In looking into the record we do not find this | below, take his chances of success and. upon question anywhere made in the courts below. failure, come here and object that the court be It does not appear to have been made before low had no authority to take the proceeding. the auditor, or before the Supreme Court on This point comes before us at every term and appeal. On the contrary, it affirmatively ap- is always decided the same way. Brown v. pears that the assignees submitted the question Clarke, 4 How., 4; Phelps v. Mayer, 15 How., of the title to the fund to both of these courts, 160; Turner v. Yates, 16 How., 14; Camden v. and asked its decision in their favor. Thus, in Doremus, 3 How., 515; Bk. v. Kennedy, 17 the proceeding before the auditor, on the 9th Wall., 19, 21 L. ed., 554; Reed v. Gardner, 17 of March, 1868, the assignees appeared by their Wall., 409, 21 L. ed., 665; Ray v. Smith, 17 counsel and "claimed the entire fund, on the Wall., 412, 21 L. ed., 666; Ins. Co. v. Folsom, grounds: 18 Wall., 237, 21 L. ed., 827; Town of Ohio v. Marcy, 18 Wall., 552, 21 L. ed., 813; Lucas v. Brooks, 18 Wall., 436, 21 L. ed., 779; Shutte v. Thompson, 15 Wall., 151, 21 L. ed., 123; Prout v. Roby, 15 Wall., 472, 21 L. ed., 58. First. That it is the property of a bankrupt, and, by reason of said bankruptcy, all his estate passed to the assignees. Second. It was proposed to attack Mrs. Fritton's judgment, on the ground that it was given in fraud of the Bankrupt Law," and for various reasons set forth. Mrs. Fritton denied the allegations of fact made by the assignees, and a jury was demanded and granted, in pursuance of the practice in such cases in Pennsylvania. After the jury had passed upon the questions of fact the record shows at the counsel for the assignees again appeared before the auditor, claiming the fund and insisting that under the 418*] findings of the jury Born was an insolvent when he executed the warrant of attorney to Mrs. Fritton; that it was given to secure a prior debt, and was a fraud upon the provisions of the Bankrupt Act. So, upon the appeal to the Supreme Court, the same ground was taken. It was contended that there was error, among other things, "in disregarding the various provisions of the United States Bankrupt Law in regard to preferences given by bankrupts, and in giving Mrs. Fritton a preference over other creditors, contrary to the 27th section of the United States Bankrupt Act." In stating their position before the Supreme Court on appeal, the assignees, in their argument, which is contained in the record, say: "The inquiry is reduced to this: who is entitled to the fund in court, Mrs. Fritton or Born's assignees?" In all these instances, the assignees submitted the decision of their claims to the state courts, and, in asking those courts to decide in their favor, necessarily asked them to decide the case. While the assignees have made sufficient objection to the judgment rendered against them, we nowhere find an objection to the power of the court to render a judgment. An objection that the court has not decided correctly is a very different thing from an objection that the court has no power to decide. The present was the case of the foreclosure of a mortgage under the state laws. The disposition of any surplus that might arise from a sale on such mortgage, under a proceeding in the state courts, prima facie belonged to the state courts. The subject-matter was within their jurisdiction, and under their control. If special circumstances existed which altered that result, it was the duty of the party making such claim to state them and ask a ruling accordingly. Nothing of the kind was done in the present instance. To be available here an objection must have been taken in the court below. Unless so taken it will not be heard here. It is not competent to a party to assent to a proceeding in the court We are not called upon, therefore, to decide whether, in a case like the present, the [*419 state court having the fund in its possession, was competent to proceed to its distribution, or whether if demand had been made, there having been previous to that time a decree of bankruptcy and the appointment of assignees, the whole subject should have been remitted to the United States Court. See, Marshall v. Knox, 16 Wall., 551, 21 L. ed. 481. The assignees contend, further, that the judgment below was erroneous for the reason that the judgment of Mrs. Fritton was void under the Bankrupt Act, and that she was not entitled to the fund awarded to her. This is the question and the only question which was litigated by the assignees in the state courts. The facts bearing upon the question are these: On the 16th of January, 1868, Born executed and delivered to Mrs. Fritton a bond and warrant of attorney, to secure the payment of $4,500 in one year from date, with interest, on which judgment was perfected the same day. On the 31st day of the same month, a petition was presented by a creditor of Bern, praying that he might be declared a bankrupt, stating various acts of bankruptcy alleged to have been committed on the first day of January, 1868, the 3d and the 14th days of the same month. On the 28th day of February, 1868, Born was adjudged to be