Canal Lawsuits & the Dike Debacle

The dike that stretched from Rice’s Point to Minnesota Point in the 1870s, created to resolve a legal dispute between Duluth and Superior over the digging of the Duluth Ship Canal. (Image: Lake Superior Maritime Collection)

Almost immediately after Duluth began work cutting the canal in the fall of 1870, Superiorites—and indeed all of Wisconsin—went to work to end it. In September of that year Wisconsin congressman Cadwallader C. Washburn alerted General A. A. Humphreys, the Chief of U.S. Engineers, about the dredging and requested that the federal government take action to halt the work.

The U.S. Attorney General must have anticipated Duluth’s determination to dig the canal, because the very day the Ishpeming had resumed dredging, April 24, 1871, St. Paul’s Cushman Davis, acting on behalf of the U.S. Attorney General, filed for an injunction against the city of the Duluth and W. W. Williams & Co. The suit claimed that unless the dredging ended or a dike was built between Minnesota Point and Rice’s Point, the current of the St. Louis River would be diverted; the silt carried by the river would deposit at Superior Entry rather than further out into the lake as it normally did, rendering navigation through the entry impossible. The suit asked that the defendant “be enjoined and restrained from constructing said canal.”

The suit was served on May 4, 1871—five days after the canal had become a navigable waterway. The Minnesota circuit court judge, R. R. Nelson, had many business interests in Superior and so recused himself. Because of this the case was heard in Topeka, Kansas, by Supreme Court Justice Samuel Freeman Miller, who was “riding circuit” at the time (from 1793 until 1890, U.S. Supreme Court justices were obliged to travel to and preside over hearings in circuit courts throughout the country). In Topeka the attorneys general of Wisconsin and Minnesota squared off on behalf of their respective cities at the head of the lakes—that location was destined to become a major port, and both states wanted to reap the benefits.

Relying on the reports of the U.S. Engineers, Judge Miller sided with Superior. Sort of. While Miller’s decision agreed with Superior, it did not require Duluth to stop dredging, but allowed the canal construction to continue on the condition that Duluth also must build the dike referred to in the complaint. Miller went as far as to state that if Duluth built the dike to the government’s specification, the injunction “may be modified or dissolved.” In other words, build the dike and the injunction goes away.

The injunction was served on June 13, 1871. By then the canal stretched fifty feet wide and was eight feet deep. Workers began forming timber cribs to support the newly created shoreline on the north side of the canal. Money soon became a problem. Duluth had already spent $50,000 on the canal and hadn’t even begun to build the dike (pictured above). Attorney (and later judge) James J. Egan, acting as Duluth’s city attorney, wrote to General Humphreys, explaining the fledgling city’s plight and requesting that the federal government dissolve the injunction and issue a $100,000 bond to Duluth to complete the work—all on the condition that the canal would be completed by December 1, 1871. With Humphreys’ recommendation, the U.S. District Attorney dissolved the injunction in June that year. Not once did any of the legal action taken on behalf of the City of Superior stop the dredging and construction of the canal.

Just over a year old, Duluth was the terminus of a great railroad, with a breakwater and docks forming an outer harbor and a ship canal to allow ships the safer harbor of the docks along the shore of Rice’s Point on Superior Bay. Jay Cooke, whose vast wealth financed the Union during the Civil War, was the town’s best friend. The future looked very bright for Duluth. But across the bay in Superior the grumbling continued; its leaders believed that if they didn’t act to close the canal, their city’s future would be forever shrouded in the shadow cast by its neighbor on the hill.

The Dike Debacle

While the Ishpeming dredged the canal and lawyers battled the injunction, Duluthians had continued work on the outer breakwater begun by Cooke’s outfit, extending it to 950 feet by June of 1871; its older portion was repaired and bolstered with riprap, heavy rocks placed within the timber cribs.

The Northern Pacific Railroad took a deeper interest in the city on the hill that year, arranging to use the Lake Superior & Mississippi’s line to connect it to Duluth from its eastern terminus in Carlton. By winter Northern Pacific was building docks on Rice’s Point and along the shoreline inside the bay. Northern Pacific also arranged with the city to help pay to complete the canal and widen it to 250 feet. Its trains would also help construct the dike to satisfy the injunction’s dissolution.

The dike proved a problem from the start, for both Duluth and Superior. Superior’s Major D. C. Houston, the engineer in charge of harbor improvements who believed the dike a necessity, said that “It will be impossible to locate this dike anywhere so that someone will not object to it.” Indeed, the structure— designed to be continuous from shore to shore with no gates—would prevent any vessel entering the Duluth Ship Canal from reaching Superior and the St. Louis River; conversely, vessels entering through the Superior Entry would be cut off from the Duluth side of the bay. Houston recommended holding off the construction until after the spring of 1872.

General Humphreys disagreed with Houston, so the dike work commenced. Duluth City Engineer C. G. Franklin drew up specifications for the dike’s construction: a single row of pilings sixteen inches thick driven at eighteen foot intervals with four-inch wood panels driven and bolted between them. The dike would commence on Rice’s Point at Spruce Avenue and terminate on Minnesota Point at Chamber’s Street. But it didn’t have to be completed in December as stated in the injunction, as the City had received an extension to complete the dike by March 15, 1872.

Feeling the dike would be temporary, Duluth did not follow its own plans, driving the piles thirty feet apart instead of eighteen. When Major Houston inspected the work, he found piles poorly driven and improperly aligned—and the planks did little to hold back the flow of the St. Louis. Indeed, much of the dike had already broken up and floated away. Houston reported it was “of no value whatever” and that even if Duluth had followed the plans, “it would have been little better.”

