imports that the water rights belong to another than the lienor, that is to say, to the landowner.

"The Federal Government, as owner of the public domain, had the power to dispose of the land and water composing it together or separately; and by the Desert Land Act of 1877 (ch. 107, 19 Stat. 377), if not before, Congress had severed the land and waters constituting the public domain and established the rule that for the future the lands should be patented separately. Acquisition of the Government title to a parcel of land was not to carry with it a water right; but all nonnavigable waters were reserved for the use of the public under the laws of the various arid-land States. California Power Co. v. Beaver Cement Co. (295 U. S. 142, 162). And in those States, generally, including the State of Washington, it long has been established law that the right to the use of water can be acquired only by prior appropriation for a beneficial use; and that such right when thus obtained is a property right, which, when acquired for irrigation, becomes, by State law and here by express provision of the Reclamation Act as well, part and parcel of the land upon which it is applied (pp. 94-96).

3. U. S. v. Rio Grande Irrigation Company (174 U. S. 690 (1899)): In 1897 the Attorney General filed a complaint against the Rio Grande Irrigration Co. to restrain it from constructing a dam across the Rio Grande at Elephant Butte and appropriating the waters for purposes of irrigation. The United States alleged that the impounding of the waters would seriously restrict the navigable capacity of the river contrary to the rights of the United States and to treaty obligations. It was also denied that the construction of this dam was authorized by law. The company contended that acts of Congress did authorize construction.

The Supreme Court stated that the Rio Grande within the limits of New Mexico obviously was not a stream which in its ordinary condition carried trade and travel, the ordinary flow of water being insufficient for regular transportation. However, it observed that if waters of a navigable stream were depleted at the sources, navigability in the lower parts of the river thereby would be destroyed. The court stated that it was not necessary to consider the treaty stipulations between the United States and Mexico. The obligation of the United States, it said, to preserve for its own citizens the navigability of its navigable waters was certainly as great as any obligation arising by treaty or international law. It noted that the unquestioned rule of the common law was that every riparian owner was entitled to the continued natural flow of the stream but it noted also that this rule could be changed by a State subject to two limitations:

(1) In the absence of specific authority from Congress a State could not by its legislation destroy the right of the United States as the owner of lands bordering on a stream to the continued flow of its waters, so far at least as might be necessary for the beneficial uses of the Government property.

(2) A State is limited by the superior power of the Federal Government to secure the uninterrupted navigability of all navigable streams. Power of the State to thus legislate for the interests of its own citizens was conceded until in some way Congress asserted its superior power. The question here was whether the 1866 act of Congress permitted this State legislation.

The Supreme Court held that the 1866 law, as amended, formed no basis for inferring that Congress intended to release its control over the navigable streams and to grant the right to appropriate the waters

of such rivers to such an extent as to destroy the navigability. Said the Court (p. 706):

*** To hold that Congress, by these acts, meant to confer upon any State the right to appropriate all the waters of the tributary streams which unite into a navigable watercourse, and so destroy the navigability of that watercourse in derogation of the interests of all the people of the United States, is a construction which cannot be tolerated * * *.

The Court further said that section 10 of the act of September 19, 1890 (26 Stat. 454), prohibited the creation of an obstruction, "not affirmatively authorized by law," to the navigable capacity of any waters of which the United States had jurisdiction. Whatever may have been the rights acquired under earlier laws with respect to use of waters from the Rio Grande, this 1890 act was held to have effectively prohibited a State from interfering with the navigability of the river by building a dam unless specifically authorized by an act of Congress. Accordingly, the building of the dam was enjoined. The import of this decision is stated by Mr. Justice Sutherland in Power Co. v. Cement Co. (supra, pp. 158-159). Subject to the exception noted, he said, the Court still recognized and assented to the appropriation of water under the acts of 1866 and 1877 in contravention of the common law rule. The following quotations indicate the reasoning of the Court:

Although this power of changing the common law rule as to streams within its dominion undoubtedly belongs to each State, yet two limitations must be recognized: First, that in the absence of specific authority from Congress a State cannot by its legislation destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters; so far at least as may be necessary for the beneficial uses of the Government property. 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. In other words, the jurisdiction of the General Government over interstate commerce and its natural highways vests in that Government the right to take all needed measures to preserve the navigability of the navigable watercourses of the country even against any State action. It is true there have been frequent decisions recognizing the power of the State, in the absence of congressional legislation, to assume control of even navigable waters within its limits to the extent of creating dams, booms, bridges, and other matters which operate as obstructions to navigability. The power of the State to thus legislate for the interests of its own citizens is conceded, and until in some way Congress asserts its superior power and the necessity of preserving the general interests of the people of all the States, it is assumed that State action, although involving temporarily an obstruction to the free navigability of a stream, is not subject to challenge ***.

