote 17] By article 1 of this treaty the parties formulated their agreement 'that the navigation of all navigable boundary waters shall forever continue free and open for the purposes of commerce to the inhabitants and to ships, vessels and boats of both countries

[Page 291 U.S. 138, 162]

equally.' [Footnote 18] The treaty expressly refers to uses and obstructions of boundary waters which had theretofore been permitted and sets up an International Joint Commission with jurisdiction to deal with future uses and obstructions, as stated. Article 3 of the treaty thus provides (36 Stat. 2449): 'It is agreed that, in addition to the uses, obstructions, and diversions heretofore permitted or hereafter provided for by special agreement between the Parties hereto, no further or other uses or obstructions or diversions, whether temporary or permanent, of boundary waters on either side of the line, affecting the natural level or flow of boundary waters on the other side of the line, shall be made except by authority of the United States or the Dominion of Canada within their respective jurisdictions and with the approval, as hereinafter provided, of a joint commission, to be known as the International Joint Commission.'

[Page 291 U.S. 138, 163]

We think it may fairly be said that the improvements here in question on the Pigeon river constituted structures and uses which had been permitted by the parties prior to the treaty of 1909 and were recognized by that treaty. It does not appear that any action has been taken by either government or by the International Joint Commission inconsistent with this view.

We conclude that it was error to sustain the demurrer to the amended complaint. The judgment of the Circuit Court of Appeals is reversed and the cause is remanded for further proceedings in conformity with this opinion.

It is so ordered. Footnotes

Footnote 1 8 Stat. 573, 574; Malloy, Treaties, vol. 1, pp. 652, 653.

Footnote 2 8 Stat. 221, 222; Malloy, Treaties, vol. 1, loc. cit., pp. 617, 624.

Footnote 3 Sen. Doc., vol. 1, No. 1, 27th Cong., 3d Sess., pp. 104, 105. See, also, 'The Topography and Geology of the Grand Portage,' George M. Schwartz, Minnesota Historical Bulletin, vol. 9, p. 27.

Footnote 4 'The Pigeon River, which now forms the international boundary at Lake Superior, was, in the days of water transportation, the best natural highway between the Great Lakes or the St. Lawrence system, and the great northwestern section of the continent, with its thousands of lakes and streams draining into Hudson Bay or the Arctic Ocean. But the Pigeon River, through the last twenty miles of its course before it flows into Lake Superior, is so obstructed by falls and by cascades in rocky canyons as to be impossible of navigation. On the Canadian side the land is too mountainous and the distance too great for portaging to be practicable; but on the American side the line of the lake shore is roughly parallel to the river, and about seven or eight miles from the mouth of the river a little bay forms a natural harbor from which a portage of about nine miles over not too difficult country can be made to the Pigeon River above the cascades.' 'The Story of the Grand Portage,' Solon J. Buck, Minnesota History Bulletin, vol. 5, p. 14.

Footnote 5 Sen. Doc., vol. 1, No. 1, 27th Cong., 3d Sess., p. 61.

Footnote 6 For a description of the traffic carried on by means of the Grand Portage, see 'The Story of the Grand Portage,' Minnesota History Bulletin, vol. 5, pp. 15-26; 'Voyages from Montreal through the Continent of North America,' Sir Alexander Mackenzie, vol. 1, pp. lxxi, lxxvii-lxxxii; Henry- Thompson Journals, Elliott Coues, vol. 1, pp. 6, 7; Wisconsin Historical Collections, vol. xi, pp. 123-125, note.

Footnote 7 General Statutes of Minnesota 1878, chap. 34; Laws 1889, chap. 221; Laws 1905, chap. 89; Mason's Minnesota Statutes, 1927, 7550-7552.

Footnote 8 10 Stat. 1109, 1110; see, also, H.R. 51st Cong., 1st Sess., Ex. Doc. No. 247, p. 59.

Footnote 9 Chapter 878, 31 Stat. 1455.

Footnote 10 See Cong. Rec., 56th Cong., 2d Sess., vol. 34, pt. 4, p. 3462.

Footnote 11 R.S.O. 1914, c. 178; R.S.O. 1927, c. 218; Lakes and Rivers Improvement Act, R.S.O. 1927, c. 43, 32, 52.

Footnote 12 See Treaty of September 3, 1783, between the United States and Great Britain, art. 8, Malloy, vol. 1, p. 589 (8 Stat. 83); Webster- Ashburton Treaty, 1842, art. 3, Malloy, vol. 1, p. 653 (8 Stat. 574); Treaty of Washington, 1871, arts. 26, 28, compare article 27, Malloy, p. 711 (17 Stat. 872); Convention concerning the Boundary Waters between the United States and Canada, 1909, art. 1, U.S. Treaties, vol. 3, p. 2608 (36 Stat. 2448); Treaty of Guadalupe Hidalgo, 1848, arts. 6, 7; Gadsden Treaty, 1853, art. 4, Malloy, pp. 1111, 1123 (9 Stat. 928; 10 Stat. 1034); Moore, International Law Digest, vol. 1, p. 625 et seq.; Hyde, International Law, vol. 1, 160 et seq.; Oppenheim, International Law, 4th Ed., 178 et seq.

Footnote 13 Willson v. Black Bird Creek Marsh Co., 2 Pet. 245; Gilman v. Philadelphia, 3 Wall. 713; Pound v. Turck, ; County of Mobile v. Kimball, 102 U.S. 691; Cardwell v. American River Bridge Co., 113 U.S. 205, 5 S.Ct. 423; Huse v. Glover, 119 U.S. 543, 7 S.Ct. 313; Sands v. Manistee River Improvement Co., 123 U.S. 288, 8 S.Ct. 113; Lindsay & Phelps Co. v. Mullen, 176 U.S. 126, 20 S.Ct. 325; Minnesota Rate Case 1913, 230 U.S. 352, 403-405, 33 S.Ct. 729, 48 L.R.A.(N.S.) 1151, Ann. Cas. 1916A, 18; International Bridge Co. v. New York, 254 U.S. 126, 41 S.Ct. 56; Economy Light & Power Co. v. United States, 256 U.S. 113, 41 S.Ct. 409; City of Newark v. Central Railroad Co., 267 U.S. 377, 45 S.Ct. 328.

Footnote 17 36 Stat. 2448, U.S. Treaties, vol. 3, p. 2607.

Footnote 18 Article 1 of the Treaty of 1909 is as follows:'The High Contracting Parties agree that the navigation of all navigable boundary waters shall forever continue free and open for the purposes of commerce to the inhabitants and to the ships, vessels, and boats of both countries equally, subject, however, to any laws and regulations of either country, within its own territory, not inconsistent with such privilege of free navigation and applying equally and without discrimination to the inhabitants, ships, vessels, and boats of both countries.'It is further agreed that so long as this treaty shall remain in force, this same right of navigation shall extend to the waters of Lake Michigan and to all canals connecting boundary waters, and now existing or which may hereafter be constructed on either side of the line. Either of the High Contracting Parties may adopt rules and regulations governing the use of such canals within its own territory and may charge tolls for the use thereof, but all such rules and regulations and all tolls charged shall apply alike to the subjects or citizens of the High Contracting Parties and the ships, vessels, and boats of both of the High Contracting Parties, and they shall be placed on terms of equality in the use thereof.'