Humphreys then warned Duluth that it must build the dike or else fill in the canal, so the city contracted with Roger Munger and R. A. Gray to build a new dike, this one made of cribbing and filled with riprap. But even before work on the more substantial dike commenced, Wisconsin governor Lucius Fairchild wanted it gone, arguing as early as June 1871 that it “cut off the people of Wisconsin from the free, unobstructed navigation of the public waters of Superior bay.” It would also cut Superior off from the railroads that terminated in Duluth. In December, as the first dike already lay in ruins, nearly one hundred Superiorites signed a letter urging the federal government to take action. At the end of January 1872, newly elected Wisconsin governor Cadwallader C. Washburn—who as a congressman initiated the first injunction—called upon the federal government to take action in any one of three ways: closing the canal, replacing the dike with another located closer to the canal that would provide greater access to the bay, or rebuilding the damaged dike to include gates.

Meanwhile Munger and Gray had put their men to work in January 1872. By March 25, Houston reported that a 10 foot wide dike of timber and rock stretched 4,490 feet from Rice’s Point toward Minnesota Point. Except for a single section 100 feet long, the final 800 feet connecting to Minnesota Point would be made of logs; that final section of cribbing was designed to be removed in the future. The dike was designed well enough, in Houston’s opinion, to satisfy the requirements of the injunction. A rail line sat atop the dike, not for passage between the points, but to carry riprap material to fill the crib work and secure the dike.

The work was dangerous. On April 20, 1872, the Minnesotian reported that a “Frenchman” working on the dike had been severely injured when another worker accidentally struck him with an axe, and that a “Swede from St. Paul named Hendrickson,” who had been riding on one of the gravel train’s dump cars, died when the car “accidentally and suddenly tilted on one side—throwing him down on the track where eleven cars passed over him, killing him instantly.” The paper blamed Hendrickson’s death on “the men or jealous rivals who made that unnecessary Dyke [sic] a necessity.” Despite incidents such as these, work continued until June of that year, but it was never completed, at least not to the recommended standards.

Not only was the work left incomplete, but saboteurs tried their best to stop it. On May 4, 1872, the Minnesotian reported an attempt had been made by “sacrilegious scamps” to blow a hole in the dike using gunpowder; the attempt had been unsuccessful because the bombers had placed the charge on top of the dike, not below the water line. The newspaper reported that repairs had already neared completion, then taunted and berated the attackers: “Children! Babes! When you come again with your powder in tin tubes, with your water-proof fuse inserted at the middle, bury it deep in the centre [sic] of the Dyke [sic] and then stand on top and touch it off. . . .”

That same month Superior once again asked for an injunction, this time to stop construction of the dike; it was quickly dismissed. Justice Miller determined that the circuit court in which the bill was filed did not have the jurisdiction to hear the case. The next day Miller visited Duluth and, while being treated to a tour of the harbor and dike, wondered aloud why Superior had waited until the dike had been constructed before asking for an injunction to restrain Duluth from building it.

While the new dike looked solid, problems lay beneath the surface. The bay’s depth varied greatly, and the dike began settling in deeper waters. After a July storm the receding waters created a current the dike couldn’t handle, and it broke near Minnesota Point. Knowing that their Wisconsin neighbors would take their failed injunction to a higher court, Duluth decided to invest no more time or labor—or money—into the dike.

The suit was indeed rejoined in the United States Supreme Court on November 1, 1872. The state of Wisconsin made the complaint; the defendants were listed as Duluth, Sidney Luce (Duluth’s mayor at the time), and the Northern Pacific Railroad, who had become a party when it took over construction

of the canal and allowed its trains to be used to fill in the dike cribbing. The railroad had never wanted to be involved with the dike, and it certainly didn’t enjoy being party to the lawsuit.

So Northern Pacific wrote to Governor Washburn in Wisconsin and requested he meet with the railroad’s president, G. W. Cass, to discuss removing the dike and making navigational improvements to the bay that would benefit all parties. Washburn then wrote Luce and invited a delegation from Duluth to join him to meet with the president of the Northern Pacific Railroad, at its headquarters in New York. J. B. Culver and B. S. Russell joined Luce as representatives of Duluth. The meeting couldn’t have gone better.

If Wisconsin would abandon its efforts to force Duluth to build a dike, Northern Pacific offered to extend its rail line from Rice’s Point to Connor’s Point in Superior and run it along the shoreline to the mouth of the Nemadji River and to connect the railroad to future wharves and docks. Northern Pacific would even build a bridge between the points and a grain elevator in Superior. The railroad’s intention, it declared, was to “place Duluth and Superior on equal footing as to leave the commercial world to elect for itself where to do business without any discrimination in favor of either place, delivering passengers and freight both at Superior and Duluth.”

Armed with this agreement, the delegations from Duluth and Wisconsin together headed for Washington, D.C. The group approached senators and congressmen from their respective states and worked together to appropriate funds for harbor improvements. They succeeded: Congress would give them $10,000 in March of 1873. The controversy was settled and the Supreme Court suit dismissed. It looked like the towns had found a way to come together. The St. Louis River had already demonstrated that it was folly to try to keep them apart.

The dike was partially dismantled in July 1873; years of neglect finished the job, but not thoroughly. In 1956 the Duluth News-Tribune wrote that “spooners”—unmarried couples seeking privacy—who went boating in the harbor often used the ruins as an excuse, claiming “our boat got stuck on the dike” years before spooning motorists came up with “the car ran out of gas.”

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.