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and lies 409 miles up stream from the eastern boundary of Oklahoma. In that State the river bed between the cut-banks, so-called, has an average width of one-third of a mile—the least width being in the vicinity of the 100th meridian and the greatest in the vicinity of the receivership area.
By the treaty of 1803 with France and that of 1819 with Spain the United States acquired the full title to the bed of the river within what now (Onstitutes the State of Oklahoma and to the adjacent lands on the north, anıl it still is their proprietor, save as in the meantime the title to particular areas, or some beneficial interest therein, has passed or been transferred from it to others in virtue of the Constitution or some treaty or law made thereunder. Recognizing that this is so, the claimants, other than the United States, severally have assumed, as they should, the burden of showing that the rights in the river bed which they are asserting were melliately or immediately deived from the United States. Whether they have successfully carried this burden is the matter for decision.
Oklahoma claims complete ownership of the entire bed of the river within that State, and in support of its claim contends that the river throughout its course in the State is navigable, and therefore that on the admission of the State into the Union on November 16, 1907, the title to the river bed passed from the United States to the State in virtue of the constituional rule of equality among the States whereby each new State becomes, as was each of the original States, the owner of the soil underlying the navigable waters within its borders. If that section of the river be navigable, its bed undoubtedly became the property of the State under that rule. Those who oppose the State's claim recognize that this is so; and the State concedes that its claim is not tenable if that section of the river be not navigable. So the real question in this connection is whether the river is navigable in Oklahoma.
The State relies on the third article of the treaty of 1819 between the United States and Spain (8 Stat. 252) as conclusively establishing the navigability of that section of the river. The article says:
The boundary line between the two countries west of the Mississippi shall begin on the Gulph of Mexico, at the mouth of the river Sabine, in the sea, continuing north along the western bank of that river to the 320 degree of latitude; thence by a line due north to the degree of latitude where it strikes the Rio Roxo of Nachitoches or Red River; then following the course of the Rio Roxo westward to the degree of longitiude 100 west from London and 23 from Washington; then crossing the said Red River and running thence by a line due north to the river Arkansas; thence following the course of the southern bank of the Arkansas to its source in latitude 42 north; and thence by that parallel of latitude to the South Sea. The whole being as laid down in Melish's map of the United States, published in Philadelphia, improved to the first of January, 1818. But if the source of the Arkansas River shall be found to fall north or south of latitude 42 then the line shall run from the said source due south or north, as the case may be, till it meets the said parallel of latitude 42, and thence along the said parallel to the South Sea. All the islands in the Sabine and the said Red and Arkansas Rivers throughout the course thus described to belong to the United States, but the use of the waters and the navigation of the Sabine to the sea and of the said rivers Roxo and Arkansas throughout the extent of the said boundary on their respective banks shall be common to the respective inhabitants of both nations."
The State's reliance is on the concluding words, but we think it ill-founded. At the date of the treaty the Red and Arkansas Rivers were in a general way
3 Scott v. Lattig, 227 U. S. 229, 242–243, and cases cited.
known to be navigable in their lower reaches and not navigable in their upper reaches, but how far up the streams navigability extended was not known. Both were of great length, largely within a region occupied by wild Indians and measurably unexplored. The words on which the State relies evidently were to apply alike to both streams. The international boundary was to run along the southerly banks of both-along that of the Red for about 600 miles * east of the 100th meridian and along that of the Arkansas from the same meridian to the source of that river in the heart of the Rocky Mountains. To attribute to the parties a purpose to impress this entire stretch of the Arkansas with a navigable character, regardless of the actual condition, is, in our opinion, quite inadmissible. And so of the 600-mile stretch of the Red. The entire article, examined in the light of the circumstances in which the treaty was negotiated, shows, as we think, that what really was intended in this regard was to provide and make sure that the right to navigate these rivers, wherever along the boundary they were navigable, in fact, should be common to the respective inhabitants of both nations.
