Full opinion text
PAUL, District Judge. The cause of action set out in the bill of complaint, stated briefly and in substance, is as follows: That the defendant, a Virginia corporation engaged in the business of producing, distributing, and selling eléctric power, has begun and is continuing the construction of a dam across the New river near Radford in Pulaski county, Va., for the purpose of impounding the waters of that river and utilizing the same for generating electric power; that the New river is a stream which arises in-the northwestern part of the State of North Carolina and flows in a general northerly and northwesterly direction across the State of Virginia, into the State of West Virginia, in which latter state, after joining with the Gauley river, it becomes known as the Kanawha river and, under the latter name, continues to flow in a general northwesterly direction until it discharges into the Ohio river at Point Pleasant, W. Va. It is alleged that the New river and the Kanawha constitute one continuous stream' and that it is a navigable interstate stream constituting a navigable waterway of the United States, and that the New river, at the point where defendant’s dam is being constructed, is a navigable water of the United States and said dam is being constructed in and across a navigable water of the United States. It is alleged that the plaintiff has recently expended, and is continuing to expend, large sums in improving the conditions and facilities of navigation in that portion of the stream known as the Kanawha river; that defendant’s project at Radford would, by impounding the waters of New river, not only render New river impossible of navigation during long periods of each year, but would seriously impair navigation upon the Kanawha river. It is alleged that the defendant, before proceeding with the construction of its Rad-ford project, applied to and obtained from the State of Virginia a license to construct the same, and that defendant is proceeding under the purported authority of said license. But that the acts of defendant are being performed without the consent of Congress and without any permission or authority of the Secretary, of War and without having obtained any license from the Federal Power Commission and that such acts are in violation of the laws of the United States, and particularly in violation of what is known as the Rivers and Harbors Act of March 3, 1899, §§ 9, 10, 33 U.S.C. §§ 401, 403, 33 U.S.C.A. §§ 401, 403, and of the Federal Water Power Act of June 10, 1920, as amended, 16 U.S.C. §§ 791— 823, 16 U.S.C.A. §§ 791-823. It is further alleged that in June, 1926, there was filed before the Federal Power Commission by the New River Development Company, a predecessor in interest of defendant, a declaration of intention to construct the dam at Radford and that in September, 1926, the New River Development Company transferred its rights in such declaration of intention to the defendant, which thereafter continued the presentation of the same to the Federal Power Commission; that the Commission, after causing an investigation to be made and considering the plans of defendant’s project, made a finding that said project would affect the interests of interstate commerce; that, notwithstanding said finding, the defendant, without obtaining a license from said Federal Power Commission, began its construction of said dam, on or about June 1, 1934, and is proceeding with the same. Based upon its allegations that the stream in which the dam is being constructed is a navigable water of the United States and that the construction of the dam will obstruct and impair interstate commerce on the New river and on the Kanawha river and will affect the interests .of interstate commerce, the bill prays: (a) That the defendant be enjoined from constructing or maintaining its project otherwise than under a license to be issued by the Federal Power Commission; or in the alternative (b) that the court issue a mandatory order requiring the defendant to remove any and all parts of the project from the limits of New river. In addition to the essential facts above recited, the bill contains much matter in recital of evidential facts upon which it bases the contention that the New river is navigable and that the construction of this dam will impede navigation on it and on the Kanawha. This matter need not be recited here. So far as it is proven by evidence and is material, references will be made to it in the later discussion. The Answer. The answer, briefly summarized, avers in substance the following matter in defense to the bill of complaint: The defendant admits that it has begun and is continuing the construction of the project at Radford. But denies that such construction is in any way unlawful. It denies that New river is a navigable stream over which the' United States has jurisdiction and control but, on the contrary, avers that it is anonnavigable stream and, at the point of the proposed project, is subject only to the jurisdiction and control of the State of Virginia. ’ It avers that the defendant now owns the lands which will be affected by the construction of the dam and that the project docs not require or involve the use of any lands or other property of the United States; and that, being the owner of all lands affected, the defendant has a full and complete proprietary right to construct its water power project, subject only to such regulations as the State of Virginia may impose; that permission to construct said dam has been granted by the State of Virginia, in pursuance to application therefor, and that said project is being constructed pursuant to a license granted by the State of Virginia and in conformity to the conditions and restrictions imposed by said state. Defendant admits that the Kanawha river, lying wholly within the State of West Virginia and into which New river flows, is a navigable stream and that the plaintiff has developed the Kanawha for the improvement of navigation thereon. But it avers that the head of navigation, even with this development, is at a point in the Kanawha downstream from the point of inflow of the New river; that the New river is not and never has been navigable, and that the project of defendant is located on the New river approximately 155 miles upstream from the head of navigation on the Kanawha. Defendant avers that neither the construction nor operation of its project will interfere with or obstruct navigation or the navigable capacity of any navigable water of the United States; that the defendant intends and has declared its intention to so operate its project as not to interfere with or obstruct such navigation or navigable capacity and that, even if this were not true, it would be impossible for said project, in the course of any known or practicable method of operation, to interfere with or obstruct or in any way adversely affect navigation or the navigable capacity of any navigable waters of the United States; that the laws of Virginia under which the license from that state was issued protect any rights of the United States; and that in any event the Secretary of War has power summarily to remove any obstruction if any such occur. The answer further states that it is true that New River Development Company, predecessor in interest of defendant, filed a declaration of intention with the Federal Power Commission