a bankrupt, and on the 18th day of March, Mays was appointed one of his assignees. In the proceedings before the auditor, the assignees insisted that at the time of giving the warrant of attorney, Born was insolvent. This allegation the jury found to be true. It was insisted, also, that Mrs. Fritton had reasonable cause to believe that Born was then insolvent. On this point the jury found with Mrs. Fritton, to wit: that she had not such cause. The jury found, further, that the judgment was given to secure the payment of a prior debt, but that it was not given to enable Mrs. Fritton to obtain a preference over other creditors. The 39th section of the Bankrupt Act defines what acts of the debtor afford grounds for declaring him to be a bankrupt upon the petition of his creditor, among which are the following: "Or who being bankrupt or insolvent, shall make any payment, gift, grant, sale, or give any warrant to confess judgment, or procure or suffer his property to be taken on legal process with intent to give a preference to one or more of his creditors." The Bankrupt Court, on the 31st of January, 1868, adjudged that Born had committed some of the acts in this section specified, by reason of which his creditor was entitled to have him declared a bankrupt. Whether Mrs. Fritton shall retain this fund or shall lose it, depends upon the 35th section of the same Act. That section enacts that if any person, being insolvent or in contemplation of insolvency, and within four months before the filing of a petition by or against him, with a view to give a preference, procures his property to be attached or seized on execution, or makes any payment, pledge, transfer, or who shall within six months make any sale, transfer, conveyance or other disposition of his property to any person having reasonable cause to believe that such person is insolvent and such payment, etc., is made in fraud of the 420*] *provisions of this Act, the same shall poses of transportation and commerce, affords the true criterion of the navigability of a river, rather than the extent and manner of that use. 3. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway, although its navigation may be encompassed with difficulties by reason of natural barriers. 4. Fox River is a navigable water of the United States, and steamboats navigating its waters are subject to governmental regulation. [No. 30.] Argued Mar. 6, 1874. Ordered for re-argument Apr. 20, 1874. Re-argued Oct. 21, 1874. Decided Nov. 23, 1874. PPEAL from the Circuit Court of the Unit be void and the assignees may recover the prop-A ed States for the Eastern District of Wis erty, etc., from the persons so to be benefited. To authorize the assignees to recover the money or property under this section, it is necessary that he should establish the act of the bankrupt, not only of which he complains, but also that it was done with a view to give a preference over other creditors, and that the other party to the transaction had reasonable cause to believe that such person was insolvent. For a full discussion of the law on this general subject, see the recent case of Wilson v. Bk., 17 Wall., 473, 21 L. ed., 723; Bump, Bank., 532-542, 547. In the case before us, both of these necessary facts have been found against the assignIn answer to the second inquiry submitted to them, the jury said that Mrs. Fritton had ees. not reasonable cause to believe that Born was insolvent at the time he executed the warrant of attorney. In answer to the further inquiry they said that this warrant of attorney was not given with a view to a preference over other creditors. The warrant of attorney, cannot, therefore, be held void under the 35th section of the Bankrupt Law. That section does not reach it, and as the act of the parties was valid under the statutes of Pennsylvania, there is nothing to impeach its validity. We have not the evidence before us, and we must assume that the verdict of the jury is right. The statute assumes that there may be cases where the various acts of conveyance and disposition may be made, which would not amount to giving a preference. We are of the opinion that the judgment of the Supreme Court of Pennsylvania was right, and that it should be affirmed. 1. Those rivers must be regarded as public navigable rivers in law, which are navigable in fact. 2. The capability of use by the public for pur consin. The libel in this case was filed by the District Attorney of the United States for the District of Wisconsin, in the District Court for that district, to enforce certain penalties against the steamer Montello for her failure to comply with the Acts of Congress concerning the inspection of such vessels engaged in carrying passengers upon the navigable waters of the United States. The case was before this court in 1870 and was then remanded with instructions for further proceedings, in accordance with the opinion of this court as reported in The Montello, 11 Wall., 411, 20 L. ed., 191. with such mandate in the circuit court, and a Hearing of the case was had in conformity large mass of testimony was taken concerning dismissal having been entered, the plaintiffs the navigability of Fox River. A decree of again took an appeal to this court. Messrs. Geo. H. Williams, Atty.