DEPARTMENT OF THE INTERIOR

UNITED STATES GEOLOGICAL SURVEY

GEOROK OTLS SMITH, DiuKTOR

WATER-SUPPLY PAPEB 238

THE

PUBLIC UTILITY OF WATER POWERS

AND THEIR

GOVERNMENTAL REGULATION

BY

REN£ TAVERNIER

CHIEF ENGINEER. DEPARTMENT OF PUBLIC VTORKS 

REPUBLIC OF FRANCE

AND

MARSHALL O. LEIGHTON

CHIEF HYDROGRAPHER, UNITED STATES GEOLOGICAL SURVEY

WASHINGTON

GOVERNMENT PRINTING OFFICE 

1910
DEPARTMENT OF THI? INTERIOR

UNITED STATES GEOLGC1' 1L SURVEY

GEORGE OTIS SMITH, DIEECTOR

WATER-SUPPLY PAPER 238

THE

PUBLIC UTILITY OF WATER POWERS

AND THEIR

GOVERNMENTAL REGULATION

BY

RENfi TAVERNIER

CHIEF ENGINEER, DEPARTMENT OF PUBLIC WORKS 

REPUBLIC OF FRANCE

AND

MARSHALL O. LEIGHTON

CHIEF HYDROGRAPHER, UNITED STATES GEOLOGICAL SURVEY

WASHINGTON

GOVERNMENT PRINTING OFFICE

1910
CONTENTS.

Page.

CHAPTER I. Introduction, by M. 0. Leighton............................. 5

CHAPTER II. Hydraulic power and irrigation, by Rene Tavernier............ 12

General statement.................................................... 12

Influence of industrial utilization of hydraulic power on development of

irrigation.......................................................... 13

French irrigation methods.......................................... 14

Economic nature of business enterprises employing hydraulic power.. 16

1 Use of hydraulic plants in the development of irrigation.............. 22

Measures adopted by ministry of agriculture to harmonize development of

irrigation with industrial utilization of streams......................... 26

Bureau for investigation of hydraulic power. ....................... 26

Committee of scientific investigation................................ 29

Laws and regulations for reforming system of licenses and permits for

hydraulic power plants............................................... 30

Special studies made by minister of agriculture.......................... 33

Conclusion............................................................ 35

CHAPTER III. French and foreign legislation relative to the development of

water powers, by Rene Tavernier........................................ 37

Practical utility of the study......................................... 37

French legislation.................................................... 38

Laws and regulations in force....................................... 38

Jurisprudence. ..................................................... 39

Defects of: the present law......................................... 40

Proposed reforms.................................................. 42

Principles proposed for basis of new legislation....................... 44

Italian legislation...................................................... 45

Classification of waters............................................ 45

Distinction between "concession" and "authorization"............. 45

Analysis of the law of August 10, 1884.............................. 46

Public administrative regulation of November 26, 1893.............. 47

Circular of June 17, 1898............................................ 47

Revision of the law of August 10, 1884............................... 48

Scope of the proposed new law..................................... 48

Swiss legislation....................................................... 52

Inquiry into expediency of water-power reforms..................... 53

Reforms recommended by federal authorities....................... 54

Difficulties involved in electric traction of railroads. ................ 55

Water-power concessions in Canton of Berne........................ 56

Flexibility in cantonal laws....................................... 58

Variation in legislative tendency of the Cantons..................... 59

Supplementary note, by M. 0. Leighton............................. 59

3
4 CONTENTS.

Page.

CHAPTER III. French and foreign legislation relative to the development of 

water powers, by Rene Tavernier Continued.

Proposed law for the regulation of public water-power plants ..... ...... 60

General discussion................................................ 60

Distinction between private and public plants...................... 63

Uniformity in regulations for navigable and nonnavigable streams.... 63

Character of concession............................................ 64

Method of granting concessions .................................... 65

Relations with third parties damages easements expropriations... 66

Termination of concession......................................... 67

The proposed law................................................. 68

CHAPTER IV. Laws proposed in the French Parliament....................... 74

Law proposed by M. Albert Lebrun for regulating hydraulic plants on nonnavigable watercourses.............................................. 74

