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Show In ( Leovy Leavy ) V . ( United Uizited ) States 204 , supra , the Court does not hold , that Red Pass was not water of the State of Louisiana ( I' I ) In ( Bretver-Elliott BretverElliott Brelver-Elliott BrelverElliott ) Oil & Gas Co . et al . V . United States et al , 260 U . S . 77 , the Court , after stating at page 86 its well settled rule that a river is navigable when used or susceptible of being used in its ordinary condition as a highway for commerce over which trade and travel are or may be conducted in the customary modes of trade and f travel on water and that the mode or craft employed in i conducting that commerce is immaterial , disposes of the question of the navigability of that stretch of the Arkansas River in controversy by saying that it will not disturb the finding of the two lower courts with reference to that fact . It then calls attention to the express grant made to the Osage Indians long before Oklahoma became a state , in which grant that portion of the bed of the river in ( con- con ) troversy was clearly and unambiguously conveyed to said grantee , and announces its conclusion that a title thus vested cannot be destroyed by later action on the part of ( Okla- Okla ) homa . The facts ( with ivith ) reference to navigability are set forth in the opinion of the trial court and will be referred to in the next succeeding paragraph . In United States v . ( Brewer-Elliott BrewerElliott ) Oil & Gas Co . et al , 249 Fed . 609 , various excerpts from testimony and evidence are recited at pages 617-623 . The area in dispute was above Grand River in Oklahoma . Gen . Sibert testified ( p . 621 . ) that he found no record ( "of of ) commerce above Grand River , " although he said ( "there there ) ( wus was ) an account of one or two boats going above it . " It appeared from a report received in ( evi- evi ) dence and dated February , 1879 , that from Wichita to Ft Smith the river had a navigable depth for the first 70 miles of 6 inches and for the ( remainder rernainder ) of the distance a depth of 12 inches ( "with with "'with with ) a channel much obstructed by snags . " ( An- An ) other report dated 1881 described ( "difficulties difficulties ) indicative of ; ( non-navigable nonnavigable ) conditions . " In 1884 a survey of the river was made from Wichita to Grand River and the report stated that ( "no no ""no no ) portion was or had been considered navigable , and that the mouth of the Grand River was considered the head of navigation , commerce for 40 miles below being practically nil , adding that a small boat of light draft ( had li-ad liad ) made the trip from Little Rock to Arkansas City on the crest of a short rise carrying no freight of consequence , and of no |