in respect to the Radford project, but says the date of such filing was on or about June 26, 1925, and not June 26, 1926, as alleged in the bill. And admits that all rights and obligations under said declaration of intention were transferred to-defendant on September -2, 1926, and that defendant continued presentation of the same before the Commission. It states this declaration of intention was presented for the purpose of obtaining a finding that neither the construction nor operation of defendant’s project would affect the interests of interstate commerce. It avers that on June 1, 1927, the Federal Power Commission made a finding that the portion of the New river involved by defendant’s project is not “navigable waters” within the meaning of the Federal Water Power Act, which finding was correct. But, it avers, the Commission also made a finding that the proposed construction would affect the interests of interstate commerce, which latter finding, the defendant avers, is erroneous and arbitrary, is unsupported by evidence and contrary to the evidence and facts before the Commission; that the defendant, although challenging the existence of any jurisdiction in the Federal Power Commission over the project, nevertheless offered to accept a federal license containing such conditions relating to the manner of construction and operating such project.as are necessary and appropriate to prevent interference with the navigable capacity of the Kanawha river; but that the Commission refused to issue such a license and insisted that defendant should accept a license containing the conditions provided by the Water Power Act for projects located on navigable waters, contrary to the finding of the Commission that the project was upon a nonnavigable stream; that the license tendered by the Commission, known as the standard form license, contained many conditions which have no substantial or reasonable relation to the interests of interstate commerce or to the protection of the navigable capacity of any navigable waters of the United States; that these conditions are beyond the power of the Federal Power Commission or the federal government to impose as a condition to defendant’s right to build and operate its project; that the tendered license contains unauthorized and unconstitutional conditions and requirements which have no relation to the protection of navigation or navigable capacity and which would restrict defendant’s use of its property and depreciate the value thereof, and that defendant refused to accept the tendered license; that, even if it be held that defendant’s project is located upon a navigable stream or is so located as to affect the navigable capacity of a navigable water and that a license from the Federal Power Commission is required therefor, the conditions of such license must be limited to those having a reasonable relation to the protection of navigation or navigable capacity and 'cannot include conditions having no relation to such matters. The defendant avers that the Federal Power Commission and the Chief of Engineers of the United States Army, as agencies of the plaintiff, have made findings that New river is not a navigable stream and that plaintiff is thereby estopped to question its nonnavigability. And finally the defendant avers that no valid cause of action is stated by the bill because it shows no present damage to or invasion of plaintiff’s rights but only an assumed and hypothetical invasion; that the alleged effect of the construction and operation of the project upon interstate commerce is merely a speculative, hypothetical and conjectural effect which could be produced only if defendant, at some future time, were to operate its project in a fanciful and impracticable manner, and that there is no showing of any intention on the part of defendant to operate in such manner; that the assumed possibility of producing an effect on interstate commerce by operation of the project is predicated solely upon conjecture that it is physically possible for defendant so to operate it, although it has never done so, has never proposed to do so,, and has expressly asserted that it intends not to do so. Upon the filing of the answer the plaintiff submitted a motion to strike it upon the usual ground of insufficiency. Argument upon this motion was at length and covered substantially every issue of law involved in the case. The court, being of opinion that an accurate and proper application of the pertinent legal principles could be arrived at only after full development of all facts, denied the motion to strike the answer. Upon argument of this motion the State of Virginia and the State of West Virginia, appearing by their respective Attorneys General, who alleged that these states had a material interest in the litigation, were granted leave to appear amici curiae and filed briefs. Upon the trial of the - case, the testimony of witnesses and the exhibits introduced produced a record voluminous beyond description. For this the court is, no doubt, in some measure responsible. In an effort to ascertain all pertinent information bearing on the issues involved, much latitude in the introduction of evidence was allowed. And industrious counsel armed with every facility for research, historical and scientific, responded to the opportunity offered. The result is a record of evidence so extensive that no effort to recount it or even to summarize it is possible. Such references as are made to the evidence must necessarily refer to it in the most general way and to facts established by the weight of it. The Streams Involved. It appears necessary to a proper consideration of the issues involved in this case that there should first be determined whether New river is a navigable stream. To this end a description of the course of the New and Kanawha rivers, their physical characteristics and other facts pertinent to the questions involved, is desirable. The New river has its sources in two mountain streams in the northwestern part of the State of North Carolina, known as the north and the south forks of the river. These, uniting to form the New river at a point near the North Carolina - Virginia state line, flow into Grayson county, Va. A mile or so after entering Virginia, they are joined by Wilson creek. Most of the maps, profiles, etc., introduced in evidence show the course of the river to the vicinity of Wilson creek and that point may be said to be taken as the head of the river for the purposes of this case. References to distances, etc., hereafter made will treat the mouth of Wilson creek as the head of New river. Beginning at the mouth of Wilson creek, the flow of the river is practically due east for about 25 miles. It then turns in a generally northeasterly direction for approximately 100 miles, during which it passes through portions of the counties of Grayson, Carroll, Wythe, and Pulaski. Below Radford, in Pulaski county, the river turns generally northwestward through Giles - county and crosses the Virginia-West Virginia state line at a point about 160 miles below its head (the mouth of Wilson creek). After crossing into West Virginia, it flows north for about 25 or 30 miles to the city of Hinton and thence inclines to the northwest and flows about 65 miles in that general direction to Gauley in Fayette county, W. Va., where it forms a junction with the Gauley river, which