American authorities, have been left to implication. Besides, the express gift of the power of eminent domain (sec. 51-xxxi.) which enables the Commonwealth to acquire property "for any purpose in respect of which the Parliament has power to make laws," evidences a broad view not only of the trade and commerce power, but of all the legislative powers vested in the Commonwealth. It is submitted, therefore, that subject to exceptions expressed or arising by clear implication from the language of the Constitution-such as the exception expressed in this section in favour of the user of water, and the exception implied in sec. 51-xxxiii. and xxxiv. against the acquisition of the railways of a State, or the construction of Federal Railways in a State, without the consent of the State -the trade and commerce power, with respect to navigable waters, has as wide a scope as in the United States. In this view, the Commonwealth may create waterways for inter-state commerce, or any other kind of highway except railways; and for that purpose it may not only improve the navigability of navigable streams, but may create navigability in naturally non-navigable streams, and may cut canals where no streams previously existed. CONCURRENT POWERS OF THE STATES -The navigation power, being part of the trade and commerce power, is not "exclusively" vested in the Parliament of the Commonwealth, and, therefore, the concurrent power of the States to deal with interstate navigation and with navigable waters will continue, subject to be ousted, in part or in whole, by Federal legislation. In the United States, the distinction between those parts of the commerce power which are in their nature exclusive, as requiring uniform legislation, and those which are concurrent, as admitting of auxiliary local legislation in the absence of Federal legislation (see pp. 527, 530, supra), has led to a subordinate distinction being drawn between streams which are wholly within the limits of a State, and streams which form the boundary between two States, or flow through two or more States. With regard to the former streams much wider concurrent powers of control have been conceded to the States than with regard to the latter. "It has always been the rule that, in the absence of Federal legislation, the States may prevent obstruction of navigable waters within their limits; may regulate the placing of buoys and beacons; the construction of wharves; and may deepen channels; change outlets of lakes and rivers, construct dams and locks to increase the depths of water or for other purposes, care being taken not to create serious impediments to the navigation of important waters; may construct canals around falls and improve their harbours and rivers generally, and may collect a charge from vessels using the improved navigation, as a compensation for the facilities thus afforded." (Prentice and Egan, Comm. Clause, p. 113; Mobile v. Kendall, 102 U.S. 691; State v. Illinois Central Railway, 146 U.S. 387; Pound v. Turck, 95 U.S. 459; Willson v. Blackbird Creek Marsh Co., 2 Pet. 245; Sands v. Manistee R. Improvement Co., 123 U.S. 288; Monongahela Nav. Co. v. United States, 148 U.S. 312; Huse v. Glover, 119 U.S. 543; Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196.) Thus it was held in Huse v. Glover, 119 U.S. 543, that if, in the opinion of a State, its commerce will be more benefited by improving a navigable stream within its borders than by leaving it in its natural condition, it may authorize the improvements though individuals may be inconvenienced; and that a river does not change its legal character as a highway if crossings by bridges or ferries are allowed under reasonable conditions, or if dams are erected under like conditions. "The erection of bridges with dams and the establishment of ferries for the transit of persons and property, are consistent with the free navigation of rivers." (Huse . Glover, at p. 547.) tax. In the same case it was held that a toll for the use of the improvements was not a "The fact that if any surplus remains from the tolls, over what is used to keep the locks in repair, and for the collection, it is to be paid into the State Treasury as a part of the revenue of the State, does not change the character of the toll or impost." (Huse v. Glover, at p. 549.) And a State may not only, in the absence of Federal legislation, improve the navigability of rivers, but may even obstruct navigability. Thus in Hamilton v. Vicksburg R. Co., 119 U.S. 280 (following Cardwell v. Bridge Co., 113 U.S. 205) it was held that persons acting soler the authority of a State may construct bridges over navigable streams The opinion of the Court contains the following passage:— "What the form and character of the betiges shucld he, that is to say, of what height they shocal te erected, and of what materials destructed, ani whether with or witboct draws, were matters for the regulation of the State, subject only to the int authority of Congress to prevent any unnecwary obstructing to the free In the streama Ünal CherrEM D'AITEDEs to sit ases, ari erentives its authority, the power of the State is putty. When the State provides for the firm and Charter of the straiture, its direct contri, except as against the action of ithout draws, abi irrespective of its effect As Dis tted been sal i by this Court, tetiges are merely connecting tumpikes, streets, and ruinals; and the aucmene over them say be malb greater that