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In 1853 the State, finding itself unable to complete the improvements, incorporated the Fox and Wisconsin Improvement Company to carry on the work, and this company made a deed of trust of all the unsold lands and of all the works of improvement. The company failed, the trust deed was foreclosed, and the property sold to a committee which subsequently became incorporated under the name of the Green Bay and Mississippi Canal Company. In 1870 this company deeded the entire property to the United States, reserving to itself the water power created by the dam and by the use of the surplus water not required for purposes of navigation. As to this reservation, the Court said: "The substantial meaning of the transaction was, that the United States granted to the canal company the right to continue in the possession and enjoyment of the water powers and the lots appurtenant thereto, subject to the rights and control of the United States as owning and operating the public works and that the United States were credited with the appraised value of the water powers and appurtenances and the articles of personal property. The method by which this arrangement was perfected, namely by a reservation in the deed, was an apt one, and quite as efficacious as if the entire property had been conveyed to the United States by one deed and the reserved properties had been reconveyed to the canal company by another." The power of the United States thus to dispose of the surplus water power was upheld.

Neither of these cases can be held to invest the Federal Government with the right to dispose of surplus water power under the commerce clause of the Constitution. The Kaukana Water Power Company case vests this right in the State, but it can hardly be argued from this that the rule should be applied as well to the Federal Government. In Green Bay and Mississippi Canal Co. v. Patten Paper Co., the right of the United States to dispose of the surplus water power did not come to it as part of its power to regulate navigation. In the words of the Court: "The legal

effect and import of the sale and conveyance by the canal company were to vest absolute ownership in the improvement and appurtenances in the United States, which proprietary rights thereby became added to the jurisdiction and control that the United States possessed over the Fox River." That is to say, the right of the United States to dispose of the water power came to it by regular conveyance from the State, so that it was not necessary to the decision of the case to investigate whether it had this power under the commerce clause.

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In U. S. v. Chandler-Dunbar Co., however, the doctrine of the Kaukana Water Power Company case as to the power of the State to dispose of water power was extended to the Federal Government. The case had to do with the Act of March 3, 1909, by which the entire St. Mary's River and the upland north of the ship canal was taken in condemnation proceedings "as necessary for the purposes of navigation of said waters and the waters connected therewith." The Court say:

"It is said that the 12th section of the Act of 1909 authorizes the Secretary of War to lease upon terms agreed upon, any excess of water power which results from the conservation of the flow of the river, and the works which the government may conduct. This, it is said, is a taking of private property for commercial uses, and not for the improvement of navigation. But aside from the exclusive purpose declared by the 11th section of the Act, the 12th section declares that the conservation of the flow of the river is 'primarily for the purposes of navigation, and incidentally for the purpose of having the water power developed, either for the direct use of the United States or by lease

through the Secretary of War.' If the primary purpose is legitimate, we can see no sound objection to leasing any excess of power over the needs of the government. The practice is not unusual in respect to similar public works constructed by State governments."

This, then, in the absence of any ruling to the contrary, defines the power of the government as to the development of water power on navigable streams. The primary purpose of any legislation to this end must be the improvement of navigation, and only incidentally may it have regard to the

36 229 U. S. 53.

development of water power. It would seem very questionable whether the Shields Bill is of this character. In form, indeed, it is so drafted; but it can hardly be doubted that its main purpose is rather the reverse, viz. : primarily for the development of water power and incidentally for the improvement of navigation. Senator Shields has said of it: "The power of Congress to enact this bill into a law depends altogether upon the commerce clause of the Constitution. The improvement of navigable rivers is, therefore, in a constitutional sense the primary object of the bill, although no one will furnish the money for such improvement unless he is allowed the power created by the dams constructed. The bill is so framed that the benefits to navigation must always be paramount. .. The object of the bill is to secure the development of water power. If the substance rather than the form of the bill is regarded, then, it is submitted, its constitutionality is of a very doubtful character.

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II. The power of Congress to legislate as to the development of water power on the public domain.