All this proceeds upon the thought that the nonaction of Congress carries with it an implied assent to the action taken by the State.

Notwithstanding the unquestioned rule of the common law in reference to the right of a lower riparian proprietor to insist upon the continuous flow of the stream as it was, and although there has been in all the Western States an adoption or recognition of the common law, it was early developed in their history that the mining industry in certain States, the reclamation of arid lands in others, compelled a departure from the common-law rule, and justified an appropriation of flowing waters both for mining purposes and for the reclamation of arid lands, and there has come to be recognized in those States, by custom and by State legislation, a different rule-a rule which permits, under certain circumstances, the appropriation of the waters of a flowing stream for other than domestic purposes. So far as those rules have only a local significance, and affect only questions between citizens of the State, nothing is presented which calls for any consideration by the Federal courts. In 1866 Congress passed the act of July 26, 1866 (ch. 262, sec. 9, 14 Stat. 253; Rev. Stat. sec. 2339):

"Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right-of-way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage."

The effect of this statute was to recognize, so far as the United States are concerned, the validity of the local customs, laws, and decisions of courts in respect to the appropriation of water ***.

March 3, 1877, an act, chapter 107, was passed for the sale of desert lands, which contained in its first section this proviso (19 Stat. 377):

"Provided, however, That the right to the use of water by the persons so conducting the same on or to any tract of desert land of six hundred and forty acres shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights."

On March 3, 1891, an act, chapter 561, was passed repealing a prior act in respect to timber culture, the 18th section of which provided (26 Stat. 1101): "That the right-of-way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation and duly organized under the laws of any State or Territory which shall have filed, or may hereafter file, with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals, and 50 feet on each side of the marginal limits thereof; also the right to take, from the public lands adjacent to the line of the canal or ditch, material, earth, and stone necessary for the construction of such canal or ditch: Provided, That no such right-of-way shall be so located as to interfere with the proper occupation by the Government of any such reservation, and all maps of location shall be subject to the approval of the department of the Government having jurisdiction of such reservation, and the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories."

Obviously by these acts, so far as they extended, Congress recognized and assented to the appropriation of water in contravention of the common-law rule as to continuous flow. To infer therefrom that Congress intended to release its control over the navigable streams of the country and to grant-in-aid of mining industries and the reclamation of arid lands the right to appropriate the waters on the sources of navigable streams to such an extent as to destroy their navigability, is to carry those statutes beyond what their fair import permits. This legislation must be interpreted in the light of existing facts-that all through this mining region in the West were streams, not navigable, whose waters could safely be appropriated for mining and agricultural industries, without serious interference with the na vigability of the rivers into which those waters flow. And in reference to all these cases of purely local interest the obvious purpose of Congress was to give its assent, so far as the public lands were concerned, to any system, although in contravention to the common-law rule, which permitted the appropriation of those waters for legitimate industries. To hold that Congress, by these acts, meant to confer upon any State the right to appropriate all the waters of the tributary streams which unite into a navigable watercourse, and so destroy the navigability of that watercourse in derogation of the interests of all the people of the United States, is a construction which cannot be tolerated. It ignores the spirit of the legislation and carries the statute to the verge of the letter and far beyond what under the circumstances of the case must be held to have been the intent of Congress.

But whatever may be said as to the true intent and scope of these various statutes, we have before us the legislation of 1890. On September 19, 1890, an act, chapter 907, was passed containing this provision (26 Stat. 454, sec. 10):

"That the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has

jurisdiction, is hereby prohibited. The continuance of any such obstruction, except bridges, piers, docks, and wharves, and similar structures erected for business purposes, whether heretofore or hereafter created, shall constitute an offence, and each week's continuance of any such obstruction shall be deemed a separate offence. Every person and every corporation which shall be guilty of creating or continuing any such unlawful obstruction in this Act mentioned, or who shall violate the provisions of the last four preceding sections of this Act, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $5,000, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court; the creating or continuing of any unlawful obstruction in this Act mentioned may be prevented, and such obstruction may be caused to be removed by the injunction of any circuit court exercising jurisdiction in any district in which such obstruction may be threatened or may exist; and proper proceedings in equity to this end may be instituted under the direction of the Attorney General of the United States."

As this is a later declaration of Congress, so far as it modifies any privileges or rights conferred by prior statutes it must be held controlling, at least as to any rights attempted to be created since its passage; and all the proceedings of the appellees in this case were subsequent to this act *** (pp. 703-707).

The Elephant Butte Dam later was authorized and constructed.

