OCR Text |
Show susceptible of being used 215 , in their natural and ( ordi- ordi ) nary condition , as ( highways Iiighways ) for commerce , over which trade and travel are or may be conducted in the ( cus- cus ) tomary modes of trade and travel on water ; and further that navigability does not depend on the particular mode inwhich . such use is or may be ( had- had ) whether by steamboats , sailing vessels or ( flatboats- flatboats ) nor on an absence of occasional difficulties in ( naviga naviga- naviga ) tion , but on the fact , if it be a fact , that the stream in its natural ( and dhd ) ordinary condition affords a ( chan chan- chan ) nel for useful commerce . " In Alabama Power Co . V . ( Gulf G-2ilf G2ilf ) Power Co . et al , 283 Fed . 606 , the Court says , at page 613 : ( "The The ) capability of use by the public for purposes of transportation and commerce is the true criterion of the navigability of a river ( 'rather rather ) than the extent and ( manner viaimer ) of its use . U . S . v . The Montello , 20 Wall . 430 . " Under the law announced in the foregoing decisions , we earnestly contend that the evidence in the case at ! bar ( con- con ) clusively establishes the navigability in fact and in law of all stretches of river flowing over the beds here in ( contro contro- contro ) ¬ versy outside Cataract Canyon , which section will be ( dis- dis ) cussed under another title . The witnesses have testified without contradiction that they navigated these streams at all seasons of the year , at flood and at normal stage , at high and at low water . Some describe difficulties ( encoun encoun- encoun ) ¬ tered , but they reached their destination . ( Women Vomen ) and ( chil- chil ) dren have successfully and without mishap piloted boats at low water along stretches of the rivers where some of ( Complainant's Complainants ) witnesses say they encountered most trouble in navigating . ( Complainant's Complainants ) witness Mendenhall says that in all the years during ( which wbich ) he navigated these rivers he never lost a boat or suffered any mishap of any character . Upon the record in this case we cannot believe that ( Com Com- Com ) plainant can seriously contend that one familiar with these rivers ( will ivill ) encounter any serious difficulty in navigating them at any normal stage of water , or even at extreme low stage , except for short distances in certain very limited areas . We submit that if the most extreme testimony given ( by -by by ) members of government survey parties on the San Juan , Green and Colorado river stretches were to be accepted |