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Show 201 canal ( -would would ) cross Mud Bayou at the point where this railroad bridge was located . The railroad companies ( re- re ) fused to comply with the order of the Secretary of War and sought an injunction against the frequent prosecutions that would follow such disobedience . The question involved was not whether Mud Bayou was navigable but whether it was ( "navigable navigable ) water of the United States . . " At page 932 the court says : ( "The The ) whole country from Mud Lake to the mouth of the bayou is nothing but a marsh , entirely ( unin- unin ) habited , ( providing- providing providing ) no article of commerce , , and fit for nothing but the pasturage of cattle . Mud Bayou from its source down to its mouth is nothing but a mere drain for the marsh . The entire course of Mud Bayou lies wholly within the state of Texas . It is not in any way or manner , nor has it ever been , nor in all probability will it ever be , an avenue of ( inter- inter ) state or foreign commerce , because there has never been any interstate or foreign commerce carried on or to be carried over it , and in the absence of some changes in its condition , or in the condition of the surrounding country , it will never be . " It was admitted by plaintiffs that it would be possible for ligilt draft boats to ( navigate -navigate navigate ) Mud Bayou , but from all of the facts and circumstances appearing in the case it was obvious that there was no reasonable probability of such navigation . Under the evidence in the case at bar the ( ques- ques ) tion whether , in order to meet the criterion of intrastate navigability , there must be either a history of former or present navigation or evidence of probable future ( navi- navi ) gation seems to us to be purely an academic question . However , Chief Justice ( Marshall's Marshalls ) admondition should be kept in mind when reading the opinion of the Court in ( Gulf G2tlf ) & 1 . . Ry . . Co . . V . . Davis . As already stated , the question , before the Court was whether Mud Bayou was ( "navigable navigable ) water of the United States . " Immediately following the excerpt from the opinion quoted on pages 148-9 of ( Complainant's Complainants ) brief , , attention is directed to the fact that the power of Congress arises under the commerce clause of the ( Consti- Consti ) tution ; ( "it it ) springs as an incident to the general power to regulate commerce , and being incidental springs , arrd only springs , in aid of commerce past , present , or actively ( po- po ) tential . " ( ( p . 933 . ) We will later advert to this question in |