comes in from the east. Below this point the stream resulting from the junction of the New and the Gauley is known as the Kanawha river, which continues in a northwestward direction about 95 miles to junction with the Ohio river at Point Pleasant, W. Va. Immediately below the junction of the New and the Gauley (1 or 1% miles below) is the point known as Kanawha Falls, which will hereafter be frequently referred to. Kanawha Falls is a precipitous rapid with a fall of 16 feet. This point may be said to be the head of the Kanawha river, and the planned head of navigation on the Kanawha is just below Kanawha Falls. For convenience, the stream below the junction of the New and the Gauley will be referred to as the Kanawha river; the designation New river will apply to the stream commonly known by that name and extending from the mouth of Wilson creek to the junction with the Gauley river. The distance from the mouth of the Kanawha up to the mouth of Wilson creek is approximately 347 miles; and from the mouth of New river (at Gauley) up to the mouth of Wilson creek is about 252 miles. These distances are measured in the course of the stream which, particularly in New river, is marked by many large bends or loops. The elevation above sea level at the mouth of Wilson creek is about 2,440 feet; at the mouth of New river (at Gauley) 651 feet; at the mouth of the Kanawha about 500 feet. The elevation at Kanawha Falls, head of navigation on the Kanawha, is 620 feet. It will thus be seen that the fall in the Kanawha from Kanawha Fails to the Ohio river is 120 feet in a distance of 96 miles, or 1.25 feet per mile; while the fall in New river from the mouth of Wilson creek to Gauley is 1,789- feet in a distance of 252 miles, ór 7.1 feet per mile. The slope in New river, however, is not uniform throughout its length. For, example, from Wilson creek downstream for about 40 miles the fall is fairly uniform at a rate of .about 5.7 feet per mile, while in the next succeeding 18 miles there is a fall of 260 feet, an average of 14.4 feet per mile. Nor are the steeper slopes of the river confined to its upper reaches, for we find that in that portion of the river between its mouth and the gauging station at Caperton, W. Va., 17 miles above, there is a fall of 289 feet, or 17 feet per mile. These variances in slope occur throughout the course of the stream. The project of defendant which is the subject of dispute is located at a point about 5 or 6 miles upstream from the town of Radford, Va., and is approximately 100 miles below the mouth of Wilson creek and about 152 miles above the mouth of New river. It is at an elevation of. about 1,730 feet above sea level. In this portion of the river, and for some miles above and below, the slope of the river is fairly uniform at from 5 to 8 feet per mile. The. variations in the slope occur at short intervals and the river, throughout its entire length, consists of a series of pools of comparatively still water separated by shoals or rapids. The pools vary in length from a few hundred yards to as much as several miles, with a probable average length of less than a mile. The rapids also vary in extent and also in the degree of fall. Rapids of 2,000 feet are not uncommon and some a-re of much longer extent. In some of them the water falls almost vertically for from 3 to 6 feet. The slope of the river is such as tends to a rapid runoff of the water and to high velocities in the current of the stream, particularly through the shoals or rapids. Throughout its -length the bed of the stream is rocky, being across ledges of limestone and sandstone and, at many places, with boulders and jutting rocks above the surface of the water. In the course of a report made by the Secretary of War to the House of Representatives in 1935 (74th Congress, House Document No. 91) there is contained the following general description of New river which is here quoted because of its brief but accurate description of the general characteristics of the stream: “Throughout almost its entire length the river flows through a rugged mountainous country. Its valley is narrow, the flood plain being very little wider than the low-water channel, which varies in width from about 200 to 1,000 feet. In many places the banks are sheer bluffs rising from the river’s edge. Ledges of limestone, sandstone and shale crossing the river at frequent interval create rapids and waterfalls. The waterfalls vary in height up to about 18 feet. Between the ledges there are usually short pools of varying depths. The low-water depth in the channel varies from a few inches to more than six feet.” In its course the New river has a num-. her of tributary streams. The principal ones of these are Reed creek, Reed Island creek, and Mack creek, which enter above the site of defendant’s project, and Little river, Walker creek, Indian creek, and Bluestone river, which enter between the site of defendant’s- project and the city of Hinton, W.'Va. At Hinton the New river receives Greenbrier river, its largest tributary. Between Hinton and the mouth of New river there are few, if any, tributaries of any moment. One- peculiarity of the river is that the section from Hinton-to the mouth of the river is more steep, rough, and rugged than any other section. A few miles below Hinton the river enters what is known as the gorge through which it flows for approximately 45 miles in a narrow and tortuous channel between high mountains. The bed is a mass of sharp ledges and boulders and through this, with the steepest ’slope in its entire course, the water rushes with great velocity. The drainage area of the entire'New River is 6,918 square miles. The drainage area at the site of defendant’s project is 2,400 square miles. Due to seasonal variations in precipitation and the slope of the stream, there is a wide fluctuation in the volume of flow. At the site of the defendant’s project, the average flow over a period of 28 years ending September 30, 1935, was 3,211 cubic feet per second, but the flow is less than this for 65 per cent, of the time. The lowest flow known at this point was 521 second feet on September 6, 1930. The greatest flows known at this point occurred during floods in 1878 and 1916 and were estimated to be about 155,000 second feet and 146,000 second feet respectively. At the mouth of New river, the average flow over a period of years is stated to be 10,100 cubic feet per second, and the average flow of the Gauley river at its mouth 2,600 feet per second. At Kanawha Falls, which, as stated, is the head of the Kanawha, and immediately below the junction of the New and the Gauley, the records for 56 years show an average flow of 13,000 second feet, a maximum of about 270,000 second feet on September 14, 1878, and a minimum of 640 second feet on August 15, 1930. The drainage area at Kanawha Falls is 8,300 square miles. From these figures it will appear that, while the flow in New river is subject to wide variation, the river carries a large volume of water in the course of a year. There is no denial that the volume of water passing through the stream over any extended period would be sufficient for purposes of substantial navigation provided other conditions obtained which made it available for that purpose. The Kanawha river, extending about 95 miles from Kanawha Falls to Point Pleasant, carries the waters delivered by the New and the