Canal Lawsuits & the Dike Debacle

S. F. Miller. (Image: Duluth Public Library)

Lawsuits Continue

Superior had good reason to feel that the lack of rail cost them commerce: In 1874 Major F. U. Farquhar, who had replacedHouston in charge of the Duluth and Superior Harbors, reported that 290 ships had arrived at Duluth, loading over a million and a half bushels of wheat from Elevator A and its new neighbor in the outer harbor, Elevator Q (later called “Elevator D”), as well as tons of lumber milled on Rice’s Point, accessed by entering the bay from the ship canal. Duluth was still a long way from the bustling harbor it would become, but a far cry better than Superior: the report indicated that not a single vessel used her port that year.

By December 1874, Superior had had enough, and the state of Wisconsin filed a bill of complaints against the City of Duluth and Northern Pacific Railroad asking that the canal not only be closed, but filled in completely to “restore the current of [the St. Louis] river to its accustomed and natural channel.” They used the same old argument, the only one they had, despite the lack of evidence that the canal’s affects on the river’s current had been detrimental in any way, not to mention that federally funded improvements had kept the Superior side of the dike fully operational.

The Duluth defense pointed out as much, bolstering its argument with the fact that federal funds had been used to improve the canal and build and repair its wooden piers—why would the federal government order the destruction of infrastructure in which it had already invested?

It took some time before that defense would be heard. The case had been delayed when Northern Pacific failed to answer the complaint in time; the company asked for and received an extension, and the defense it finally delivered was nearly identical to Duluth’s. The case was further delayed by the time it took to gather and transcribe testimony from engineers who had monitored the bay in previous years.

Twice during the months it took to gather testimony, Congress appropriated funds for improvements in the Duluth harbor, primarily dredging. In August 1876 the second appropriation, in the amount of $15,000, came with a guarantee: it was for work to improve the outer harbor, but on the condition that it “shall be without prejudice to either party in the suit now pending between the State of Wisconsin, plaintiff, and the City of Duluth and the Northern Pacific Railroad Co., defendants.” In other words, even if Wisconsin won the case, that $15,000 would be spent on improvements in Duluth.

When the U.S. Supreme Court finally heard the complaint in October 1877, the case both began and ended with surprises. First, at some point prior to the hearing—perhaps even at the onset of the hearing itself, sources aren’t clear—Wisconsin dismissed Northern Pacific as a defendant (accounts are as vague

about why this action was taken as they are about when it occurred). Then Associate Justice S. F. Miller—whose 1871 decision over Wisconsin’s initial request for an injunction called for the dike’s construction—surprised everyone with his decision: He couldn’t care less about the St. Louis River’s current.

The very points of contention Wisconsin and Duluth had argued over for seven years—whether the mouth of the river emptied into St. Louis Bay or Superior Bay, whether the bays were part of the lake or the river, etc.—he considered “immaterial.” And he flat out failed to address whether Wisconsin had any legal right to the waters of the St. Louis River. All that mattered to him was that the U.S. had not only approved of the canal’s construction, but by virtue of its financial investments in it had also “taken possession and control of the work” on it. And this took the decision out of his hands, but not out of his jurisdiction:

“When Congress appropriates $10,000 to improve, protect and secure this canal this court can have no power to require it to be filled up and obstructed. While the engineering officers of the government are under the authority of Congress doing all they can to make this canal useful to commerce and to keep it in good condition this court can owe no duty to a state which requires it to order the City of Duluth to destroy it. These views show conclusively that the state of Wisconsin is not entitled to the relief asked by her bill and that it must therefore be dismissed with costs.”

And just like that, it was all over. For good: the state of Wisconsin on behalf of Superior never again filed suit asking for the canal’s closure. Were Superiorites bitter? Historian and former Duluth City Attorney J. D. Ensign hints at it: “Our neighbors were not so happy in those days as they are now,” he wrote in 1898. As evidence that old wounds had healed he provided a few words he attributed to “an old citizen of Superior”:

When Duluth had a railroad and Superior had none, when Duluth had business and commerce and Superior had none, it was hard to keep still and Wisconsin raised questions on the canal, etc., and kept a belligerent attitude now happily ended.

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