Pigeon River Improvement, Slide & Boom Company, a Minnesota corporation, brought this action against Charles W. Cox, Limited, a Canadian corporation, to recover tolls for the use of improvements which the Minnesota corporation had made in the Pigeon river. These improvements embraced sluiceways, booms, and dams, which were used by the defendant in driving, sluicing, and floating timber products. The case was removed to the Federal court, a demurrer to the amended complaint was sustained without leave further to amend, and the judgment of dismissal was affirmed by the Circuit Court of Appeals. 63 F.(2d) 567. The case comes here on appeal.
Pigeon river is a boundary stream between the State of Minnesota and the Province of Ontario, Dominion of Canada, at the northeast corner of Minnesota. The river is a small stream which has its source in lakes on the international boundary and flows in a southeasterly direction along that boundary for about forty miles, discharging at Pigeon Bay into Lake Superior. The boundary is approximately midstream. The defense against the charge of tolls is based upon article 2 of the Treaty of August 9, 1842-the Webster-Ashburton Treaty-which, after defining the international boundary, provides as follows:
'It being understood that all the water communications and all the usual portages along the line from Lake Superior to the Lake of the Woods, and also Grand portage, from the shore of Lake Superior to the Pigeon river, as now actually used, shall be free and open to the use of the citizens and subjects of both countries.'
When this treaty was concluded, the lower portion of the Pigeon river was impassable because of falls and rapids. On July 25, 1842, Mr. Ferguson, who had been surveyor to the commissioners under the seventh article of the Treaty of Ghent, thus described this part of the river in response to an inquiry by Mr. Webster: 'At the mouth of the Pigeon River there is probably about three hundred yards in length of alluvial formation; but the river above that, as far as to near Fort Charlotte, runs between steep cut rocks of basaltic or primitive formation, and is a succession of falls and rapids for nearly its whole length-the last cataract, which is within about a mile of its mouth, being almost one hundred feet in height.' Below Fort Charlotte on the Pigeon river, communication with Lake Superior was by means of a trail about nine miles long running south of the river, and some distance from it, which was known as the Grand portage and was so described in the treaty. In Mr. Webster's communication to Lord Ashburton of July 27, 1842, summarizing the understanding which had been reached as to the boundary and setting forth the proposed stipulation as to water communications and portages which was incorporated in the treaty as above quoted, he said: 'The broken and difficult nature of the water communication from Lake Superior to the Lake of the Woods renders numerous portages necessary; and it is right that these water communications and these portages should make a common highway where necessary for the use of the subjects and citizens of both Governments.' At the time of the conclusion of the treaty, this was the highway of commerce, used principally by fur traders, between the Great Lakes and the country to the north and northwest. But the Pigeon river itself prior to the improvements here in question, as alleged in the complaint and admitted by the demurrer, 'was at all times incapable of use for the driving, handling and floating of logs, pulp-wood and timber.' Pigeon River Improvement, Slide & Boom Company, which for convenience we may call the Pigeon River Company, was incorporated in 1898 under the general laws of Minnesota. These laws purported to empower the Pigeon River Company to improve streams by erecting sluiceways, booms, dams, and other works; to acquire structures already erected together with necessary rights of way, shore rights, land and lands under water; to operate its works so as to render the driving of logs practicable; and to collect 'reasonable and uniform tolls upon all logs, lumber and timber driven, sluiced or floated' on the streams so improved. The company was also authorized, in the case of a boundary stream, to purchase stock in a corporation created in an adjoining state or country for similar purposes upon the same stream, or to unite with such a corporation, upon conditions stated. Acting under this authority, the Pigeon River Company took possession of the portion of Pigeon river within the State of Minnesota and improved it by erecting sluiceways, booms, and dams on the Minnesota side of the international boundary.