Charles Evans Hughes

“ The question of navigability is thus determinative of the controversy, and that is a federal question. This is so, although it is undisputed that none of the portions of the rivers under consideration constitute navigable waters of the United States, that is, they are not navigable in interstate or foreign commerce, and the question is whether they are navigable waters of the State of Utah. [5] State laws [6] cannot affect titles vested in the United States. ”

“ If this be so the river is navigable in fact, although its navigation may be encompassed with difficulties by reason of natural barriers, such as rapids and sand-bars.'
The government invites a comparison with the conditions found to exist on the Rio Grande river in New Mexico, and the Red river and the Arkansas river, above the mouth of the Grand river, in Oklahoma, which were held to be nonnavigable, but the comparison does not aid the government's contention. Each determination as to navigability must stand on its own facts. ”

“ Much of this evidence as to actual navigation relates to the period after 1896, but the evidence was properly received and is reviewed by the master as being relevant upon the issue of the susceptibility of the rivers to use as highways of commerce at the time Utah was admitted to the Union.
The question of that susceptibility in the ordinary condition of the rivers, rather than of the mere manner or extent of actual use, is the crucial question. The government insists that the uses of the rivers have been more of a private nature than of a public, commercial sort. ”

“ The United States asks that the claim of Utah to any right, title, or interest in the river beds in question be adjudged to be null and void, that it be determined that the United States has full and exclusive title thereto, and that injunction issue accordingly. ”

“ The Green river has its source in the mountains of Western Wyoming and has a total length of about 700 miles. After passing through a series of canyons, the rock walls of which are of great height, it enters the Green River valley in which the town of Green River, Utah, is situated, about 117 miles above the river's mouth. The drop in elevation between the town of Green River, Wyo., and Green River, Utah, is from 6,067 to 4,046 feet-2,021 feet in 387 miles causing many difficult and dangerous rapids. ”

“ The extent of existing commerce is not the test. The evidence of the actual use of streams, and especially of extensive and continued use for commercial purposes may be most persuasive, but, where conditions of exploration and settlement explain the infrequency or limited nature of such use, the susceptibility to use as a highway of commerce may still be satisfactorily proved. ”

“ The ordinary flow of water is insufficient. It is not like the Fox river, which was considered in The Montello, in which was an abundant flow of water and a general capacity for navigation along its entire length, and, although it was obstructed at certain places by rapids and rocks, yet these difficulties could be overcome by canals and locks, and when so overcome would leave the stream, in its ordinary condition, susceptible of use for general navigation purposes.' In Oklahoma v. ”

“ There was a survey by Robert Brewster Stanton in 1889, and in the succeeding years there were a large number of enterprises, with boats of various sorts, including rowboats, flatboats, steamboats, motorboats, barges and scows, some being used for exploration, some for pleasure, some to carry passengers and supplies, and others in connection with prospecting, surveying, and mining operations. ”