Gauley rivers as well as that of tributary streams entering below Kanawha Falls. While there is some variation in the slope of the Kanawha, it is fairly uniform and comparatively small, averaging about 1.25 feet per mile throughout its course. It is conceded that the Kanawha is at present a navigable stream, and that the federal government has developed, and is developing, its, navigable capacity by a series of dams and' locks which will permit of substantial navigation to a point shortly below Kanawha Falls. Question of the Navigability of New River. In regard to the navigability of New river, the following, each briefly and generally stated, are the contentions upon which the plaintiff appears mainly to rely: (1) That the names Kanawha and New are names given to different portions of the same stream and that they comprise one stream which must be treated and dealt with as a whole. That its actual and conceded use for purposes of navigation (in the lower reaches) imparts to the stream as a whole the status of a navigable water over which the federal government has control. (2) That the States of Virginia and West Virginia, have dealt with and treated the New river as a navigable stream. That the federal government has done likewise and has, in the past, appropriated and expended funds for the improvement of the navigable capacity of the river. (3) That New river has in fact, in past years, been used for the movement of commerce in substantial amounts between the States of Virginia and West Virginia and that it is now available for and susceptible to such use. (4) That, aside from the question of actual present use in interstate commerce, the New river is susceptible of development for the purpose' of commercial navigation. Lack of Navigability Below Hinton. The matter set out in (1) above needs only brief discussion. The Kanawha and the New rivers are one stream only in the sense and to the extent that this is true as to any stream and its largest tributary; but the fact that any river may in any -portion of its course be navigable and subject to such control as the United States may have over navigable waters does not invest every tributary of such river with the same status. To hold otherwise would be to extend the status of a navigable water, with all the consequences thereof, to the remote sources of the tributary streams, the mountain brooks, and spring branches which are the ultimate sources of so many of our great rivers. In the instant case, it happens that a sharp difference in the physical characteristics of the Kanawha and the New rivers serves to emphasize the fault in plaintiff’s contention. The Kanawha is a comparatively placid stream, fairly deep, and with a slope of only 1.25 feet per mile. The limit of these characteristics is distinctly marked by Kanawha Falls. Above that point is the New river, running over a bed of rocks and ledges, a stream of irregular but steep descent and of high velocity. The lack of identity for purposes of navigation is further emphasized by the fact that the lower portion of the New river (for about 50 miles above Kanawha Falls) is the most turbulent and precipitous of the entire river and forms a barrier between the navigable Kanawha and any possibly navigable waters of the New. It is this stretch from the mouth of the New river up to near Hinton which was described as “an impetuous and almost resistless torrent” in the course of a report to the Secretary of War in 1828 and transmitted to the House of Representatives. In other portions of the same report it is said: “Numerous falls and rapids occur, over which the water rushes with deafening impetuosity.” And in a report to the Chief of Engineers, made by N. H. Hutton, Assistant Engineer, in'. 1876, it is said of certain portions of this stretch of New River that: “the masses of rock cumbering the waterway appear at times almost to have absorbed the river. * * *” In 1912, Maj. F. W. Altstaetter, Corps of Engineers, reported to the Chief of Engineers: “From Hinton to the head of slack water in the Kanawha, a distance of 64 miles, the fall is almost 750 feet. There are many bridges .and steep rapids along this portion, including Kanawha Falls, which is about 16 feet high. This whole section is unfavorable for navigation and the river above it could not be connected with navigation in the Kanazvha by the expenditure of any reasonable amount. The navigation between Hinton and Radford must therefore be considered as having no outside river connection.” (Italics by this court.) From these reports, as well as from other evidence in the case, I think it clear that that portion of the New river from Hinton (or a few miles below) to Kanawha Falls is not navigable and never has been and is nbt practicably susceptible of being made navigable. I find also that while, some 60 or 70 years ago, investigations were made and tentative plans suggested for canalizing this portion of the river for purposes of navigation, no steps were ever taken for this purpose and no attempts to render it navigable have ever been made and none are now in contemplation. Due to the plainly non-navigable character of the New river from its mouth up to Hinton, it is evident that there is and can be no connection between navigation on the Kanawha and any alleged or actual navigation on the New river; and that the plaintiff’s contention that New river is a navigable water of the United States must rest on evidence that the river possesses that character from Hinton upwai;d. Evidence as to Navigability Above Hinton. In fact, the evidence introduced by plaintiff, and its argument thereon, as to the navigability of New river, relate to that portion of the river extending from some distance above defendant’s project to Hinton, in the course of which the river flows from Virginia into West Virginia. It is this stretch of the river which plaintiff seeks to prove has been used and is available for the movement of interstate commerce. The evidence offered on this issue by both parties is varied and voluminous. It consists of histories, tales of exploration, the reports of commissions, acts of Congress and of state legislatures, official reports made by the Corps of Engineers of the United States. Army, maps, profiles, photographs, etc., to which is added the oral testimony of old inhabitants and other persons. No attempt can be made to recite it, even in brief. I am unable to agree with plaintiff’s contention that the early historical descriptions of New river show its availability for navigation in its natural state. These descriptions, beginning with the exploring trip of John Peter Sally in 1742, are of trips of exploration or investigation along the course of New river and, in some cases, of its tributaries. They indicate that the explorers were impressed with the size of the .stream and the wild beauty of the scenery along its eourse, and also that they were impressed with the rapid flow of the stream and its precipitous fall. It is true that large parts of these exploring trips were made by boat along the river, but there is nothing to indicate that the boats used were anything larger than was necessary to hold a few men and their limited and scanty supplies. And, even so, these accounts are replete with recitals of the difficulties encountered by the rapids in the river and of frequent portages to overcome them. No doubt since persons