The Federal Government has no property in or control over the streams or water courses within the boundaries of the several States except as the owner of riparian lands and for the purpose of regulating interstate commerce. In Kansas v. Colorado,38 the State of Kansas brought an original suit to restrain Colorado from diverting the water of the Arkansas River for the irrigation of lands in the latter State so as to prevent the natural and customary flow of the river into and through Kansas. The United States thereupon filed a petition of intervention, basing its claim, not on any diminishing of the navigability of the rivers but on a right to control the waters of the river to aid in the reclamation of arid lands. The Court dismissed the intervening petition, holding that although Congress has general legislative jurisdiction over the Territories such that

37 Italics

mine; Congressional p. 4288.

Record, Mar. 8, 1916, v. 53, No. 66, 38 206 U. S. 46.

it may control the flow of waters in their streams, it has no power to control a like flow within the limits of a State except for the purpose of improving or maintaining the navigability of the stream; and that subject to this exception, the full control over these waters is vested in the State.

The extent of the control of Congress over the public domain is defined in the Constitutions as follows: "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States and nothing in this Constitution shall be so construed as to prejudice any claims of the United States or any particular State." "The full scope of this paragraph," says Mr. Justice Brewer,**

"has never been definitely settled. Primarily, at least, it is a grant of power to the United States of control over its property. That is implied by the words 'territory or other property.' It is true it has been referred to in some decisions as granting political and legislative control over the territories as distinguished from the States of the Union. It is unnecessary in the present case to consider whether the language justifies this construction. Certainly we have no disposition to limit or qualify the expressions which have heretofore fallen from this Court in respect thereto. But clearly it does not grant to Congress any legislative control over the States, and must, so far as they are concerned, be limited to authority over the property belonging to the United States within their limits."

Under this clause it may lease its lands, riparian or otherwise, with all their appurtenances; and it may legislate for their protection, though such legislation should involve the exercise of the police power.2 As to the water flowing by its lands, however, it has only such rights and privileges as are possessed by a private riparian owner at common law. Chancellor Kent states the common law rule as follows:

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"Every proprietor of lands on the bank of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his

46.

39 Art. IV, Sec. 3, Par. 2.
40 Kansas v. Colorado, 206 U. S.

41 U. S. v. Gratiot, 14 Pet. 526.

42 Camfield v. U. S., 167 U. S. 518. 43 Sturr v. Beck, 133 U. S. 541; Kansas v. Colorado, 206 U. S. 46; Lux v. Haggin, 69 Cal. 255.

lands, as it was wont to run (currere solebat) without diminution or alteration. No proprietor has a right to use the water, to the prejudice of other proprietors above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere ut currere solebat is the language of the law."44

In the mining and semi-arid States, the common law rule has been found inapplicable and instead there has been adopted the rule of public ownership and prior appropriation. Briefly stated, this allows a person, though not a riparian owner, to acquire by prior appropriation the right to use the waters of a natural stream and to construct and maintain the ditches and reservations necessary to carry the waters to his land, provided, that the use for which the waters are appropriated is a beneficial one. This system has been made necessary in order to cultivate lands by irrigation and in order to enable holders of mining claims to acquire the water requisite to the working of the mines." As can readily be seen it differs radically from the common law riparian system. "The fundamental principle of the riparian system is that of equality-equality among the riparian proprietors, not necessarily to equal amounts of water, but in the right to make what, for them respectively and under all the circumstances, is a reasonable use of the waters. The cardinal principle of the priority system, on the other hand, is discrimination-discrimination in favor of the oldest user, or as he is called, appropriator. When there are many riparian proprietors along a stream, the riparian system does as well by the most recent arrival as by the first, but the priority system awards prior rights to the different users to the extent of their respective applications to use, in the order of the age of their respective uses -to the first user or appropriator of water the first preference or priority to the water; to the second appropriator

44 Kent, 3 Com. 349, and see Head v. Amoskeag, 113 U. S. 9; Kansas v. Colorado, 206 U. S. 46; Elliott v. Fitchburg Railway Co., 10 Cush. 191.

45 Willey v. Decker, 11 Wyo. 496, 73 Pac. 510; Jennison v. Kirk, 98 U. S. 453.

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