the right to the control of the waters and had allowed the States to regulate the latter under the acts of 1866, 1870, and 1877.

A majority of the court of appeals held that the mere ownership of the power dam site did not empower the Federal Government to license the use of the waters of the Deschutes River either at the site of the proposed power dam or elsewhere contrary to Oregon law (p. 354). Circuit Judge Healy in dissenting, however, said the three congressional acts had no application to waters on reserved lands. This position was sustained by the United States Supreme Court in reversing the court of appeals, with Justice Douglas dissenting.

The case was decided on the narrow proposition that the Commission was authorized by section 4 of the Federal Power Act (16 U. S. C. 797 (e)) to issue a license "for a power project to use waters on lands constituting reservations of the United States located in Oregon." What those waters consist of is by no means clear. Ostensibly there are involved valid existing water rights, for the decision notes that the Commission said the project would be subject to all existing rights to the use of the waters of the river, whether perfected or not. However, the Court's only stated limitation with respect to the license is its proviso "that, as required by the act Iciting section 27], the use of the waters does not conflict with vested rights of others." In the words of the Court:

As in First Iowa Coop. ***, this case illustrates the integration of the Federal and State jurisdictions in licensing waterpower projects under the Federal Power Act***° Here *** the Commission has issued a comparable license for a power project to use waters on lands constituting reservations of the United States located in Oregon * * *. [W]e sustain the Commission (p. 437).

*** The western terminus of the dam is to occupy lands, within the Warm Springs Indian Reservation, which have been reserved by the United States for power purposes since 1910 and 1913. The eastern terminus of the dam is to be on lands of the United States which, at least since 1909, have been withdrawn from entry under the public land laws and reserved for power purposes ***. [T]he entire flow of the river will run through or over the dam into the natural bed of the stream ***. Variations and interruptions in the flow of the stream, caused by the temporary storage or use of water for power purposes, are to be controlled by a "reregulating dam" approved by the Commission and located on private property, to be acquired, about 3 miles below the power dam * * * (pp. 438, 439).

*** Here the jurisdiction turns upon the ownership or control by the United States of the reserved lands * * *. The authority to issue licenses in relation to navigable waters of the United States springs from the commerce clause of the Constitution. The authority to do so in relation to public lands and reservations of the United States springs from the property clause ** *.

In the instant case the project is to occupy lands which come within the term "reservations," as distinguished from "public lands." In the Federal Power Act, each has its established meaning. "Public lands" are lands subject to private appropriation and disposal under public land laws. "Reservations" are not so subject ***.

There thus remains no question as to the constitutional and statutory authority of the Federal Power Commission to grant a valid license for a power project on reserved lands of the United States, provided that, as required by the act, the use of the water does not conflict with vested rights of other *** (pp. 442–445). The Court was referring here to section 27 of the Federal Power Act which reads:

SEC. 27. That nothing herein contained shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein [41 Stat. 1077, 16 U. S. C. 81].

The Court next turned to the contention of Oregon that the Desert Land Act of 1877 and related acts constituted an express congressional delegation or conveyance to the State of power to regulate the use of the waters of the Deschutes River (pp. 446, 447). It said:

*** [T]hese acts are not applicable to the reserved lands and waters here involved *** The lands before us in this case are not "public lands" but "reservations" **** Accordingly, it is enough, for the instant case, to recognize that these acts do not apply to this license, which relates only to the use of waters on reservations of the United States (p. 448).

Said Mr. Justice Douglas, dissenting:

I would not suppose the United States could erect a dam on this nonnavigable river without obtaining its water rights in accordance with State law * * *.

The argument pressed on us by the United States is akin to the one urged in Nebraska v. Wyoming * * *. In that case, the United States struggled to be rid of the rule of law that made its water rights on nonnavigable streams of the West dependent on State law ***. We reserved decision as to whether under some circumstances the United States might be the ower of unappropriated water rights. But we held that under those acts the United States took its water rights like other landowners, viz, pursuant to State law governing appropriation * ** (pp. 452, 453).