A legal inference of navigability is said to arise from the action of the surveying officers who when surveying the lands in that region ran a meander line along the northerly bank and did not extend the township and section lines across the river. But this has little significance. The same thing was done on the Platte and other large western streams known to be unnavigable. Besides, those officers were not clothed with power to settle questions of navigability.”
A like inference is sought to be drawn from the fact that Congress, in permitting the construction of certain bridges across the river within Oklahoma, provided in substance that there should be no interference with naviga ion. But it is reasonably manifest that this provision was only precautionary and not intended as an affirmation of navigable capacity in that locality. The river was known to be navigable from its mouth to near the eastern boundary of Oklahoma and there had been, as will be seen presently, some light navigation above that boundary in the irregular times of temporary high water; so those who were about to construct the bridges at large expense deemed it prudent to secure the permission of Congress, and Congress merely took the perfectly safe course of qualifying its permission as indicated.
We find nothing in any of the matters relied on which takes the river in Oklahoma out of the settled rule in this country that navigability in fact is the test of navigability in law, and that whether a river is navigable in fact is to be determined by inquiring whether it is used, or is susceptible of being used, in its natural and ordinary condition as a highway for commerce, over whch trade and travel are or may be conducted in the customary modes of of trade and travel on water."
The' evidence bearing on this question is voluminous and in some respects conflicting. A large part of it deals directly with the physical characteristics of the river, comes from informed sources, and is well in point. A small part consists of statements found in early publications, and repeated in some later ones, to the effect that the river is navigable for great distances-some of
4 The actual length of the international boundary along the south bank of the Red River was 587 miles. Of that boundary 48 miles
in the Arkansas-Texas boundary and 539 miles are in the Texas-Oklahoma boundary.
5 Barden v. Northern Pacific R. R. Co., 154 U. S. 288, 320; Gauthier v. Morrison, 232 U. S. 452, 458; Harrison 1. Fite, 148 Fed. 781, 784.
o Examples of this are found in the acts of May 15, 1886, c. 332, 24 Stat. 28 ; May 17, 1880, c. 354, 24 Stat. 63; and June 30, 1916, c. 200, 39 Stat. 251.
7 The Daniel Ball, 10 Wall. 557, 563; The Montello, 20 Wall. 430, 439; United States v. Rio Grande Co., 174 U. S. 690, 698; United States v. Cress, 243 U. S. 316, 323; Economy Light and Power Co. v. United States, 256 U. S. 113, 121.
them exceeding its entire length. These statements originated at a time when there were no reliable data on the subject, and were subsequently accepted and repeated without much concern for their accuracy. Of course, they and their repetition must yield to the actual situation as developed in recent years." The evidence also discloses an occasional tendency to emphasize the exceptional conditions in times of temporary high water and to disregard the ordinary conditions prevailing throughout the greater part of the year. With this explanatory comment, we turn to the facts which we think the evidence establishes when it is all duly considered.
The river has its source in the Staked Plains of northwestern Texas, and from there until it gets well into Oklahoma, is within a region where the rainfall is light, is confined to a relatively short period in each year, and quickly finds its way into the river. Because of this the river in the western half of the State does not have a continuous or dependable volume of water. It has a fall of three feet or more per mile and for long intervals the greater part of its extensive bed is dry sand interspersed with irregular ribbons of shallow water and occasional deeper pools. Only for short intervals, when the rainfall is running off, are the volume and depth of the water such that even very small boats could be operated therein. During these rises the water is swift and turbulent and in rare instances overflows the adjacent land. The rises usually last from one to seven days and in the aggregate seldom cover as much as forty days in a year.