that e the streams which they rowe A reak the line of railroad lation me the wist daherige Lay produce mult greater inconvenience to the pa , than the distriction sanatino laused by a true with proper inws la sub cases, the Ixal autoreity at best determine which of the two modes of transportaboo stocki ne fanucrei ani how far either should be male subservient to the other. When a benige is lawful y tallt over a nangalde mver, its owners may have recourse to the avarts to protect it: and relief granted by the ovarts is not a regulation vá Texas and Paris. R. Car. Inter-state Transp. Co., 155 U.S. 585 The general principle, as finally settled by the scurts of the United States, is summed up by Prentice and Eas Comm. Clause, p 117 as follows:-" The questila whether te bit an, betritte should be permitted in Langable waters whilly within a State s essecnally legislative, and this, it is now bebi. in the absence of federal kesin e s actrial entirely by the States." The petotiples whi. the absence of federal legislatie, w di govern inter-state streams, are less early lensed in the United States—chledy bease federal legislati a cas, as a matter of fact, occupied the fall, and male the pesta vor of little practical Improtance. Authority seems to show, however, that the power of the Federal fe Terument to authorize chstreitues is in sih cases regarded as exclusive. Any Br Lge Case, 2 Wall 4.3; Pennsylvania r. Wheeling Bridge Co, 13 H.. 515; Prentice and Ean Can Casse, pp. 11s 21; Lews, Federal Power over Commene, p. 561 It s octeodei, however, by Dr Lewis Fed Pow. crer Comm pp 59 that the bestrid, whether a stream is within the limits of a State, or dows thringt or between two te mire Nates, is not the oneulas ve test of son, arrent setri -It is impossible to draw the banklary line between mers which are under the Mr.arent buttril of the State, and those which are national in their Carter. Such a rule as the ice above stateri, orcsering the natrual chariter of streams owing to the hoopianes it States, and the local chara.ter of those A stream is DIG DAT OM TE the pathical charter depens up stearate the Union as a while. ., State, is purely geograpical position: vigate to the people of value f general rules the State. Nevertheless, decisions in under to lange or itroes (bey are invented for utility; whenever a strict wiberence restit in a palpa de abeuntity they will be ababicei T. say that all rivers on the benn lanes of States are national in thara ter and require the exilative control of Congress, or that a State as pike physic Aangle streams entely within her toon 'Ares, pears, ani as reas withing bee, than that the majority of rivers of a particular Class are national ce are local in character. It thus appears that in the United States three classes of navigable waters are reognized: 1. Waters which are wholly within State, and do not connect with the 2. Waters which are wa diy within the limits of a State, but which connect (3.) Waters flowing on the boundaries of States or through two or more States. These are under the exclusive control of the Union. Or perhaps, following Dr. Lewis' principle of classification, it might be said that streams on which there can be no Federal navigation are exclusively controlled by the States; that streams on which Federal navigation is unimportant, may be controlled by the States until the Union chooses to exercise control; and that streams on which Federal navigation is important are exclusively controlled by the Union. APPLICATION OF AMERICAN DECISIONS.-In considering the applicability of the American decisions, it must be borne in mind that the Australian Constitution is explicit on two points on which the Constitution of the United States is silent. It provides (sec. 92) that after the imposition of uniform duties, inter-state commerce shall be absolutely free; and it provides (sec. 107) that every power of the State Parliaments, unless exclusively vested in the Federal Parliament or withdrawn from the State Parliaments, shall continue. No part of the commerce power (except customs, excise and bounties), or of the navigation power which it includes, is "exclusively" vested in the Federal Parliament; and therefore-in the absence of Federal legislation--it would seem that the States may exercise concurrent control over all navigable waters within their jurisdiction, except so far as the power to obstruct may be "withdrawn " from the State Parliaments by the constitutional provision that trade among the States shall be 'absolutely free” (sec. 92). That provision, it would seem, does not extend to prevent such incidental physical obstructions as may arise from the bona fide exercise by the States of the concurrent power to regulate inter-state commerce in the absence of Federal legislation. It is to be noted that the provision for freedom of trade is as binding on the Commonwealth as on the States. Any obstruction which would be unlawful under sec. 92, if created by a State, would be equally unlawful if created by the Commonwealth ; so that no argument for an exclusive power can be founded on that section. It would seem therefore that, in the absence of Federal legislation, the States may exercise concurrent control over all navigable waters within their jurisdiction; subject of course to all the constitutional conditions--such as the prohibitions against interfering with freedom of trade (sec. 92) and against discriminating against the citizens of other States (sec. 117)-by which the exercise of State power is controlled. § 418. "Abridge the Right of a State or of the Residents Therein." These words do not preserve the pre-existing rights of the States in their entirety. They forbid the Commonwealth to abridge the right of a State or its residents to the "reasonable" use of the waters for certain purposes; but they do not forbid the Commonwealth to abridge the right of a State or its citizens to the unreasonable use of the waters for those purposes, or to their use for other purposes. (See Notes §§ 419, 421, infra.) RIGHTS BEFORE FEDERATION.