4. U. S. v. Chandler-Dunbar Co. (229 U. S. 53 (1913)): By the act of March 3, 1909 (35 Stat. 815, 820), Congress declared that the ownership, in fee simple, of all lands and property lying between the St. Marys Falls Ship Canal and the international boundary at Sault Ste. Marie, Mich., was necessary to navigation. It directed the Secretary of War to institute condemnation proceedings for that purpose. The court awarded the Chandler-Dunbar Co. $652,332 for its power facilities and property, $550,000 of which was the estimated value of the undeveloped waterpower in excess of the supposed requirements of navigation. (See p. 74.) The company claimed the assessed damages for this should have been $3,450,000. The two questions for decision, according to Justice Lurton, were: (1) Whether the company had any private property in the waterpower capacity of the rapids requiring just compensation under the fifth amendment; and (2), if so, the extent of the waterpower right to be compensated.

The technical title to the beds of navigable streams is either in the State or the owners of bordering lands, depending on local law. However, said the court, this title is at best a qualified one and private ownership of the running water of a navigable stream is inconceivable. (See pp. 66 and 69.) So unfettered is the control of Congress over the navigable rivers that its judgment as to whether a construction in or over any such river is or is not a hindrance to navigation is conclusive. "Such judgment and determination is the exercise of legislative power in respect of a subject wholly within its control" (pp. 63, 64). See also Pennsylvania v. Wheeling Bridge Co. (18 How. 421-430 (1856)). With respect to compensation the court said (U. S. v. ChandlerDunbar Co., supra, p. 76):

Having decided that the Chandler-Dunbar Co. as riparian owners had no such vested property right in the waterpower inherent in the falls and rapids of the river, and no right to place in the river the works essential to any practical use of the flow of the river, the Government cannot be justly required to pay for an element of value which did not inhere in these parcels as upland. The Government had dominion over the waterpower of the rapids and falls and cannot be required to pay any hypothetical additional value to a riparian owner who had no right to appropriate the current to his own commercial use. These additional values represent, therefore, no actual loss and there would be no justice in paying for a loss suffered by no one in fact. "The requirement of the fifth amendment

is satisfied when the owner is paid for what is taken from him. The question is what has the owner lost, and not what has the taker gained." Boston Chamber of Commerce v. Boston (217 U. S. 189, 194, 195).

Further, the court said that if the primary purpose of the project was legitimate, it could see no sound objection to leasing power in excess of the needs of the United States (p. 73). Therefore, Chandler-Dunbar could not be heard to object to selling excess power proposed to be developed in connection with works for controlling or improving navigation.

5. U. S. v. Gerlach Live Stock Co. (339 U. S. 725 (1950)) involves, to a large extent, not only the historical development of California water law but also the historical development of the Central Valley project.

Gerlach owned uncontrolled grasslands along the San Joaquin River which depended upon seasonal floodings. Friant Dam put an end to these spring inundations which Gerlach claimed compensable as riparian rights.

The United States appears to have willingly compensated some riparian owners for similar losses of floodwaters on their grasslands but refused to compensate others, including Gerlach, contending that the project had been authorized under the commerce power as a measure for control of navigation. Gerlach and the other claimants contended that the construction of Friant Dam and the consequent taking of San Joaquin water rights had no purpose or effect except irrigation and reclamation (p. 731).

The Supreme Court noted that the earliest congressional legislation on the Central Valley project had declared it to be for the purposes of improving navigation, regulating flow, and providing storage for water (50 Stat. 844, 850; 54 Stat. 1198, 1199-1200). But, it also noted that Congress had expressly "reauthorized" the projects and had provided that they should "be reimbursable in accordance with the reclamation laws" (p. 732).

The overall project consisted of 38 major dams, hundreds of miles of mail canals and other project works. A formula for construction was approved by the President by which multiple-purpose dams were the responsibility of the Bureau of Reclamation and dams and other works for flood control were the responsibility of the Army engineers. The entire Friant and San Joaquin projects at all times were administered by the Bureau. The original plans called for purchase of water rights and included an estimate of their cost.