Legislation now in force............................................ 74

Review of proposed legislation for private power plants.............. 76

The proposed law.................................................. 78,

Law proposed by Messrs. Baudin and Millerand for regulation of hydraulic

power plants on watercourses and canals of the public domain........ 85

Digest of the Government proposal................................ 85

Criticism and justification of the newly proposed law................ 86

The proposed law................................................. 88

CHAPTER V. Review of work of bureau of hydraulics and agricultural improvements of the French department of agriculture........................... 93

Organization of the bureau........................................... 93

Functions......................................................... 93

Personnel......................................................... 93

Commissions..................................................... 95

The hydraulic service................................................. 96

Functions......................................................... 96

Noxious waters.................................................... 98

Useful waters .................................................... 100

Agricultural improvement service..................................... 102

Agricultural utilization of waters. ................................. 103

Drainage and soil improvement..................................... 103

Redistribution, farm roads, remaking the cadaster.................. 104

Rural buildings................................................... 105

Improvement of poor or uncultivated land.......................... 106

Miscellaneous improvements......................................... 106

Meteorology...................................................... 107

CHAPTER VI. Water-power legislation in the United States, by M. O. Leighton. 108

Federal statutes and powers........................'..................... 108

Effect of the desert-land act....................................... 108

Water powers on navigable streams. ................................. 123

Government dams on navigable streams............................. 136

Water powers on the public lands................................... 137

Forest Service regulations.......................................... 139

State legislation....................................................... 147

Pennsylvania..................................................... 147

New York..................-.........................'.............. 149

Oregon............................................................ 150

Other States..................................................... 157

Conclusions..................................................... .... 157

INDEX. ................................................................... 159
THE PUBLIC UTILITY OF WATER POWERS AND THEIR 

GOVERNMENTAL REGULATION.

CHAPTER I. 

INTRODUCTION.

By M. O. LEIGHTON.

This paper is published to show how the French and the Swiss 

Republics and the Kingdom of Italy are treating a grave problem in 

their political economy the problem of water power. The people 

of the United States are facing the same problem, although, except in 

a few notable localities, they have not begun to apply any method 

of serious treatment. The problem has grown well-nigh to maturity 

within ten years, and few have been aware. Had the country foreseen 

what has come to pass its treatment would have been easy. In its 

early years the issue might have been easily guided; now it will dominate a great controversy. The final result is not in question, but in 

the contest that must take place it will be wise to observe the nature 

and the drift of measures adopted by older countries and to learn all 

that may be helpful of their methods and acts. In this contest the 

following paper by M. Rene Tavernier, the distinguished chief engineer of the department of public works (ponts et chaussees) of the 

Republic of France, must be of value to the American people. As the 

delegate of his country to the Sixteenth National Irrigation Congress, 

convened at Albuquerque, N. Mex., in August, 1908, he presented a 

discussion of the subject of hydraulic power and irrigation which 

revealed so broad a conception of fundamental principles, and especially of the relation of the subject to national economy, that he was 

urged to increase the scope of his discussion to cover the subjectmatter herein.

One of the striking features of the French discussion here and 

elsewhere is the apparent appreciation by all who have participated 

in public discussion of the fact that the problem has two sides. Corporate abuses past, present, and prospective are recognized, and

5
6 PUBLIC UTILITY OF WATER POWERS.

the need for remedial legislation is practically undisputed. On the 

other hand, it is admitted, even by the most zealous advocate of governmental intervention, that correction does not mean repression. 

Hydro-electric properties have not, as a class, returned to the investor 

a succession of swollen dividends. The industry has hardly passed 

its experimental stages. Its securities are by no means the least precarious of those on sale in the exchanges. This does not mean that 

such investments involve any special risk that is not presented, either 

in kind or equivalent, by other standard " industrials." Any project 

of the hydro-electric industry is profitable or unprofitable according 

as the expense of development and maintenance and the demand 

and supply are favorable or otherwise. The industry is subject 

to the same exigencies as are other industries, and, except in a 

few cases, notwithstanding the testimony of many popular magazine 

articles, it bears no resemblance to Aladdin's lamp as a revenue producer. No industry will respond more readily to ill-advised and oppressive legislation; in none must the burden fall more directly on 

the ultimate consumer. Any hydro-electric project requires special 

consideration during the early years of its development; a surprisingly large number either fail to pay dividends or become bankrupt 

during the first decade of their existence.