first settled along this river they have had small rowboats which they have used to move about on the river adjacent to their lands, for purposes of fishing or to cross the river for business or social errands, but this is not navigation in commerce. The first knowledge of anything which could be construed as commercial navigation is the reference to the use of keel boats in various portions of the river. Just when such use began is not known, but we have knowledge of it following the Civil War and prior to 1873. In 1872 Congress provided for a survey or examination to be made of New river from the mouth of the Greenbrier river at Hinton, W. Va., to the lead mines in Wythe county, Va., which latter point is about 30 miles upstream from defendant’s project. Pursuant to this such survey was made and a report thereof made to the Chief of Engineers by inferior officers assigned to the work. This report included a general description of the course and character of the stream and a mile to mile description of the portion surveyed. In this report, reference is made to “the present system of transportation on this portion of the river by keel boats, which carry from two to three tons, and are floated down the river and poled up,” and it is stated that an expenditure of $100,000 “would greatly ameliorate the condition of the river for this trade, and would enable the trips to be made with so much more certainty as to induce a considerable increase of trade.” Additional surveys and reports were made, resulting finally in the adoption of a plan to create a channel 30 feet wide and 2 feet deep at low water, suited for the “keel boats now in use.” It will thus be seen that keel boats were in use on the river prior to any federal improvement and that the improvements were proposed for facilitating the use of these boats. In 1876 Congress appropriated $15,000 for work on New river and appropriations were continued (although not each year) until 1886, the total appropriations amounting to $112,000. Pursuant to these some work was done in each of the years from 1877 to 1882, inclusive, and a small amount in each of the years 1885 and 1889. The work was confined to making channels through shoal portions of the river, but did not include all of the shoals or falls, and on some of the more precipitous ones no work was done. Neither was the improvement continuous in extent but was divided along three different sections of the river. One of these sections, described by the engineers as the “Lower or Greenbrier Division,” extended upstream from Hinton. The next section, referred to as the “Middle, or New River Bridge Division,” began about Radford, Va., and extended up to the lead mines in the neighborhood of Austinville, in Wythe county, Va. The third section, known as the “Upper or Lead Mines Division,” was from the lead mines toward the head of the river. On the lower or Greenbrier Division some work was done each year from 1878 to 1882, inclusive, and by the latter year had reached as far as Wiley’s Shoals, which is about 26 miles above ITinton. No further work was done on this division above this point and no work was done after 1882. On the middle division, work began at New River Bridge, some 54 or 55 miles above, the state line between Virginia and West Virginia, and some work was done in each of the years 1877, 1878, 1880, 1881, and 1882, in the course of which the work reached a point approximately 30 miles upstream to the vicinity of Allisonia. Work on this division was also discontinued in 1882. On the upper division, a small amount of work was done in each of the years 1881, 1885, and 1889, the total of which was only 7.9 miles. After the work done in 1889 on this portion of the river, there remained an unexpended balance of several thousand dollars of the appropriation allocated to this division and, upon the recommendation of the local engineer that further expenditure was inexpedient, this balance was not expended. It was later returned to the Treasury upon the repeal of the act providing for the prosecution of the work. The keel boats, sometimes referred to as bateaux, mentioned in the evidence are described as flat-bottomed boats from 50 to 70 feet long, with a width of 6 to 8 feet, and a draft of about 2 feet. They were moved by poling or towing. They are variously referred to as having a carrying capacity of from 2 or 3 tons up to 10 or 12 tons. In use it is probable that the load varied with the stage and velocity of the stream flow and probably the carrying capacity increased with the improvements made in the channel. The evidence indicates that the use of these boats was local, by which it is meant that they were not used in continuous trips throughout the course of the river but were used on separated stretches of the river where conditions made their use permissible and desirable. The range of their movement was determined by the extent of the pools and the absence of steep shoals in that particular section of the river. For example, from Hinton upward for 23 or 24 miles the river has the least gradient in its course, about 4 feet per mile, with considerable pool water and few precipitous shoals. The same conditions obtain to a more or less extent on the section of the river for 25 or 30 miles above Radford. It was in these separated stretches of the river that practically all of the bateaux navigation took place and only • on them that there was any appreciable trade or commerce by boat. It is not meant to say that continuous movement of such boats between Hinton and the vicinity of Radford was impossible or did not occur. There is evidence which indicates that it did occur, but there is a vagueness about the extent to which it occurred and indications that such trips were irregular, were attended with difficulty, and formed no appreciable part of any commercial transportation which took place on the river. The most definite evidence of the extent of navigation on the river are the reports of the government engineers both before and after beginning improvement of the river in 1877, and these reports repeatedly state that the commercial navigation was local to separated stretches of the stream and that there was no continuous navigation. It is difficult to determine the extent to which the volume of the keel-boat traffic was affected by the improvements made on the river, but it does appear that the work done by the federal government in no way altered the local character of this navigation, and apparently it was not intended to. As stated, no attempt was made to create a continuous channel throughout the course of the river. The work was confined to improvement in each of several separated sections and was with a view to facilitating the keel-boat traffic in the limited localities where it already existed. The reports of the engineers in charge of the work indicate that their main object was to facilitate the carrying of local products by boat to the railroad outlet for that locality. In the annual report of the Chief of Engineers in 1883, after the work on the lower and middle divisions of the river had terminated, it is said: “It has hardly been practicable to accomplish at any one of the very many points needing improvement all that has been desirable, but the worst places have been worked upon to the greatest extent and efforts thus been made to increase the available navigability