the second priority, and so on. The riparian system restricts the use of the water to riparian lands; the priority or appropriation system does not.''46

48

The power of the States to change the common law rule is subject to only two limitations, viz.: first, that in the absence of specific authority from Congress, a State cannot by its legislation destroy the rights of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters so far as may be necessary for the beneficial uses of the government property; and, second, that it is limited by the superior power of the General Government to secure the uninterrupted navigability of all navigable streams within the limits of the United States." The water rights by prior appropriation were given formal Congressional sanction and recognition by the Act of July 26, 1866, c. 262, maintaining and protecting the owners of rights to the use of water on the public lands for mining, agricultural, manufacturing and other purposes acquired by priority of possession; the Act of July 9, 1870, c. 235,* providing that patents granted or pre-emption or homesteads allowed should be subject to water rights acquired or recognized under the Act of 1866; and the Act of March 3, 1877, c. 107,5o providing that surplus water on the public domain shall remain and be held free for appropriation and use of the public for irrigation, mining and manufacturing purposes, subject to existing rights. These acts are nothing more than the voluntary recognition of a pre-existing right of possession, which the Government was by its tacit acquiescence bound to protect, rather than the establishment of a new right.51

The rule of priority of appropriation is in force to its full extent in seven States-Colorado, Utah, Idaho, Wyom

46 Address by Mr. L. Ward Bannister before the Colorado State Bar Association, July 11, 1914, Sen. Doc. 572, 63d Cong., 2nd Session.

47 U. S. v. Rio Grande Dam and Irrigation Co., 174 U. S. 690.

48 Rev. St. Sec. 2339. 49 Rev. St. Sec. 2340.

50 19 Stats. 377.

51 Jennison v. Kirk, 98 U. S. 453; Broder v. Natoma Water Co., 101 U. S. 274; Gutierres v. Albuquerque Land and Irrigation Co., 188 U. S. 545; Boquilla Cattle Co. v. Curtis, 213 U. S. 339; Bean v. Morris, 221 U. S. 485.

ing, Nevada, New Mexico and Arizona. In California, Montana, Washington, North Dakota, South Dakota, Nebraska, Oklahoma, Oregon and Texas, it is only partially in force, the riparian system being also present to some extent. In consequence, there have grown up two separate doctrines as to the priority system, which have become commonly known as the California and Colorado doctrines.

The former doctrine has been expounded in the following language:

"Stated briefly, that doctrine is that while a stream is situated on the public lands of the United States, a person may, under the customs and laws of a State and the legislation of Congress, acquire by prior appropriation the right to use the waters thereof for mining, agricultural, and other beneficial purposes, and to construct and maintain ditches and reservoirs over and upon the public land, such rights being good against all other private persons, and by statute good against the United States and its subsequent grantees, but that, when a grantee of the United States obtains title to a tract of the public land bordering on a stream, the waters of which have not been hitherto appropriated, his patent is not subject to any possible appropriation subsequently made by another party without his consent. In other words, it is held under that doctrine that the rules of prior appropriation, founded upon local customs and laws ratified by congressional legislation are confined in this operation to the public domain of the United States. . . It is held in that State (Montana) that the absolute title to a water right can only be acquired by grant, express or implied, of the riparian owner of the land and water, and the common law rule that assured to a riparian owner the right to the reasonable use without substantial diminution in quantity and quality of the water flowing by or over his land is abrogated to the extent only that under the doctrine of prior appropriation a riparian owner, or one having title to a water right by grant from him, is allowed to use the water in a manner that at common law would be deemed unreasonable. Upon that theory the right acquired by prior appropriation on the public domain is held to be founded in grant from the United States government as owner of the land and water,52 under the Acts of Congress of 1866 and 1870."53

The Colorado doctrine holds that, during the territorial period of the priority States the sovereign jurisdiction over the waters was vested in the United States and appropriation rights acquired during that time were derivable ex

52 Italics mine.

VOL. L.

53 Willey v. Decker, 11 Wyo. 496, 73 Pac. 210; 100 Am. St. Rep. 939. 57

clusively from the Federal Government; nevertheless, upon being admitted into the Union, the States acquired by virtue of their sovereignty, the exclusive power to dispose of appropriation rights to the use of water not inconsistent with the rights previously granted by the Federal Government, and that since that time, an appropriator does not receive his water right as the grant of a pre-existing property right in and from the United States, but as something conferred upon him by the sovereign power of the State.

