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United States Supreme Court


No. 14

Argued: Decided: February 20, 1899

[173 U.S. 179, 189]  

Mr. Justice SHIRAS delivered the opinion of the court.

This is a petition, by the defendants in error, for a rehearing of the case of Green Bay & M. Canal Co. v. Patten Paper Co. (decided at the present term) 172 U.S. 58 , 19 Sup. Ct. 97.

The reasons set forth in the petition and accompanying brief seem to go upon a misapprehension of the scope and meaning of the decision of this court.

Thus it is made matter of complaint that this court did not deal with questions concerning the division of the waters of Fox river after they had spent the force or head given them by the dam and canal, and had passed into a nonnavigable portion of the stream below the improvement; and it is suggested that we overlooked the fact that a private dam had been constructed between islands 3 and 4.

But those are questions to which the jurisdiction of this [173 U.S. 179, 190]   court does not extend, and hence could not be considered by us. The purport of our decision was to preserve to the Green Bay & Mississippi Canal Company the use of the surplus waters created by the dam and canal. After such waters had flowed over the dam and through the sluices, and had found their way into the unimproved bed of the stream, the rights and disputes of the riparian owners must be determined by the state courts.

Again, apprehensions are expressed lest the decision in the present case may be construed so as to injury parties using water powers at other places in the river, and who are not represention in the present controversy.

We are not ready to presume that the authorities of the United States will either permit or make changes in the places where the surplus waters are to be used by the Green Bay & Mississippi Canal Company, so as to deprive other parties of the water powers they have been using for so many years, unless such changes are found to be necessary and proper in the regulation and delivery of the surplus waters created by the public improvement. But such questions are not now before us.

While the courts of the state may legitimately take cognizance of controversies between the riparian owners, concerning the use and apportionment of the waters flowing in the nonnavigable parts of the stream, they cannot interfere by mandatory injunction or otherwise with the control of the surplus water power incidentally created by the dam and canal now owned and operated by the United States.

The petition for a rehearing is denied.

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