of the river over as long stretches as possible, and to increase the facilities for access of the greatest number to the railroads touching the river, and thus connecting with the eastern and western markets districts otherwise much isolated and hitherto dependent on teaming to railroad stations over long and bad roads.” In the same report, it is stated that there were then 17 keel boats in the lower division of the river above Hinton and 8 keel boats in the improved stretch of the middle division above Radford. Most of the boats in the lower division were engaged in transporting logs and lumber from mills along the improved portion of the river to Hinton where the railroad touched the river. Some grain, tobacco, etc., was shipped down to Hinton by. boat. References in this report to boat traffic on the lower division make no mention of any traffic originating in Virginia or at any point' higher up than 24 miles above Hinton. The traffic was clearly local to that stretch immediately above Hinton and entirely within the State of, West Virginia. Similarly the 8 boats in the middle division were in a traffic local to that section. The railroad shipping point there was at New River Bridge, just above Radford, and the principal traffic was boating pig iron down to this point from several small furnaces located 25 or 30 miles upstream. The above somewhat detailed description of the local nature of transportation on New river has been thought desirable because of the emphasis which the plaintiff places on the pig iron shipments to New River Bridge and upon the volume of lumber, etc., delivered by boat to Hinton. Conceding the accuracy of. the testimony in this regard, it is clear, I think, that in each instance the traffic was purely intrastate. It occurred in two widely separated stretches of the river, one over a distance of 25 miles or more entirely in Virginia, and the other over approximately the same distance in West Virginia; and between the two was a stretch of about 60 miles over which there was no appreciable commercial traffic, and little of any sort. Throughout the annual reports of the Chief of Engineers during the progress of the work on the river there are repeated statements emphasizing the local nature of the boat traffic and pointing out that facilities do not exist for continuous traffic. And, particularly in the later years, it is reported. that the latter condition could be obtained only by the adoption of a more general, more radical, and more expensive plan of permanent improvement than that attempted. In addition to traffic by keel boats evidence was introduced as to steamboats on New river. This attempt at steam navigation was likewise purely local and notably unsuccessful. Several such boats, more or less improvised, all of shallow draft, were built at Hinton and attempted to navigate the pool water immediately above that point. They seem never to have gone further than about 10 miles above Hinton and then only when the river was above normal stage. At least one boat propelled by a gasoline engine was built at Radford for attempted use on the improved stretch of the river above that point, but never got further from its home port than 6 or 8 miles upstream. This boat was about 50 feet long and 7 or 8 feet wide, with a flat bottom and drawing only 4 or 5 inches of water unloaded; when loaded the draft was about 12 inches. After about a year of sporadic and unprofitable operation around Radford, with various misadventures, the owner decided to take this boat down to Hinton where he had heard that there was a stretch of 8 or 10 miles of still water where conditions for operation were better. Waiting for a rise of 5 or 6 feet in the river, he floated the boat through. Tlje owner’s description of the difficulties of that trip strongly deny the availability of the river as an avenue of transportation. No better luck with the venture was had at Hinton and, after a few weeks, the boat was sold for a trivial sum to some one who took it off the river. These attempts represent the history of navigation on New river by boats mechanically propelled. In each instance they were local to short stretches of improved portions of the river and were of short duration. They were merely the manifestations of a spirit of impractical optimism, with perhaps a tinge of curiosity. Whether the purpose of those who originally inspired and promoted the plan of improving New river with federal funds was to make the river navigable throughout its course is not clear. But it is clear, I think, that the work done had no such purpose but was confined to improving separated stretches of the river to aid in local transportation to railroad points. After the work started, its scope was modified by making channels of lesser depth and lesser width than mentioned in the original plan; and as the work progressed the engineers in charge emphasized in their reports that no attempt was being made to make possible continuous navigation and that such a result could be accomplished only by some plan different and more elaborate than that attempted. The annual reports of the Chief of Engineers, containing reports made by engineers who were in charge of work on New river or otherwise familiar with it, are of great value in determining the character and extent of navigation on the river and the effect of the improvements made. I quote from some of them. In the report for 1879, Capt. J. W. Cuyler, engineer on the work, stated that, while the project of improving the river was practicable, it was necessary even for bateaux navigation and rafting “to adopt a more general and radical method to effect a permanent improvement than has heretofore been tried.” In the report of 1883 it is said: “The navigation of- the river not being continuous as yet, it is practically a feeder to the railroads which cross it and run along portions of it.” In 1885 it was reported that, from appropriations for the improvements on New river, there was a balance of $3,000 specially designated for use in the upper or Lead Mines division above Foster’s Falls “which are not passable”; that it had not been expended because there was no need f'o'r it so long as these falls were impassable, but that, when the railroad up Cripple creek had been completed, boats could touch this railroad above Foster’s Falls. And the report for 1886 says: “Hitherto the obstruction offered to navigation, by Foster’s Falls, about 6 miles below the mines, almost rendered it useless to expend the money appropriated for the division under consideration. The construction of the Cripple Creek Railroad, however, abrogates this and puts this division on a par with those of Greenbrier and New River Bridge, for its objective point is a railroad as well as that of the other two. * * * ” The report of the Chief of Engineers for 1887 contains the following: “As Congress has never given such a sum of money as would justify the proper beginning of a connected project for a continuous navigation from the North Carolina border to Hinton, the effort has been to apply such funds as were supplied in ameliorating the condition of the river.” And the view is expressed that, because of the unlikelihood of necessary appropriations, “it is supposed that the same policy should continue of partial improvement in connection with the railroads In the same report, Col. Craighill, in charge of the