We do not believe it is essential to review here the history of California water law and the application of the Federal desert land laws, Homestead Act, and reclamation laws as set out by the Supreme Court. The discussion most important to this presentation involves the question of the navigation servitude and the question of compensation for water rights vested under State law. Said the Court: We think it clear that throughout the conception, enactment, and subsequent administration of the plan, Congress has recognized the property status of water rights vested under California law.

It is not to be doubted that the totality of a plan so comprehensive has some legitimate relation to control of inland navigation or that particular components may be described without pretense as navigation and flood-control projects. This made it appropriate that Congress should justify making this undertaking. a national burden by general reference to its power over commerce and navigation.

The Government contends that the overall declaration of purpose is applicable to Friant Dam and related irrigation facilities as an integral part of "what Congress quite properly treated as a unit." Adverting to United States v. Willow River Co. (324 U. S. 499); United States v. Commodore Park (324 U. S. 386); United States v. Appalachian Power Co. (311 U. S. 377); United States v. ChandlerDunbar Co. (229 U. S. 53), the Government relies on the rule that it does not have to compensate for destruction of riparian interests over which at the point of conflict it has a superior navigation easement the exercise of which occasions the damage. And irrespective of divisibility of the entire Central Valley undertaking, the Government contends that Friant Dam involves a measure of flood control, an end which is sensibly related to control of navigation (Oklahoma v. Atkinson Co., 313 U. S. 508).

Claimants, on the other hand, urge that at least the Friant Dam project was wholly unrelated to navigation ends and could not be controlled by the general congressional declaration of purpose. They point out that, although definitions of navigation have been expanded (United States v. Appalachian Power Co., supra), in every instance in which this Court has denied compensation for depriva tion of riparian rights it has specifically noted that the Federal undertaking bore some positive relation to control of navigation (United States v. Willow River Co., supra, 510; United States v. Commodore Park, supra, 391; United States v. Appalachian, Power Co., supra, 423; United States v. Chandler-Dunbar Co., supra, 62; and cases cited). And, referring to International Paper Co. v. United States (282 U. S. 399), United States v. River Rouge Co. (269 U. S. 411), and cases cited, they observe that this Court has never permitted the Government to pervert its navigation servitude into a right to destroy riparian interests without reimbursement where no navigation purpose existed.

Since we do not agree that Congress intended to invoke its navigation servitude as to each and every one of this group of coordinated projects, we do not reach the constitutional or other issues thus posed. Accordingly, we need not decide whether a general declaration of purpose is controlling where interference with navigation is neither the means (South Carolina v. Georgia, 93 U. S. 4) nor the consequence (Unitea States v. Commodore Park, supra) of its advancement elsewhere. Similarly, we need not ponder whether, by virtue of a highly fictional navigation purpose, the Government could destroy the flow of a navigable stream and carry away its waters for sale to private interests without compensation to those deprived of them. We have never held that or anything like it, and we need not here pass on any question of constitutional power; for we do not find that Congress has attempted to take or authorized the taking, without compensation, of any rights valid under State law.

On the contrary, Congress' general direction of purpose we think was intended to help meet any objection to its constitutional power to undertake this big bundle of big projects. The custom of invoking the navigation power in authorizing improvements appears to have had its origin when the power of the Central Government to make internal improvements was contested and in doubt. It was not until 1936 that this Court in United States v. Butler (297 U. S. 1) declared for the first time, and without dissent on this point, that, in conferring power upon Congress to tax "to pay the Debts and provide for the common Defense and general Welfare of the United States," the Constitution delegates a power separate and distinct from those later enumerated, and one not restricted by them, and that Congress has a substantive power to tax and appropriate for the general welfare, limited only by the requirement that it shall be exercised for the common benefit as distinguished from some mere local purpose. If any doubt of this power remained, it was laid to rest the following year in Helvering v. Davis (301 U. S. 619, 640). Thus the power of Congress to promote the general welfare through large-scale projects for reclamation, irrigation, or other internal improvement, is now as clear and ample as its power to accomplish the same results indirectly through resort to strained interpretation of the power over navigation. But in view of this background we think that reference to the navigation power was in justification of Federal action on the whole, not for effect on private rights at every location along each component project. Even if we assume, with the Government, that Friant Dam in fact bears some relation to control of navigation, we think nevertheless that Congress realistically elected to treat it as a reclamation project. It was so conceived and authorized by the President and it was so represented to Congress. Whether Congress could have chosen to taken claimants' rights by the exercise of its dominant navigation servitude is immaterial. By directing the Secretary to proceed under the Reclamation Act of 1902, Congress elected not "to in any way interfere with the laws of any State ** relating