-Gen., and C. H. Hill, Asst. Atty.-Gen., for appellant: The question of whether a stream constitutes part of the navigable waters of the United tion whether artificial improvements are reStates, does not depend entirely upon the quesquired in order to render navigation upon it unbroken. The question, as stated by the court when this case was last before it, is a question of fact. A stream may be so insignificant, that, although constituting a part of a slack water or other artificial navigation, and thus navigable, NOTE. To what places the jurisdiction of admiralty is confined-see notes, 16 L. ed. U. S. 110; 66 L. R. A. 211. Navigable waters, what are in United States. Streams and inland waters as highways. The "navigable waters of the United States" are such as are navigable in fact, and which by themselves or their connection with other waters, form a continuous channel for commerce with foreign countries or among the States. Miller v. Mayor of New York, 109 U. S. 385, 395, 27 L. ed. 971. The Ohio is one of the navigable rivers of the United States. Bridge Co. v. U. S., 105 U. S. 470, 475, 26 L. ed. 1143; Packet Co. v. Catlettsburg, 105 U. S. 559, 26 L. ed. 1169. The common law test of the navigability of waters, that they are subject to the ebb and flow of the tide, has long since been discarded in this country. Vessels larger than any which existed in England when that test was established, now navigate rivers and inland lakes for more than a thousand miles beyond the reach of any tide. That test only becomes important when considering the rights of riparian owners to the bed of the stream, as in some States it governs in that matter. Escanaba Co. v. Chicago, 107 U. S. 678, 682, 27 L. ed. 442. it would be entirely lost sight of in the vastly greater navigation connected with it. But some of the greatest rivers on the continent, like the St. Lawrence and the Ottawa, are so interrupted by rapids as to require artificial means to navigate them without break; and the Great Lakes themselves, by the employment of artificial means only, form an uninterrupted line of navigation with the ocean. Where the natural navigation is the principal one, and the artificial merely dependent and ancillary thereto, and the natural stream is, in fact, navigable within the ordinary acceptation of the word, then it is contended that the river forms a part of the navigable water of the United States, if, by means of the artificial navigation it is practically made so, and interstate commerce is actually carried on. All courts, that have had occasion to discuss the question of what is a navigable stream, have given a very broad and liberal construction to these words. Thus in Wisconsin this very river is treated as a navigable river. Harrington v. Edwards, 17 Wis., 586. merous. People v. Canal Appraisers, 33 N. Y., 461; Morgan v. King, 35 Me., 454; Brown v. Chadbourne, 31 Me., 9; Flanagan v. Philadelphia, 42 Pa. 219; Monongahela Bridge Co. v. Kirk, 46 Pa. 112; Moore v. Sanborne, 2 Mich., 519; Cobb v. Smith, 16 Wis., 692; Wood v. Hustis, 17 Wis., 429. "portages," communication was kept up between the navigable waters to the north and to the south. Some of the rivers thus used were very small and would only float canoes. The portages varied in width, but were seldom less than twenty miles. The shortest was the portage between Fox River and the Wisconsin, which was about two miles. These two rivers formed one of the earliest and most important channels of communication across the Territory, and this was the route by which, as early as 1673 Marquette proceeded from Canada to the Mississippi. Partman's Discovery of the Great West, 52, et seq., 3 Bancroft, Hist. of the U. S., 156, 157. By the Ordinance of 1787, organizing the Northwest Territory, Congress enacted that "The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of said Territory as to the citizens of the United States, and those of any other States that may be admitted into the Confederacy, without any tax, impost or duty therefor." Ordinance of 1787, article IV. By the Statute of 1836, ch. 54, sec. 12, establishing the Territory of Wisconsin, the inhabitants are declared entitled to "All and singular the rights, privileges and advantages," and "Subject to all the conditions, restrictions and prohibitions," contained in the Ordinance of 1787. 5 Stat. at L., 15. In 1787 the territory west of the Mississippi By the Statute of 1846, ch. 89, sec. 3, admitbelonged to France, but the United States | ting Wisconsin into the Union as a State, it was owned the then unorganized territory north-enacted that the Mississippi and other rivers west of the Ohio River, separated by the Great bordering on said State, "and the navigable Lakes from the British Territory on the north, waters leading into the same, shall be common and by the Mississippi from the French Terri-highways, and forever free, as well to the intory on the west, and now forming the States habitants of said State as to all other citizens of Ohio, Indiana, Illinois, Michigan and Wis- of the United States, without any tax, duty, consin. impost or toll therefor." An extensive trade was carried on across this territory, by means of rivers