-Before Federation, it is clear that the legal rights of each Colony- -or of the residents of that colony, as against residents of another colony--to the use of the waters of rivers flowing through the colony, were absolute. There is no such thing as a riparian law between independent States; and as regards their direct relations with each other the several colonies were practically independent. Each colony received, as a part of its heritage, the common law of England; and consequently each colony had, as part of its law, the riparian common law of England. But that law became the law of each colony separately, and not law between the colonies, nor the general law of all the colonies. Each colony had power, by legislation, to alter the common law with regard to the rights to use the waters. Accordingly the Parliament of Victoria, by the Irrigation Act, 1886, No. 898, amended by the Act No. 983, and now re-enacted in the Water Act, 1890, sec. 293, dealt in a comprehensive manner with the control of river waters and watercourses, and riparian rights in connection therewith. And the Parliament of New South Wales, by the Water Rights Act, 1896, defined the rights of riparian proprietors in that colony, and, subject to those rights, vested in the Crown the right to the use and flow and to the control of water in all rivers and lakes. A precisely similar course of events happened in some of the American States. In each State the common law of riparian rights at first prevailed; but in the “ arid region,” where the use of the water is necessary for development, the common law, which entitled every riparian proprietor to the continued natural flow of the water, was found unsuitable, and by custom and State legislation a different rule was recognized, which permits, under certain circumstances, the appropriation of the waters of a flowing stream for mining, agricultural, and other purposes. United States v. Rio Grande Dam and Irrigation Co., 174 U.S. 690; and see CCLV. Deb., Melb., pp. 420-3; Prentice and Egan, Comm. Clause, p. ¡16 It was suggested at the Convention, by Mr. Gordon, Mr. Holder, and others, that there were some riparian rights between the colonies, based either upon common law, or upon international law, or upon international comity; and that relief might be had, if not in the colonial courts, at least by application to the Imperial Government. (See Conv. Deb, Adel, pp. 794. &c.; Melb., pp. 31. &c.; 405, &c.) So far, however, as these claims rest upon any suggestion of a legal right, they fail, not only, as was suggested in the Convention for instance, Conv. Deb., Meib., p. 493, for want of a tribunal, but for want of a law which such tribunal should administer. Nor does international law carry the matter any further. There is no principle which limits the rights of a State or its citizens to the use of waters flowing through the State. Free navigation of such waters, subject to certain conditions, is indeed generally a subject of treaty or convention between States, and it may be that a refusal to enter into any such convention might be a breach of international comity. (Pitt Cobbett, Cases on Internat. Law, p. 43; Walker. Pub. Internat. Law, p. 37; Hall. Internat. Law, § 39; Conv. Deb.. Adel.. p. 795; Melb., p. 419. But there is certainly no principle of international law, and no conventional usage, which purports to apportion the rights of States to appropriate the waters of rivers. The rights of irrigation do not seem to have even formed the subject of international questions in Europe. The only irrigating rivers in Europe are those of France, Italy, and Spain, which fow whelly within the territory of the States concerned, and have as yet afforded no opportunity for any difference of opinion on this point. The rivers in regard to which international agreements have been made, and of which the River Danube is an excellent example, are not rivers used for the purpose of irrigation, even to an infinitesimal extent. As a matter of fact, the only river, so far as we know, in which different States are interested, and in which this question has assumed any importance, is the River Rio Grande, dividing Mexico from the Unite i States of America, and there the Mexican Republic, so far as I know, has never been able to obtain any official recognition of its claims from the United States Government, although that river, in many portions, has been almost entirely deprived of its water at certain seasons of the year." Mr. Deakin, Conv. Deb. Melb., pp. 1970-71. Besides rivers flowing through two or more States, the question of boundary rivers needs to be discussed. In Australia the boundaries between States are mostly parallels of latitude and meridians of longitude; but there are two river boundaries — namely, that formed by the Murray River between New South Wales and Victoria, and