*

to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder” (32 Stat. 388, 390).

We cannot twist these words into an election on the part of Congress under its navigation power to take such water rights without compensation. In the language of Mr. Justice Holmes, writing for the Court in International Paper Co. v. United States (282 U. S. 399, 407), Congress "proceeded on the footing of a full recognition of [riparians'] rights and of the Government's duty to pay for the taking that [it] purported to accomplish." We conclude that, whether required to do so or not, Congress elected to recognize any State-created rights and to take them under its power of eminent domain.

We are guided to this conclusion by the interpretation placed on Congress' acts by the Reclamation Bureau, which, in administering the project, has at all times pursued a course impossible to reconcile with present contentions of the Government. From the beginning, it has acted on the assumption that its Friant undertaking was a reclamation project. Even a casual inspection of its committee hearings and reports leaves no doubt that Congress was familiar with and approved this interpretation. Although the Solicitor General contends that, because of the navigation purpose remotely involved, deprivation of water rights along the San Joaquin is not compensable, we have observed that the plan as originally adopted and as carried out by the Bureau included replacement at great expense of all water formerly used for crops and "controlled grass lands" and purchase of that used on marginal pasturelands. It has consistently advised the Congress that it was purchasing San Joaquin water rights and appropriations have been made accordingly. Moreover, Congress and the water users have been advised that, in prosecution of the work, existing water rights would be respected (pp. 736-740).

6. F. P. C. v. Niagara Mohawk Power Co. (347 U. S. 239 (1954)): Prior to constructing its facilities, the power company, a Federal licensee, had purchased water rights valid under New York law, from two other companies. In 1948 the Commission began a proceeding under section 10 (b) of the Federal Power Act to determine the licensee's amortization reserve liability. The Commission ruled that payments by the licensee to the two companies, from which it purchased these rights, should go into the amortization reserve. concluded that Congress not only could constitutionally abolish local water rights on navigable streams without compensation but that it had done so, and that while the contested expenditure might be lawful or even obligatory as between the parties, it could not be allowed in computing a licensee's amortization reserve.

It

The Supreme Court disagreed, concluding that though the water rights were of a kind within the scope of the Government's dominant servitude, the Government had not exercised its power to abolish them. Accordingly, it held that the Federal Water Power Act of 1920 (41 Stat. 1063), as amended, had not abolished private proprietary rights, existing under State law, to use waters of navigable streams for power purposes. Therefore, the Commission was not justified in disallowing the expenses paid by the licensee for the rights purchased from other corporations in connection with the operation of the licensed project. Said the Court:

We are not required to determine the nature of the rights claimed by respondent except to recognize that they are usufructuary rights to use the water for the generation of power, as distinguished from claims to the legal ownership of the running water itself. They are rights to use the force of the fall of the water, coupled with an obligation to return the water to the river under specified conditions. The rights under consideration originally were attached to riparian lands above and below the falls. However, they long have been separated from such lands and, thus separated, they have been transferred or leased to respondent. Under the law of New York, they constitute a form of real estate known as corporeal hereditaments. The Commission does not now contest the purchase prices which have been paid for any of these rights. The Commission's present objection is limited to respondent's deduction, in the computation of its amor