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Show 4708 think it is necessary to show that commerce has gone over a body of water in order to establish its navigability If it is, the language of the Supreme Court in every case, I think, where they have stated the rule, contains an awful lot of surplusage. They always take pains to say, " or susceptible off navigation". In view of the fact that counsel for the government's have put in so much evidence relative to conditions, and in view of their theory, and for that reason only, we are going to potentialities of the country. I don't think that the question whether there is a lot of commerce or a small amount of commerce, either present or potential, is at all controlling in determining navigability. I think an ocean in the north where probably there has only been one boat ever go over it, if it is susceptible of use in commerce, is a navigable water just as clearly at an early date as it may be at a later date when there will be some commerce, just so your Honor may know why we will offer some evidence along the same lines as counsel has offered it. THE SPECIAL MASTER: I think it is encumbent upon you both to offer it. MR. FARNSWORTH: I will say, in order to meet that contention, so if there should be merit to counsel's |
