This court held in the case of The Daniel Ball, 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. 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 thence 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 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 of 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.
It is true, without the improvements by locks, canals, and dams, Fox River, through its entire length, could not be navigated by steamboats or sail vessels, but it is equally true that it formed, in connection with the Wisconsin, one of the earliest and most important channels of communication between the Upper Mississippi and the lakes. It was this route which Marquette and Joliet took in 1673 on their voyage to discover the Mississippi; and the immense fur trade of the Northwest was carried over it for more than a century. Smith, in his History of Wisconsin, says: 'At this time (1718) the three great avenues from the St. Lawrence to the Mississippi were, one by the way of the Fox and Wisconsin Rivers, one by way of Chicago, and one by the way 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 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.