flowing north into the Great Lakes and south into the Mississippi and its tributaries, which rise in the center of the territory and often but a few miles apart, so that by carrying goods and canoes across the short intervening spaces known as The capacity of a stream to float logs renders it a public highway for that purpose, even though it can be used only at certain seasons of the year. Brown v. Chadbourne, 31 Me., 4; Treat v. Lord, 42 Me., 552 Knox v. Chaloner, 42 Me.. 150; Veazie v. Dwinel, 50 Me., 484; Lancy v. Clifford, 54 Me., 489; Thunder Bay B. Co. v. Speechly, 31 Mich. 336 18 Am. Rep., 184; Gerrish v. Brown, 51 Me., 256; Davis v. Winstrow, 51 Me., 297. It is not a public right to float logs down a nonnavigable stream only fit for that purpose during periodical freshets. Hubbard v. Bell, 54 Ill., 110 5 Am. Rep., 98. A stream having the capacity to float logs only, whether continuously or periodically, is in no sense navigable. Amer. Riv. Water Co. v. Amsden, 6 Cal., 443. The public have an easement in shallow streams which are of sufficient depth for valuable floatage. Stuart v. Clark, 2 Swan, 16; Elder v. Burrus, 6 Humph., 364. Streams are navigable if of sufficient capacity at any stages of water to be used for the transportation of lumber or other goods. Barclay R. etc., v. Ingraham, 36 Pa. 291. Rivers to the extent that they are in fact navigable are public highways. A river is navigable which is capable of transporting the products of the country or upon which commerce may be conducted. Hickok v. Hine, 23 Ohio St., 523, 13 Am. Rep., 255; Benson v. Morrow, 61 Mo., 345; Wis. Riv. Co. v. Lyons, 30 Wis., 61. 9 Stat. at L., 57. By the Act of 1846, ch. 170, 9 Stat. at L., 83, Congress granted a quantity of land to the State of Wisconsin, for the purpose of improving the navigation of the Fox and Wisconsin Rivers, and declared that they, when improved, should be forever free. A stream capable of being commonly and generally used for floating boats, rafts or logs for any useful purpose is subject to the public use as a passageway. Weise v. Smith, 3 Oregon, 445, 8 Am. Rep., 621. iWhether a river is navigable is a question of fact that in no manner depends upon whether or not the Legislature has declared the river navigable. Martin v. Bliss, 5 Blackf., 35, 32 Am. Dec., 52. The mere fact that a stream has been made navigable by artificial means, will not render it a highway where it was not so before. Morgan v. King, 55 N. Y., 454; Wadsworth v. Smith, 11 Me., 278; Veazie v. Dwinel, 50 Me., 479. Above tide-water presumption is that fresh water stream is not navigable; onus is on party claiming it to be so. Whether a stream is a public highway is a question for the court. Rhodes v. Otis, 33 Ala., 578. Waters are to be deemed navigable which are sufficient in fact to afford a common passage for all people in sea vessels. Collins v. Benbury, 3 Ired. Law, 277, 38 Am. Dec. 722. The large rivers of Pennsylvania are navigable, although there is no ebb and flow of tide therein, and belong to the Commonwealth. Carson v. Blazer, 2 Binn., 475, 4 Am. Dec. 463. What are navigable waters-see note 42 L. R. A. 305. than admiralty jurisdiction; for while it includes navigable waters, it also includes carrying places between the same, and admiralty jurisdiction has not yet extended to land as well as navigable water. Assuming that without special legislation | Ordinance of 1787, is used in a broader sense the Fox River would not be part of the "public navigable waters of the United States," under the decisions of this court in The Daniel Ball, 10 Wall., 557, 19 L. ed. 999, and The Montello, 11 Wall., 411, 20 L. ed. 191, it is, nevertheless, contended that the above special legislation for the protection of the river and portages in the old Northwest Territory and Territory of Wisconsin, makes it a navigable river within the Act on which this information is founded. Messrs. J. H. Hauser and N. C. Griffin, for appellees: Is Fox River a navigable water of the United States? Fox River is known as the upper and lower Fox. The upper Fox runs from above Portage City of Oshkosh, into Lake Winnebago. The lower Fox forms the outlet of Lake Winnebago and empties into Green Bay. There is no outlet for the upper Fox except the lower Fox. The testimony shows that the lower Fox was not a navigable stream prior to 1846. It had numerous rapids and abrupt falls. At Grand Chute there was a solid rock, making a fall of two and one half feet perpendicular. No commerce could be carried up the river in the ordinary and customary manner, and under no circumstances could it be claimed to be a public navigable stream prior to 1846. By an Act of Congress, approved August 6, 1846, entitled "An Act to Grant a Certain Quantity of Land to Aid in the Improvement of the Fox and Wisconsin Rivers, Connecting the Same by a Canal, in the Territory of Wisconsin," exclusive control was granted to the State of Wisconsin, only reserving that it should be a public highway for the use of the United States. The State of Wisconsin, by an Act of the Legislature, approved July 6, 1853, entitled an "Act to Incorporate an Association for the Improvement of the Fox and Wisconsin Rivers," ceded and granted all the rights and