No. 15 Original, Brief of Defendant, the State of Utah, 1929

Brief of Defendant, 1929, p. 199

500 acres and in order to 199 reach their premises wished to deepen this channel so that it could be navigated . At page 300 the Court says : ( "The The ) court found that it was only after the Oil Company ( had liad ) established its works that any effort was made to navigate the channel by craft or burden ; that occasionally power boats and ( scoivs scows ) of light draft have been ( taken talcen ) up through San Pablo creek into the channel involved , ( mi on ) the flood tide , but ( tliat that ) it was impracticable to put the ( cJiannel channel ) to such use without deepening it for the purpose . " It thus appears that the public had no interest or concern whatsoever in this small channel which the Oil ( Com Com- Com ) pany desired to improve and make navigable for its own purposes , and no terminus there existed to which the ( pub- pub ) lic would have the right to go or where they would have a right to land without being guilty of trespass . In the lower court ( 242 Fed . 553 ) District Judge Van Fleet called attention to the fact that the legal title to the land in ( ques ques- ques ) tion ( "including including ) the soil under the channel itself , " which the Oil Company ( demanded dernanded ) the right to remove , was in ( plain plain- plain ) tiffs and that defendant ( had IiAd ) not challenged such title ; that title had come to plaintiffs grandfather in the early ( 70's 70s ) by grant from former owners under state patent . At page ( 559 0559 ) Judge Van Fleet says : ( "This This ) is largely a question of fact , to be ( deter deter- deter ) ¬ mined from the character of the stream , its situation and availability as a highway of commerce , and the other surrounding circumstances affecting the ( ques- ques ) tion . " In Toledo Liberal Shooting Co . et al . V . Erie Shooting Club , 90 Fed . 680 , it appeared that appellee had leased from the owners between 3000 and 4000 acres of land for the purpose of using it as hunting ground . This area ( in- in ) cluded a marshy body of water called Maumee Bay and a considerable part of its shore land . Appellant leased from the owners a comparatively small acreage completely ( sur- sur ) rounded by the ( laads lands ) leased to appellee . In the court below appellee had obtained an injunction restraining appellant from trespassing upon land covered by ( appellee's appellees ) lease . Appellant contended that Maumee Bay was navigable , and among other witnesses doubtless produced the witnesses