Notwithstanding the above statements, there is a real menace in 

the present situation, which holds many problems that are difficult of 

solution. Certain consolidations of water-power interests have taken 

place during the last few years, and these, with the appearance 

of the names of a few persons among the officers or in the directorate 

of a large number of companies operating water-power plants, making new installations, or manufacturing or marketing water power or 

electric machinery, point unmistakably to a concentration of ownership and administration in several groups which, in the usual course 

of events, might consolidate or at least effect a community of agreement. The menace in the prospect lies not so much in this probability 

as in the ability of such a combination to manipulate unrighteously 

the public interest. The menace is therefore speculative, but this fact 

does not obviate the necessity for legislation. The nation and the 

State are accustomed to legislate against speculative crimes and 

abuses, because experience shows that in the present state of society 

mankind is yet frail. What, then, should be the legislation necessary 

to meet the present conditions ?

Consolidation is inevitable. Water power is a natural monopoly 

by reason of the natural laws of stream flow. Man can not change 

these laws, and his only course is wisely to adapt himself to them 

so that they may not operate to his disadvantage. The electric 

transmission of power developed on water wheels has changed the 

entire industrial aspect of the matter. When a water power was
INTRODUCTION. 7

used at the site and its industrial development was limited to 

its capacity there, no reason existed for consolidation; now the 

site of a water-power plant is not likely to be its field of operation; its power is distributed over a large area. In this large area 

there is a common demand for power, and the market constitutes an 

administrative unit. The demand of the region is a demand in the 

aggregate. The power on any stream fluctuates with the seasons. 

The important power demands are those which require a certain 

steady supply and a large reserve for extraordinary demands or 

"peak loads." As the demand increases with the development of 

industry the task of supplying it from one fluctuating stream grows 

more difficult. The energy developed on several sites or on several 

streams must then be transmitted to supply the market. With a still 

continued increase in demand, more sites and streams must be brought 

into use. In the final analysis, therefore, all sources of power available for a particular field of demand must be brought under a 

common administration, so that at any time the energy can be 

turned hither and yon to meet the requirements of each hour. It 

follows that legislation prohibiting power monopoly must not prevent 

power consolidation lest it injuriously affect industrial development. 

There is no virtue in preventing consolidation if economies in maintenance and operation are thereby prevented. No one will deny that 

water-power consolidation secures distinct and unusual economies, and 

if the consumer receives the benefit therefrom he is better off under 

consolidation. These are oft-stated and self-evident truths; therefore the proper solution of the problem must lie in the legislative 

regulation of water-power development and maintenance, to the end 

that the consumer shall pay a fair and reasonable price for power, 

consistent with the production of fair and reasonable earnings on the 

capital invested.

Up to the time of long-distance transmission of electricity a water 

power was an essentially local agent of production. The energy 

derived from the falling water was transmitted by belt and shaft to 

the near-by machinery which consumed it. Obviously, the field of 

operation was so localized that the plant was, to all intents and purposes, a private affair. Long-distance transmission of electricity 

made water power a public utility in every sense of the term. It 

entered a public market and became a common source of mechanical 

energy. A public utility is an enterprise in which there exists a 

public use. Although this term has never been strictly defined in a 

way that is applicable to all times and cases, the legal principle is 

well established. Mr. Justice Cooley, in defining a public use, as the 

term is applied in the law of eminent domain, said:

The reason of the case and the settled practice of every government must be 

our guide in determining wliat is or is not to be regarded as a public use, and
8 PUBLIC UTILITY OF WATER POWERS.

it can only be considered such where the government is supplying its own needs 

or is furnishing facilities for its citizens in regard to those matters of public 

necessity, convenience, or welfare which, on account of their peculiar character 

and the difficulty of making provision for them otherwise, are proper, useful, 

and needful for the government to regulate.

This definition may suffice for the statement of principle. It implies that the public, in its sovereign capacity, retains the right of 

regulation and control in a greater or less degree over the exercise 

of any function of public consequence. When private property, or 

the use thereof, becomes a public necessity, or when the owner 

thereof devotes it to a use in which the public has an interest, 

he, in effect, grants to the public an interest and must therefore 

submit to control by the public for the common good to the extent of the interest he has thus created. Moreover, a public utility 

is absolutely defined by the controlling conditions of the times. That 

which is juris privati to-day may be a public utility to-morrow. The 

term must readily adapt itself to new demands and conditions imposed by the ever-increasing necessities of society.