D. ADMIRALTY AND MARITIME JURISDICTION

1. Knickerbocker Ice Co. v. Stewart (253 U. S. 149 (1920)): Article III, section 2, of the Constitution extends the judicial power to admiralty and maritime jurisdiction. Article I, section 8, grants Congress the power to make necessary and proper laws to carry out all of the constitutional powers vested in the Government of the United States. The question in this case was whether Congress could adopt State laws as controlling in maritime suits when the Constitution contemplated uniformity (Id., p. 160). Here, said the Court

*** Congress undertook to permit application of workmen's compensation laws of the several States to injuries within the admiralty and maritime jurisdiction; and to save such statutes from the objections pointed out in Southern Pacific Co. v. Jensen (244 U. S. 205). It sought to authorize and sanction action by the States in prescribing and enforcing, as to all parties concerned, rights, obligations, liabilities, and remedies designed to provide compensation for injuries suffered by employees ingaged in maritime work.

And so construed, we think the enactment is beyond the power of Congress. Its power to legislate concerning rights and liabilities within the maritme jurisdiction and remedies for their enforcement, arises from the Constitution, as above indicated. The definite object of the grant was to commit direct control to the Federal Government; to relieve maritime commerce from unnecessary burdens and disadvantages incident to discordant legislation; and to establish, so far as practicable, harmonious and uniform rules applicable throughout every part of the Union.

Considering the fundamental purpose in view and the definite end for which such rules were accepted, we must conclude that in their characteristic features and essential international and interstate relations, the latter may not be repealed, amended, or changed except by legislation which embodies both the will and deliberate judgment of Congress. The subject was entrusted to it to be dealt with according to its discretion-not for delegation to others. To say that Congress could have enacted a compensation act applicable to maritime injuries, it could authorize the States to do so as they might desire, is false reasoning. Moreover, such an authorization would inevitably destroy the harmony and uniformity which the Constitution not only contemplated but actually established-it would defeat the very purpose of the grant. *** *

Congress cannot transfer its legislative power to the States-by nature this is nondelegable *** (pp. 163–164).

2. State of Washington v. Dawson & Co. (264 U. S. 219 (1924)), presented the question of whether a company engaged in stevedoring,

whose employees worked only on board ships in the navigable waters of Puget Sound, could be compelled to contribute to the accident fund provided for by the Workmen's Compensation Act of Washington. The State maintained that the objections pointed out in the Knickerbocker case had been removed by Congress in the act of June 10, 1922 (42 Stat. 634). The Washington State Supreme Court ruled otherwise and it was affirmed by the United States Supreme Court.

As in the Knickerbocker case, the United States Supreme Court, ineffect, held that article III, section 2, of the Constitution of the United States not only gave the Federal Government supreme powerover maritime affairs, but that it denied power in the States to legislate in this field. Said Mr. Justice McReynolds for the majority:

This cause presents a situation where there was no attempt to prescribe general rules. On the contrary, the manifest purpose was to permit any State to alter the maritime law and thereby introduce conflicting requirements. To prevent this result the Constitution adopted the law of the sea as the measure of maritime rights and obligations. The confusion and difficulty, if vessels were compelled to comply with the local statutes at every port, are not difficult to see. Of course, some within the States may prefer local rules; but the Union was formed with the very definite design of freeing maritime commerce from intolerable restrictions incident to such control. The subject is national. Local interests must yield to the common welfare. The Constitution is supreme (p. 228).

These article III (judicial power) cases have been noted for the purpose of distinguishing the commerce and property clause decisions..

E. CLAIMS OF THE UNITED STATES TO UNAPPROPRIATED WATER

1. Nebraska v. Wyoming (325 U. S. 589 (1945)), was an original suit involving the waters of the North Platte River, the dependable natural flow of which had long been overappropriated during the irrigation season. Nebraska claimed that certain diversions violated the rule of priority. Both States, however, asked for an equitable apportionment.

The factual situation is not important in this instance. The decision, in effect, enunciated the principle of equitable apportionment among appropriation States and said that the principle did not require a literal application of the priority rule as applied in Wyoming v. Colorado (259 U. S. 419 (1922)). Of interest in connection with, F. P. C. v. Oregon was the claim of the United States to all unappropriated waters. Tracing its ownership from the cessions by France, Spain, and Mexico in 1803, 1819, and 1848, and by agreement with Texas in 1850 it claimed ownership of these waters to whatever extent it had not disposed of them.

The Supreme Court referred to the Desert Land Act and the fact that in Power Co. v. Cement Co., supra, it had held that the act effected a severance of all waters upon the public domain, not theretofore appropriated, from the land itself, and extended the right of appropriation to any declarant who reclaimed desert land. The act further provided that all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources upon the public lands and not navigable should remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes, but subject to existing rights. Diversion, storage, and distribution of water thereafter by the Government, it said, did not transfer these water rights to the