after stating the case as above, delivered the opinion of the court.

It is contended that the demurrer to the bill for want of equity should have been sustained, for the reason that it failed to set forth facts showing an actual use of the river in navigation. The bill alleges that the river is a navigable stream — navigable for small steamboats; that it is *45 the only practicable highway for the residents along its upper waters to Aberdeen and other markets on Grays Harbor; and that it is used largely for floating logs and foreign products to market. The floating of foreign products to market could only be accomplished in some kind of water craft, and these averments are sufficient, we think, to show that the river was actually used in navigation. In The Daniel Ball, 10 Wall. 557, 563 , 19 L. Ed. 999 , it was said:

The appellee now contends, further, that there is no equity in the bill, for the reason that it specifies no violation of either the act of September 19, 1890, c. 907, 26 Stat. 454 , or the act of March 3, 1899, c. 425, 30 Stat. 1151 [U. S. Comp. St. 1901, p. 3541J ; that it contains no averment that the obstruction to navigation which is complained of was created since the passage of the act of March 3, 1899, which act prohibits the construction of obstructions, and not the maintenance thereof; and that the offense charged is not within the act of 1890 because that act is repealed by section 20 of the act of 1899 ( 30 Stat. 1154 [U. S. Comp. St. 1901, p. 3547]), and, further, that the cause of suit is not within the saving clause of the repealing section, for the reason that the bill does not allege facts to show that a cause of action had accrued before the passage of the act of 1899. The averment of the bill is “that the appellee has maintained and continues to maintain an obstruction to navigation in the navigable waters of said riverA Under this averment the proofs were admitted without the interposition of any objection on the ground that the bill failed to specify the dates at which the booms were constructed, or during what period they were maintained. Section 20 of the act of 1899 repeals only “all laws or parts of laws inconsistent with the foregoing sections,” and contains the proviso “that no action begun or right of action accrued prior to the passage of this act shall be affected by this repeal.” It is only necessary to quote the repealing clause to show that both the act of 1890 and that of 1899 are operative, as far as the present case is concerned. The provision of the earlier act prohibiting the maintenance of such Obstructions is not inconsistent with the later act prohibiting the erection thereof, and, again, it is evident that a right of action had accrued under the first act prior to the date of the repeal.

We think that the decision of the present case on the merits must be ruled by the case of United States v. Bellingham Bay Boom Co., 176 U. S. 211 , 20 Sup. Ct. 343, 44 L. Ed. 437 . We find it impossible to distinguish it from that case in any essential particular. The Bellingham Bay Boom Company had established a boom which interfered with navigation in the Nooksack river — a small river situate in What- *46 com county, emptying into Bellingham Bay, and thence into the Pacific ■Ocean, navigable by light water craft to Bynden, a distance of some 16 miles. In that case, as in this, the logging business was the principal business on the river, and there was the same disparity between its importance and that of the other traffic. In that case, as in this, there was no proof of the actual carriage of goods on the river in interstate commerce. In that case, as in this, groceries, supplies, clothing, and loggers’ tools were carried from the mouth of the river to the head of navigation by small steamboats, which on their return trips brought back farmers’ produce. In that case, as in this, the logging company attempted to justify its obstruction to navigation under the authority conferred by the act of the Begislature of Washington (1 Hill’s Ann. St. & Codes Wash. § 1592), which provided:

The court in that case affirmed the doctrine that the power of Congress to pass laws for the navigation of public rivers, and to prevent any and all obstructions therein, cannot be questioned, and held that the trial court was bound to decide whether the boom, as existing, was authorized by any law of the state, when such law was relied upon as justification for its creation and continuance. The court said in conclusion :