We have, then, two theories, the one placing the authority to dispose of the waters of streams bordering on the public domain in the Federal Government; the other placing the authority in the several States, denying the grantee of land from the government any right to waters flowing through, and asserting that such rights belong to and remain in the State.5

55

As between these two theories the United States Supreme Court has yet to render a decision, and no conclusion can be drawn as to its views on this point from any of its utterances, for these so far as they bear on the point, are conflicting. Indeed on a petition for a rehearing of the case of Donnelly v. U. S.,56 in which the Court had said, among other things, that the title to the bed of a non-navigable stream, the Klamak River, was vested in the United States by the Act of California of April 13, 1850, adopting the common law, and thereby transferring to all riparian proprietors or confirming in them the ownership of the nonnavigable streams and their beds-the Court recalled this

54 Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; Smith v. Deniff,-Mont.60 Pac. 398, 81 Am. St. Rep. 408; Nevada Ditch Co. v. Bennett, 30 Ore. 59, 45 Pac. 472; Lone Tree Ditch Co. v. Cyclone Ditch Co., 15 S. Dakota 525.

55 Farm Investment Co. v. Carpenter, 9 Wyo. 110, 50 L. R. A. 747, 87 Am. St. Rep. 918, 61 Pac. 258; Wheeler v. Northern Colorado Irrigation Co., 10 Colo. 582, 3 Am. St. Rep. 603, 17 Pac. 487; Fort

Morgan Land and Canal Co. v. So. Platte Ditch Co., 18 Colo. 1, 36 Am. St. Rep. 259, 30 Pac. 1032; Coffin v. Left Hand Ditch Co., 6 Colo. 443; Willey v. Decker, 11 Wyo. 496, 100 Am. St. Rep. 939, 73 Pac. 210; Clough v. Wing, 2 Ariz. 371, 17 Pac. 453; Drake v. Earhardt, 2 Ida. 750, 23 Pac. 541; Stowell v. Johnson, 7 Utah 215, 26 Pac. 290; Albuquerque Land and Irrigation Co. v. Gutierres, 10 N. M. 177, 61 Pac. 357.

56 228 U. S. 243.

"We have

part of their opinion, giving as their reason: passed upon a question that was not adequately argued, and which in its consequence involves important interests other than those of the plaintiff in error.

9957

60

Nevertheless, it would seem clear that the jurisdiction of the United States over the public domain is of a proprietary rather than a sovereign character,58 and that the sovereignty is in the respective States. And sovereignty should certainly carry with it the ownership and control of the waters within the State. The cases sustaining the doctrine of prior appropriation and acquiescing in its application to the lands of the United States would seem to establish that the sovereignty and control over, and paramount title to, the waters in a stream are in the State.59 Moreover, this would seem to be supported by the fact that the Supreme Court has recognized the power of the State to legislate even as to navigable streams until Coongress has taken measures. In Woodruff v. No. Bloomfield Gravel Mining Co., it was said: "Upon the cession of California by Mexico, the sovereignty and proprietorship of all the lands within its borders in which no private interests had vested passed to the United States. Upon the admission of California into the Union, upon an equal footing with the original States, the sovereignty for all internal municipal purposes and for all purposes except such purposes and with such powers as are expressly conferred upon the National Government by the Constitution of the United States, passed to the State of California. Thenceforth, the only interest of the United States in the public lands was that of a proprietor, like that of any other proprietor, except that the State, under the express terms upon which it was admitted could pass no laws to interfere with their primary disposal, and they were not subject to taxation. In all other respects, the United States

57 Donnelly v. U. S., 228 U. S. 708. 58 Gould v. Hudson R. Co., 6 N. Y. 540.

59 Jennison v. Kirk, 98 U. S. 453; Broder v. Natoma Water Co., 101 U. S. 274; Gutierres v. Albuquerque

Land and Irrigation Co., 188 U. S. 545; Boquilla Cattle Co. v. Curtis, 213 U. S. 339; Bean v. Morris, 221 U. S. 485.

60 18 Fed. 753.

stood upon the same footing as private owners of land." No better statement of the case could be presented. It is true that in the case of United States v. Winans and Winters v. United States 62 the United States was held to have the power to reserve to Indian tribes certain rights in the waters of streams within the boundary of a State before the admission of the State into the Union which rights could not afterwards be revoked by the State. But it is difficult to see that this is in conflict with the language cited above; for the reservations of water rights in these cases were examples of the exercise of the sovereignty which the Federal Government possesses over the territories.

To sum up, the United States may, in the exercise of its proprietary power over the public domain, lease its lands, riparian or otherwise, with all their appurtenances. But its interest in the waters of streams flowing past its lands and consequently its power to dispose of such waters, are subject to the control and regulation of the several States. The Ferris Bill, like the Shields Bill, is in its wording constitutional. It is drafted so as to authorize the government to dispose of the public lands, a perfectly legitimate object. But its purpose and effect, as pointed out by the Minority Report of the Senate Committee on Public Lands, is to lease, not only the lands, but the waters of the streams flowing past and "by conditions and restrictions in the lease to determine how and for what purposes the lessee shall use the water, as well as the land." As such, it infringes upon the sovereign powers of the States. ROGER HOWELL.

JOHNS HOPKINS UNIVERSITY,
Baltimore, Md.

61 198 U. S. 371.

62 207 U. S. 564.

63 S. R. 66, part 2, 64th Congress, 1st sess.