work, sáys: “For reasons often mentioned in annual and special reports, no attempt has been made to give a continuous navigation on New River to Hinton. * * * ” In 1891, the following appears in the course of a report made by Col. Craighill to the Chief of Engineers: “The last directions of Congress have been practically complied with by the expenditure of 75 pe'r cent of the last appropriation. The last work done, however, under those directions was a subject of ridicule by the community near its locality because of its evident uselessness, except to put money into the pockets of a few men and to lead to the probable control of a few votes. The expenditure of the remaining balance almost entirely in the excavation of rock on the limited part of the river to which it is specifically applicable under the law would not accomplish the smallest useful result and would in my judgment be a shameful waste of public money. It is recommended that it be covered into the Treasury as no longer required for expenditure.” In 1894 citizens of West Virginia, complaining that ore washings deposited in New river at mines in Virginia polluted the water, rendered it unfit for domestic use, destroyed fish and defaced scenery, invoked the aid of the federal government to stop the practice. The matter was the subject of sporadic controversy over many years, during which the War Department repeatedly pointed out that the matter was one of local concern, justifying no action by the federal government. In 1916 the Chief of Engineers addressed a communication to the Secretary of War reviewing this controversy and the action of his predecessors thereon and specifically agreeing with their findings. From this the following excerpts are quoted. Of the first complaints made the then Chief -of Engineers said: “The interests of navigation are not involved in this matter; the controversy is one purely of local concern. * * * “These are important matters to the people of West Virginia, and the injury inflicted is doubtless of a serious nature; but it is submitted that the General Government can afford no relief and provide no remedy, in the premises. The control of Congress is conferred by the commerce clause of the Constitution of the United States, and is to be exercised for the preservation and protection of navigation and the protection of commerce only. The existing laws were enacted, and are to be executed for this purpose only. “Congress has passed no statute to protect the fish or the scenery of New River, or the purity of its water, and unquestionably such a statute if passed would be invalid.” The controversy was then dormant for some years, but in 1910 it was renewed by a petition which added to the previous grounds of complaint the allegation that the ore washings caused deposits in the Kanawha river, thereby decreasing the navigable depths of the Kanawha and that they otherwise interfered with and obstructed navigation on the Kanawha. After investigation of this renewed complaint, the Chief of Engineers stated in part: “While this action is desired ostensibly in the interest of navigation on the Kanawha River, it is probable that the real basis of the request is the desire to preserve for the people of the State the use and enjoyment of the waters and scenery of New River. * * * “There has been no useful navigation on New River at any time, and none is possible under existing natural conditions, nor without the expenditure of vast and prohibitive sums in improvement work. While the discharge of ore washings in New River may produce conditions in the Kanawha injurious and obstructive to navigation, in the various ways alleged by petitioners, it is probable that in most instances the effect is too remote, and too much complicated with other causes to warrant the action desired by the petitioners. * * * ” These quotations are made at length in controversion of the contention that the federal government has, over a long period of years, recognized New river as a navigable stream and asserted its authority over it as such; and to show that throughout this extended controversy the navigability of New river was clearly denied by these officers of long experience and acquaintance with it. Even the complaining citizens made no assertion of the navigability of New river but only that navigation in the admittedly navigable Kanawha was affected. In 1913 the report of the Chief of Engineers on an examination of New river from Radford to Hinton was transmitted to Congress by the Secretary of War. House Document No. 1410, 62d Congress, 3d Session. After reviewing the character of the stream and the work previously done on it, it is said: “About $110,000 has been expended-on this river in improving the bars by building chutes or sluiceways through them. This afforded possible light-draft navigation and was used to some extent a number of years ago. But little has been done on the river since 1882. There is a very small commerce carried on in the lower part of -the reach under consideration by the use of so-called keel boats, which are towed or poled. There being no connection with the river below, the commerce is local. * * * “There is very little commerce on this river at present, and as there are no commercial or mining industries of importance, no material increase could be expected even if it were improved. Physical conditions are such that it could not be improved for useful navigation except at prohibitive cost.” On December 29, 1925, the Chief of Engineers made a report to the Federal Power Commission, wherein, after stating his understanding of what constitutes a navigable stream (and his definition is accurate), he says: “Having this rule in mind, I am of the opinion that the data and information disclosed in the Department’s records and reports do not support the conclusion that New River affords a channel for useful commerce or that it is navigable in fact. That section of the river between its mouth and the town of Hinton, having a fall of about 735 feet in a distance of less than 60 miles, may be dismissed from discussion. This Department has reported that the whole section is unfavorable for navigation and could not be connected with navigation in the Kanawha by the expenditure of any reasonable amount.” He then recites that surveys have been made of that portion of the river from Hinton upstream to the mouth of Wilson creek, a distance of about 190 miles, partly in West Virginia and partly in Virginia; and, after reciting the reports that the general characteristics of the river are those of a mountain stream, with alternating pools and rapids and with a rocky bed obstructed by boulders, he says: “The detailed, mile by mile, data given in the reports fully justify these concrete statements, and it seems unquestionable that the river was not navigable in fact in its original natural condition. “It is my opinion that these natural conditions were not changed by subsequent improvements, to the extent of making the river a highway for commerce.” After reciting these improvements and their local nature, he says: “It is evident that the work executed by the Government during the years 1877-1882 did not materially change the natural nonnavigable conditions of the river. The improvement effected was at most slight and fragmentary, and the small channels worked over are reported to have deteriorated due to the natural