privileges which the State had attained from the United States, to this company. The upper Fox has no navigable connections with the sea or lake, but which are made so by artificial or private means. Boats cannot pass up or down the river without passing through the canal and locks and paying toll. If the Fox River is a navigable River of the United States, it is impossible to conceive of any body of water that is not or might not become such navigable water. Does the subsequent legislation of Congress show that the water of the Fox River was included in the ordinance of 1787? By an Act approved August 6, 1846, it granted exclusive control of Fox River to the State of Wisconsin, reserving only the free use of the river for the Government of the United States to carry its mails, property or persons in its employ. Subsequently the State granted to companies the right to improve said river and to demand toll for all boats navigating the same and property and persons carried on said river, except property, etc., of the United States. By the Ordinance of 1787, applied to Fox River then, all subsequent legislation of Congress and the State of Wisconsin in regard to said river is a direct violation of the state ordinance. Again: "common highway," as used in the While the United States did grant land to aid in the improvement of said river, yet the improvement was largely made by private energy and sacrifice, and the Government reserved no rights except as above stated. If the private enterprise should make waters navigable which were not before navigable, and cabable of carrying vessels which are of sufficient capacity to come within the jurisdiction of the Federal Courts, which before were not navigable by any of the ordinary modes of commerce, will the United States then come in and take jurisdiction and control, especially where this improvement is wholly within the State, and subject to state law and state taxation? This court will be slow to make such a radical change and to extend the jurisdiction of the Federal Courts, that, by the same reasoning, the General Government would take control of every trade, manufacture and enterprise throughout the country. Mr. Justice Davis delivered the opinion of the court: The question for decision in this case is, whether the Fox River in Wisconsin is a navigable water of the United States. When the case was here before, 11 Wall., 414, 20 L. ed. 192, the libel was defective and the evidence insufficient to determine the question, and it was remanded for further proceedings, to enable the parties by new allegations and evidence to present the exact character of Fox River as a navigable stream. This has been done, and there is, therefore, nothing in the way of a correct solution of the inquiry. This court held in the case of The Daniel Ball, 10 Wall., 557, 19 L. ed. 999, that those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used or are susceptible of being used in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And a river is a navigable water of the United States when it forms by itself, or by its connection with other waters, a continued highway over which commerce is, or may be, carried with other States or foreign countries in the customary modes in which such commerce is conducted by water. The Montello, 11 Wall., 411, 20 L. ed., 191. Apply these tests to the case in hand, and we think the question must be answered in the affirmative. The Fox River has its source near Portage City, Wisconsin, and flows, in a northeasterly direction, through Lake Winnebago into Green Bay, and hence into Lake Michigan, and by means of a short canal of a mile and a half it is connected at Portage City with the Wisconsin River, which empties into the Mississippi. From its source to Oshkosh the river is frequently spoken of as the "Upper Fox." From Lake Winnebago to Green Bay it is called the "Lower Fox." There are several rapids and falls in the river, but the obstructions caused by them have | 440*] been removed by *artificial navigation, so that there is now, and has been for several years, uninterrupted water communication for steam vessels of considerable capacity from the Mississippi to Lake Michigan, and thence to the St. Lawrence, through the Wisconsin and Fox Rivers; and steamboats have passed and are constantly passing over these rivers, with passengers and freight destined to points and places outside the State of Wisconsin. It is said, however, that although the Fox River may now be considered a highway for commerce, over which trade and travel are, or may be, conducted in the ordinary modes of trade and travel on water, it was not so in its natural state and, therefore, is not a navigable | water of the United States within the purview of the decisions referred to. dinance of 1787, declaring the "navigable waters" leading into the Mississippi and St. Lawrence to be "common highways," the true test of the navigability of a stream does not depend on the mode by which commerce is, or may be, conducted, nor the difficulties attending_navigation. If this were so, the public would be deprived of the use of many of the large rivers of the country over which rafts of lumber of great value are constantly taken to market. It