When the principle above indicated is applied to water power 

under electric transmission, it will be seen that the conditions are 

satisfactorily met. Mechanical energy is one of the prime necessities of a productive people, and transmitted energy, distributed over 

an area, must, in the nature of things, dominate the situation. It becomes a public necessity, and when the power is devoted to such use 

the public acquires an interest therein, just as it acquires an interest 

in a railroad that, passing through any section of the country, becomes an agent of transportation, which is but another factor of trade 

and economic progress. It will not be contended that facilities for 

production are any less important to public interest than facilities 

for transportation. Viewed from every angle, the public economy 

in these two factors is identical in principle. One water power or 

a chain of powers may, under electric transmission, become the seat of 

productive energy over an area of 500 or 600 square miles, and this 

area will progressively increase with increase in the efficiency of electric transmission. Therefore present conditions of economic demand 

on such a source of power have by no means reached their limit, 

although the principle itself may be fully established.

The important point in connection with all this is that, whereas 

the appreciation of the people concerning public utility with respect 

to transportation facilities has been reflected in appropriate legislative acts, the public-utility features with reference to productive 

energy from water power are not realized, except in a few localities. 

It is true that for many years a water power from which energy is 

sold to mills has, under interpretations of the courts, been considered 

a public utility, but the principle was so limited in its application that,
INTRODUCTION. 9

previous to electric transmission, it did not impress the people at 

large with its real significance.

We are now facing the mature condition, and our legislative programme with reference to it is, in the majority of States, not even 

begun. So far as the attitude of the people is concerned, as represented in their legislative acts, water powers are on the same basis 

that they Were years ago. The condition is equivalent to that which 

would prevail if our laws respecting transportation were still of the 

same scope that they were previous to the development of the steam 

railway. In addition to lack of law there are in some places constitutional limitations, and these are the greatest impediments to the 

inauguration of appropriate policies. Such is the conservatism of 

the people with reference to the change of the Constitution that a 

progressive demand must be apparent for a considerable period before 

a change is made that will apply to new conditions. Such conservatism is, of course, far preferable to an extreme tendency in the 

opposite direction, but, inasmuch as a constitution is fundamental 

law, it can hardly be considered praiseworthy to adhere to such law 

when the conditions on which it was originally based are so changed 

that a new field is presented. All this has been recognized in some 

European countries and in a few of the States of the Union, but 

the real significance of the present situation has not yet become a 

matter of common knowledge.

The disadvantages arising from our present unpreparedness to meet 

the new questions involved in power development and its regulation 

are not entirely internal. We might postpone action for several 

years without doing more actual damage to ourselves than to encour- 

.age monopolistic tendencies were it not for the fact that there is a 

matter of foreign competition, as is clearly implied in the following 

paper. This paper shows that the development of water power has 

become a national question in France as well as in Italy and in 

Switzerland. In those countries there has arisen a national policy 

of regulation and encouragement which will ultimately draw great 

industries within their borders. The United States now maintains, an industrial leadership that can not be retained if other 

countries pursue policies that more strongly attract manufacturing enterprises. The menace to American industrial leadership 

is already on the horizon. The water-power sites of Europe are 

situated close to the great markets of the world. Is there anyone in the United States so confident of this country's industrial 

leadership as to assert that the wholesale development of these 

large and cheap powers will not seriously affect our status? Trade 

and production are entirely cosmopolitan. The cheapest sources of 

energy will be used, without reference to any particular flag, if they 

are located in a region convenient to market. This nation has now
10 PUBLIC UTILITY OF WATER POWERS.

no water-power policy worthy of the name. The President has 

recognized this defect, and in a special message to Congress on the 

conservation of natural resources, transmitted January 14, 1910, has 

advocated a comprehensive measure to meet the situation. Unless 

this or a similar proposal is adopted the United States must give 

way to those countries which have well-defined policies.

In many parts of the United States the price of coal is high and 

water power can be developed with comparative cheapness, so that 

a low rental price of power will yield a fair profit. The equitable 

way to maintain such powers is to charge only such rental as will 

pay a reasonable profit. But this policy is not always adopted. 