action of ice and the current. Continuous navigation on the river has never been possible, and whatever commerce has existed has been altogether local apparently confined to the 25 mile section in West Virginia, ending at Hinton.” I have chosen to quote at length from the contents of these various official reports because of the weight which I consider they should have on the issue here involved. They were made by responsible officers of the War Department in the course of their official duties and under conditions involving no thought of litigation or controversy. The facts recited are based upon actual knowledge of the river gained by surveying it, observing it, and directing the work upon it. So far as their statements may be said to be expressions of opinion, their source gives value to the opinion, for they are given by men scientifically trained and experienced and one of whose larger duties is in dealing with the navigable waters of the country ; men who are acquainted with comparable streams and who know of the requirements for commercial navigation and the engineering problems necessary to establish it where it does not naturally exist. Official findings and corresponding action on the part of the War Department are significant on the question of navigability. United States v. Oregon, 295 U.S. 1, at page 23, 55 S.Ct. 610, 619, 79 L.Ed. 1267. Finally it may be said that, in response to the declaration of intention filed before it with respect to the project now in question, the Federal Power Commission made a finding on June 1, 1927, that: “Said river in the part thereof involved in said declaration is not ‘navigable waters’ within the definition thereof in said act” (referring to the Water Power Act). It is clear that the question of navigability is one of fact which must be determined by the court upon all the evidence and that this duty cannot be abdicated ; nor is it performed by mere acceptance of the findings or opinions of other persons no matter how competent. But the determination of the issue of navigability permits a wide range of testimony and coming permissibly within this range, I think, are the opinions of persons who by training and experience are competent to speak. So far as the official reports from which quotation has been made express opinions on the navigability of the river, they are accepted merely as opinions to be considered with the other evidence and given such weight as they may be deemed entitled to. With the same thought in mind, the court permitted witnesses to testify at the trial giving their opinions on the'issue of navigability. In past times various dams and bridges have been constructed in or across New river and in some instances persons contemplating such constructions sought' permission or approval therefor from Congress or the War Department. I find no instance where this was refused when sought. This appears to have been done 'merely as a matter of precaution on the part of those sponsoring these projects, and to clothe them with a supposed authority for what it might be worth: As tending' to show recognition of federal control over the stream, this evidence loses any value due to the fact that in a' like number of instances dams and bridges have been constructed without seeking the permission of federal authority. And where this was done I find no instance wheré the federal government has sought to interfere with or prevent it. In other words; if permission was sought, it' was granted; if permission was not asked, no question was raised. I find also the following facts, pertinent to this and other phases of the case: That there is at present no- commerce or navigation on New river 'or, if any, it is entirely local and in'-a trivial and unnoticeable amount; that' the federal government has made no improvements on the. river since those-heretofore discussed and that it does not have in contemplation any improvements affecting the navigable, condition of the river; that it does have in contemplation certain projects for flood control, including the erection.at a point a few miles above Hinton of what is referred to as the Blue-stone Dam, the proposed purpose of which is to impound the waters of New river and control their flow in times of flood and in the aid of navigation upon the Kanawha. The Law as to Navigability,.,-;.' The cases which have arisen in this country involving the navigability of water courses are myriad in number. And, apparently, industrious counsel have cited all of them. Except as the decided cases have laid down general principles and have made clear the limitations upon them, it is rarely that one case can be greatly helpful upon the issue of navigability in any other case. Navigability is a question of fact, to be determined by the facts shown in each case. No power of control over navigable waters is specifically granted to the United States by the Constitution. In cases where it exists, it derives from the power in the federal government “to regulate Commerce with foreign Nations, and among the several States.” Const, art. 1, § 8, cl. 3. This power to regulate commerce being limited to that which is - foreign or interstate, it follows that the boundary of federal control over navigable waters is the regulation and protection of commerce of a similar nature. What is probably the most frequently quoted and the most acceptable definition of navigable waters is that laid down in the case of The Daniel Ball, 10 Wall. 557, 563, 19 L.Ed. 999: “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 ahd travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of' the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.” The rule stated in The Daniel Ball has frequently been repeated and approved down to the present time. United States v. Rio Grande D. & I. Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136; Leovy v. United States, 177 U.S. 621, 20 S.Ct. 797, 44 L.Ed. 914; Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 43 S.Ct. 60, 67 L.Ed. 140; United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465; United States v. State of Utah, 283 U.S. 64, 51 S.Ct. 438, 75 L.Ed. 844; United States v. Oregon, 295 U.S. 1, 55 S.Ct. 610, 79 L.Ed. 1267; and others. Obviously navigable waterways may lie entirely within the borders of a state and the navigation upon them be entirely intrastate ; or they may extend across state lines and be the avenues of commerce between the states. The test of'whether the waterway is navigable is the same in each case; but the source of governmental control is vastly different. As clearly indicated in The Daniel Ball, a navigable river is one which meets certain conditions as a highway for commerce; a navigable water of the United States is one which, fulfilling the same conditions, is a highway for commerce between the states. It is of the latter only that the federal government has plenary control, and this authority flows from its power to regulate •commerce between the states. The rule defining navigability above quoted from The Daniel Ball has never been essentially modified. Later cases have taken occasion to explain or clarify or interpret the language used, but not to alter it. In The Montello, 20 Wall. 430, 442, 22 L.Ed. 391, the rule of The Daniel Ball is quoted, approved, and applied, but it is made clear that the true criterion of navigability is the capability of use by the publ