would be a narrow rule to hold that in this country, unless a river was capable of being navigated by steam or sail vessels, it could not be treated as a public highway. The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use. If it be capable It is true, without the improvements by locks, in its natural state of being used for purposes of canals and dams, Fox River, through its entire commerce, no matter in what mode the comlength, could not be navigated by steamboats meree may be conducted, it is navigable in fact, or sail vessels, but it is equally true that it and becomes *in law a public river or [*442 formed, in connection with the Wisconsin, one highway. Vessels of any kind that can float upof the earliest and most important channels on the water, whether propelled by animal pow of communication between the Upper Missis- er, by the wind, or by the agency of steam, are, sippi and the lakes. It was this route which or may become, the mode by which a vast comMarquette and Joliet took in 1673 on their voy- merce can be conducted, and it would be a misage to discover the Mississippi; and the im-chievous rule that would exclude either in demense fur trade of the Northwest was carried termining the navigability of a river. It is not, over it for more than a century. Parkman's however, as Chief Justice Shaw said (Rowe v. Discovery of the Great West, 52 et seq.; 3 Ban- Bridge Co., 21 Pick., 344), "Every small creek croft, Hist. U. S., 156, 157. Smith, in his His- in which a fishing skiff or gunning canoe can tory of Wisconsin (Vol. 1; page 81), says: be made to float at high water, which is deemed "At this time (1718) the three great avenues navigable; but, in order to give it the charfrom the St. Lawrence to the Mississippi were, acter of a navigable stream, it must be generalone by the way of the Fox and Wisconsin Riv- ly and commonly useful to some purpose of ers, one by way of Chicago, and one by the way trade or agriculture." of the Miami of the Lakes, when, after crossing the portage of three leagues over the summit level, a shallow stream led into the Wabash and Ohio." It is, therefore, apparent that it was one of the highways referred to in the Ordinance of 1787, and, indeed, among the most favored on account of the short portage between the two rivers. In more modern times, and since the settlement of the country, and before the improvements resulting in an unbroken 441*] navigation *were undertaken, a large interstate commerce has been successfully carried on through this channel. This was done by means of Durham boats, which were vessels from seventy to one hundred feet in length, with twelve feet beam, and drew when loaded, two to two and one half feet of water. These boats, propelled by animal power, were able to navigate the entire length of Fox River with the aid of a few portages, and would readily carry a very considerable tonnage. In process of time, as Wisconsin advanced in wealth and population, and had a variety of products to exchange for the commodities of sister States and foreign nations. Durham boats were found to be inadequate to the wants of the country, and Congress was appealed to for aid to improve the navigation of the river, so that steam power could be used. This aid was granted; and since the river has improved, commerce is carried over it in one of the usual ways in which commerce is conducted on the water at the present day. But commerce is conducted on the water, even at the present day, through other instrumentalities than boats propelled by steam or wind. And, independently of the Or The learned judge of the court below rested his decision against the navigability of the Fox River below the De Pere Rapids chiefly on the ground that there were, before the river was improved, obstructions to an unbroken navigation. This is true, and these obstructions rendered the navigation difficult, and prevented the adop tion of the modern agencies by which commerce is conducted. But, with these difficulties in the way, commerce was successfully carried on, for it is in proof that the products of other States and countries were taken up the river in its natural state from Green Bay to Fort Winnebago, and return cargoes of lead and furs obtained. And the customary means by which this was done, was Durham boats. As early as May, 1838, a regular line of these boats were advertised to run from Green Bay to the Wisconsin portage. Doty v. Strong, 1 Pin. (Wis.), 316. But there were difficulties in the way of rapid navigation even with Durham boats, and these difficulties are recognized in the Ordinance of 1787, for not only were the "navigable waters" declared free, but also the "carrying places" between them, that is, places where boats must be partially or wholly unloaded and their cargoes carried on land to a greater or less distance. Apart from this, however, the rule laid down by the district judge as a test of navigability cannot be adopted, for it would exclude many of the great rivers of the country which were so interrupted by rapids as to require artificial means to enable them [*443 to be navigated without break. Indeed, there are but few of our fresh water rivers which did not originally present serious obstructions to an |