that formed by the Dumares and MacIntyre Rivers between New South Wales and Queensland. The rule of international law as to boundary rivers is that where it is not proved that either of the riparian States possesses a good title to the whole bed, their territories are separated by a line running down the middle, except where the stream is navigable, in which case the centre of the deepest channel, or, as it is usually called, the Thalweg, is taken as the boundary." (Hali, Internat. Law, § 38; and see Rorer, Inter-State Law, p. 438.J In the case of the Dumaresy and MacIntyre Rivers (see Letters Patent of 6th June, 1859, p. 73, supra, this rule would undoubtedly apply; but in the case of the Murray River, special provision is made by the Australian Colonies Government Act (13 and 14 Vic. c. 59) and by the New South Wales Constitution Statute (18 and 19 Vic. c. 54). Sec. 4 of the Australian Colonies Government Act defined the territory of Victoria as 'bounded on the North and North-East by a straight line drawn from Cape Howe to the nearest source of the River Murray, and thence by the course of that river to the eastern boundary of the colony of South Australia " Sec. 5 of the Constitution Statute recited that doubts had arisen as to the true meaning of this description of the boundary, and declared and enacted that "The whole water-course of the said River Murray from its source therein described to the eastern boundary of the colony of South Australia is and shall be within the territory of New South Wales. Provided nevertheless that it shall be lawful for the Legislatures and for the proper officers of customs of both the said colonies of New South Wales and Victoria to make regulations for the levying of customs duties on articles imported into the said two colonies respectively by way of the River Murray, and for the punishment of offenders against the customs laws of the said two colonies respectively committed on the said river, and for the regulation of the navigation of the said river by vessels belonging to the said two colonies respectively. Provided also that it shall be competent for the Legislatures of the said two colonies by laws passed in concurrence with each other to define in any different manner the boundary line of the said two colonies along the course of the River Murray and to alter the other provisions of this section." Under this section the whole watercourse of the Murray, so far as that river forms the boundary, is within the territory of New South Wales; and it has been contended on behalf of New South Wales that this grant carries with it the entire control of the river, except so far as concurrent jurisdiction is expressly given to Victoria. The jurisdiction as to customs duties and customs offences will become obsolete on the imposition of a uniform tariff, and need not be considered. The only remaining jurisdiction of Victoria, it would seem, is "to make regulations. for the regulation of the navigation of the said river by vessels belonging to Victoria." This power to regulate the navigation of the river by particular vessels is clearly a much more limited right than the power to regulate navigation generally; it appears to mean the licensing and general control of the vessels themselves, and not to extend to physical control of the river except as regards wharves or landing places on the Victorian side. "Upon whatever ground property in the entirety of a stream or lake is established, it would seem in all cases to carry with it a right to the opposite bank as accessory to the use of the stream." (Hall, Internat. Law, § 38.) A water-course consists of the bed, the two banks, and the water; the bank being the uttermost part of the bed in which the river naturally flows. (Angell on Water-courses; Conv. Deb., Melb., p. 440.) The whole water-course being within the territory of New South Wales, it would seem that that colony had-subject to the Victorian right to regulate the navigation by Victorian vessels—the same control over its waters as over the waters of a river flowing through the colony. In respect of boundary streams, to which the title of both colonies depends on an Imperial grant, it may be that, notwithstanding the absence of an inter-colonial riparian law, there may be mutual rights to the appropriation of the water, which may be the subject of adjudication in a, court. See Stillman v. White Rock Manuf. Co., 3 Wood. and M. 538 (cited Rorer, Inter-State Law, p. 446) an interesting case decided in a Circuit Court of the United States. The parties owned mills on opposite sides of the River Pawcatuck, the centre of which is the boundary line between Connecticut and Rhode Island. Both were supplied with water-power from the river, and one of them, by a canal, diverted more than one undivided half of the water. Notwithstanding that the two mills were situated in different States, and in different circuits, it was held that an injury was committed for which an injunction could be had in the Circuit Court which had jurisdiction on the side on which the canal was cut. The decision was based on the principle that each party, as against the other, had a corporeal easement or right to an undivided half of the water of the whole stream, or a tenancy in common therein; and that there was therefore a remedy both for the direct injury to the easement and to the consequential injury to the lands adjoining. This, of course, is altogether different |