In 1910 Captain A. E. Waldron, of the Corps of Engineers, made an examination of this part of the river from the mouth of the Big Wichita eastward to the mouth of the Washita (1854 miles) pursuant to a congressional direction. From his report, fairly portraying the normal condition of that stretch of the stream, we extract the following:
“5. The banks of the river are from one-fourth to 11 miles in width [apart). and from 10 to 30 feet in height, with numerous high, rocky. and clayey bluffs. In the beds of the river the banks cave badly except where the rocky and clayey bluffs occur. This caving causes a continual shifting of the river bed, which moves from one side of the valley to the other.
“ 6. In places the channel is 1,000 feet wide, and has a depth of only about one-third of a foot. At other places, notably in the bends, it narrows down to a width of 30 feet, with an increased depth.
“ 7. The examination of the river was made from a flat-bottom bateau drawing 5 inches when loaded. There was not a single day during the field examination upon which it was not necessary to remove part of the load and drag the boat over sand bars from 300 to 1,000 feet in length. On some days this would occur very often.
“ 8. The field work of examination was performed during the period from November 21 to December 19, 1910. During this period the river gauge at Denison, 11 miles below the mouth of the Washita River, ranged between zero and 1 foot. In reference to the gauge readings at the bridge near Denison, it might be well to state that there were only 42 days during the year 1910 on which this gauge read 2 feet or over, and only 81 days on which it read as much as 1 foot or over.
“9. At three places during the trip down the river in the bateau, solid rock bottom was encountered, ranging from 300 to 1,200 feet in length, and having a depth of only four-tenths of a foot of water in the deepest place."
We regard it as obvious that in the western half of the State the river is not susceptible of being used in its natural and ordinary conditions as a highway, for commerce; and there is no evidence that in fact it ever was so used. That section embraces the receivership area.
* Missouri v. Kentucky, 11 Wall. 395, 410. 9 House Doc. No. 193, 63d Cong., 1st sess., p. 4.
Of course, the conditions along that part of the river greatly affect the part in the eastern half of the State. But the latter receives additional waters from the Washita and other tributaries and has a practically continuous flow of varying volume, the extreme variation between high and low water being about thirty feet. When the water rises it does so very rapidly and it falls in the same way. The river bed has a fall of more than one foot to the mile and consists of light sand which is easily washed about and is carried downstream in great quantities at every rise of the water. At all times there is an almost continuous succession of shifting and extensive sand bars. Ordinarily the depth of water over the sand bars is from six to eighteen inches and elsewhere from three to six feet. There is no permanent or stable channel. Such as there is shifts irregularly from one side of the bed to the other and not infrequently separates into two or three parts. Boats with a sufficient draft to be of any service can ascend and descend only during periods of high water. These periods are intermittent, of irregular and short duration, and confined to a few months in the year,
Lanesport, Arkansas, which is near the Oklahoma boundary, has been the usual head of navigation ; but for several years before railroads were extended into that section boats of light draft carried merchandise up the river to the mouth of the Kiamitia " and other points in that vicinity and took out cotton and other products on the return trip. This occurred only in periods of high water, und was accomplished under difficulties. In very exceptional instances boats went to the mouth of the Washita," where some had to await the high water of the next season before they could return. When the railroads were constructed this high-water, or flood, navigation ceased. That was between 1875 and 1880.
1 According to many witnesses, whose knowledge of this part of the river reaches back for a long period, the depth of the water at ordinary stages has come to be less than it was from 1850 to 1870, when they first knew it. Portions of the banks have been swept away and sand in great quantities has been brought downstream, making the river wider and shallower than at the time of the navigation just mentioned.