It is urged against the conclusiveness of that decision as applied to the present case that there is great difference in the size and usefulness of the two rivers, and that the fact that the Nooksack river was navigable, and was used for purposes of interstate commerce, was not questioned, but was taken for granted. It may be true that the Nook-sack river is a larger and deeper river than the Wishkah river, but, according to the proofs in the two cases, there is no very considerable difference in the amount of traffic carried on the rivers by boats. We find no warrant for the statement that the navigability of the Nook-sack river for purposes of interstate commerce was not questioned, but was taken for granted. The record in that case was before the Supreme Court, and it is not to be supposed that it was disregarded. The testimony as to the extent and nature of the commerce carried on on the Nooksack was not materially different from the testimony on the same subject in the present case. There was no allegation or proof of any interstate commerce of the Nooksack, nor was there proof even of the carriage of goods thereon in original packages, as they were imported from points without the state.

*47 The appellee, as did the court below, relies on the decision in Leovy v. United States, 177 U. S. 621 , 20 Sup. Ct. 797, 44 L. Ed. 914 . In that case the state of Louisiana, under the authority of the act of Congress of March 2,1849 (chapter 87, 9 Stat. 352 ), and other statutes giving it full power to authorize the construction and maintenance of levees, drains, and other structures necessary and suitable to reclaim swamp and overflowed lands within that state, and in the exercise of its police power so conferred, had caused to be constructed a dam across Red Pass Crevasse — a crevasse which had been made by the overflow of water from the Mississippi river. The crevasse had been formed some time before the date of the act. At the time when it was closed by the dam, only the smallest craft attempted to pass through it. There was some evidence, said the court, “that small luggers or yawls, chiefly used by fishermen to carry oysters to and from their beds, sometimes went through this pass; but it was not shown that passengers were ever carried through it, or that freight destined to another state than Louisiana, or, indeed, destined for any market in Louisiana, was ever — much less, habitually — carried through it.” The court, after reviewing its prior decisions, said:

Referring to the instructions which were given to the jury in the court below, the court said:

The court further said:

*48 The construction of the dám was further justified in the opinion of the court on the ground that it was a legitimate exercise of the police power of the state, and it was intimated that the trial court might well have taken judicial notice that the public health is deeply concerned in the reclamation of swamp and overflowed lands. Said the court:

There are expressions in the opinion on which the appellee relies which are said to indicate that the Supreme Court was of the opinion that, in order to justify the interference of the United States to prevent the obstruction of navigable water within a state, it must appear that the commerce on such water extends to or affects other states. But these utterances must all be taken in the light of what was actually decided by the unanimous opinion of the court in the Bellingham Bay Boom Co. Case but a few months before the decision in the Leovy Case. The court, in so quoting in the Leovy Case the language of Chief Justice Marshall in Gibbons v. Ogden, and affirming the power of the state of Louisiana to regulate and control the current of “small streams not used habitually as arteries of interstate commerce,” must have had in mind its prior decision, in which it had assumed jurisdiction to interfere with obstructions to navigation of water which, uniting with other waters, formed a continuous highway, over which commerce was or might be carried on with other states or foreign countries, within the definition of the court of “navigable waters of the United States” in the Daniel Ball Case, the language of which was subsequently quoted with approval in the recent case of The Robert W. Parsons, 191 U. S. 17 -26, 24 Sup. Ct. 8, 48 L. Ed. 73 . It is to be observed that the Leovy Case differs materially from the present case, in the fact that no freight was ever carried to market by the Red Pass Crevasse, and no commerce of any kind was conducted over it. It differs, also, in the fact that the state of'Washington has not authorized by its statutes a total obstruction to navigation in the Wishkah river. It has authorized only the construction of booms so placed as to allow free passage between the boom and the opposite shore for boats or vessels, while it has declared that such boom “shall not be construed to be an obstruction to the navigation of a stream if no unreasonable delay is caused thereby.” The appellant was entitled, we think, to the judgment of the court upon the question whether the boom was constructed and maintained in compliance with the state law.

The decree is reversed, and the cause is remanded to the court below for further proceedings in accordance with the views herein expressed.