Beginning in 1886 Congress made several appropriations looking to the improvement of the river from a point in Arkansas, not far from the Oklahoma boundary, westward to the mouth of the Washita, and about $500,000 was expended on the project. The officer in charge of the work several times recommended that it be discontinued, because not likely to result in any commerical navigation; and in 1916 " that officer, the division engineer, the Board of Engineers, and the Chief of Engineers concurred in recommending that the project be entirely abandoned, their reasons being that the small (high-water) commerce of an earlier period had disappeared ; that the characteristics of the river rendered it impracticable to secure a useful channel except by canalization, the cost of which would be prohibitive; that the expenditures already made were practically useless, and that there was no reason to believe conditions would change in such way as to bring better results in the future. In 1921 that recommendation was repeated. No appropriations in furtherance of the project were made after 1916. Any inference of navigable capacity arising from the
10 The Kiamitia is 83 miles upstream from the eastern boundary of Oklahoma. 11 The Washita is 217 miles upstream from the eastern boundary of Oklahoma. 12 House Doc. No. 947, 67th Cong., 1st sess. 13 House Doc. No. 87, 67th Cong., 1st sess.
fact that this project was undertaken is much more than overcome by the actual conditions disclosed in the course of the work.
While the evidence relating to the part of the river in the eastern half of the State is not so conclusive against navigability as that relating to the western section, we think it establishes that trade and travel neither do nor can move over that part of the river in its natural and ordinary condition according to the modes of trade and travel customary on water; in other words, that it is neither used, nor susceptible of being used, in its natural and ordinary condition as a highway for commerce. Its characteristics are such that its 11se for transportation has been and must be exceptional, and confined to the irregular and short periods of temporary high water. A greater capacity for practical and beneficial use in commerce is essential to establish navigability.14
A decision by the Supreme Court of Oklahoma in Hale v. Record, 44 Okla. 803, is relied on as adjudging that the river is navigable in fact. The opinion in the case is briefly to the effect that in the trial court the evidence was conflicting, that the conflict was there resolved on the side of navigability, and that this finding had reasonable support in the evidence, and therefore could not be disturbed. It was a purely private litigation. The United States was not a party and is not bound. There is in the opinion no statement of the evidence, so the decision hardly can be regarded as persuasive here.
We conclude that no part of the river within Oklahoma is navigable and therefore that the title to the bed did not pass to the State on its admission into the Union. If the State has a lawful claim to any part of the bed, it is only such as may be incidental to its ownership of riparian lands on the northerly bank. And so of the grantees and licensees of the State.
The riparian claims pressed on our attention all relate to the river bed between the 98th degree of west longitude and the mouth of the North Fork.16 They must be considered in the light of matters which we proceed to state.
By a treaty between the United States and the Kiowa, Comanche, anil Apache Tribes of Indians, concluded in 1867, the territory north of the “ middle of the main channel of the Red River and between the 98th meridian and the North Fork was set apart as a reservation and permanent home for those tribes. 14 Stat. 581 and 589. That seservation was maintained until June 6, 1900, when Congress passed an act (c. 813, 8 6, 31 Stat. 672, 676) directing that it be disposed of (a) by allotting in severalty to each member of the tribes one hundred and sixty acres; (b) by setting apart 480,000 acres of grazing lands for the common use of the tribes; (c) by reserving four sections in each township for the future State of Oklahoma for school and other public purposes; and (d) by subjecting the remaining lands to particular modes of entry and acquisition under designated land laws. Besides the allotments and grazing reserves, the Indians were to receive stated payments in money. The Indians assailed the validity of the act, but in Lone Wolf 1. Hitchcock, 187 U. S. 553, this court sustained it as a legitimate exertion of the power of Congress over tribal Indians and their property, and the act was carried into
14 United States v. Rio Grande Co., 174 U. S. 690, 698–699; Leovy v. United States, 177 U. S. 621 : Toledo Liberal Shooting Club 1. Erie Shooting Club, 90 Fed. 680, 682 ; Harrison 1. Fite, 148 Fed. 781, 784; North American Dredging Co. 1. Mintzer, 245 Fed. 297, 300.
15 Economy Light and Power Co. 1. V'nited States, 256 U. S. 113, 12:3.
18 The 98th degree is 380 miles, and the mouth of the North Fork 477 miles, up stream from the eastern Oklahoma boundary.