The tendency is to regulate the price of water power by the cost of 

steam power. If, for example, the rental of water power at $25 per 

horsepower year will furnish a satisfactory margin of profit, and 

the cost of steam-power production is $100, then the price of water 

power is fixed not at $25, but at a point nearer $100. In this way the 

water power will be a trifle cheaper to the consumer than steam 

power, and therefore the former will control the market. This is 

obviously an extreme case. The margin between the cost of the two 

kinds of power is not usually so wide. The statement does, however, 

illustrate a common practice. Such an arrangement obviously does 

not afford to the community the real saving that should result from 

water-power development. An industrial power consumer will inevitably compare the results of such a system with the prices and 

conditions that prevail in foreign countries. This is a mere matter 

of Avise business management. If, in looking over the ground, the 

consumer finds that under the laws of France or Switzerland he can 

obtain his power at the $25 rate or its equivalent, he is not going to. 

locate in a part of the United States where it is worth only the $25 

rate but where, by reason of the differential on steam power, it is 

raised nearly to the limit at which steam power can be produced. 

Of course other factors than power costs influence the location of 

any manufacturing plant, but this does not justify the imposition 

of a handicap on the United States in the shape of Unrestrained or 

unregulated power charges.

The above statements are intended to suggest in a superficial 

way that in this matter of power development the adjustment of 

questions in dispute does not merely involve an extended squabble 

among ourselves. The question has a higher significance, namely, 

that of the productive leadership of the United States. In the face 

of the activity of European countries, concerning which no secret 

is made, there can hardly be any excuse for the postponement of 

rational and legal measures by this country. The discussion submitted by M. Tavernier in the following pages should not be regarded 

simply as an interesting dissertation on water powers and their rela-
ITSrTBODTJCTIOTSr. 11

tion to political economy, but rather as a lesson from the experience 

of another enlightened country and a warning that measures at least 

as f oresighted and progressive must be adopted by the States and the 

nation.

M. Tavernier has selected certain extracts from reports previously 

made by himself; also certain reports of commissions of the Chamber 

of Deputies, in which are presented and discussed sundry legislative 

proposals. All of this is supplemented by a presentation of various 

laws enacted by certain States of the Union and a general introductory discussion of the popular and legislative status of water 

power in the United States, which has been prepared by the coauthor.
CHAPTER II. 

HYDRAULIC POWER AND IRRIGATION.

By RENE TAVERNIER.

GENERAL, STATEMENT.

It was little more than thirty years ago, shortly before the wellknown experiments of Desprez concerning the electric transmission 

of power, that French engineers began to perceive the use that could 

be made of the power of flowing water. A hydraulic power plant, 

operated by a waterfall 500 meters (1,640 feet) in height, built by 

M. Berges for the use of his paper mill in the Isere Valley near Grenoble, drew attention to the large number of similar industrial opportunities throughout the French Alps.

The example of M. Berges found a number of imitators* Between 

1880 and 1890 several manufacturers in the valleys of Arc and 

Romanche rivers made use of the streams and falls of that region for 

electro-metallurgical and electro-chemical purposes. The first great 

hydraulic plant designed to produce power for public distribution 

was erected in the period between 1888 and 1898 on Rhone River 

above Lyons, at the town of Jouage. By the year 1900 such plants 

had become so numerous as to call for a governmental investigation 

of their possible effects on the future work of certain branches of the 

public administration, particularly that of the division of irrigation.

On August 12, 1899, the writer prepared a report containing detailed information concerning the exploitation of this new variety of 

wealth, which in France has been somewhat metaphorically called 

" white coal " " la houille blanche " and the means by which public 

service enterprises using hydro-electric power, as well as those concerns whose operation is affected by the diverting or damming of 

streams, may be enabled to participate in this exploitation and derive 

profit from it.ffl

Among the enterprises that simply consume hydro-electric motive 

power should first be mentioned the great railway systems, which in 

France, as every one knows, are leased by the State to private corpoa Les forces hydrauliques des Alpes en France, en Italie, en Suisse; statistlque mode 

d'utilization legislation: Rapport de mission de M. Ren$ Tavernier, inge*nieur en chef des 

ponts et chaussees (Annales des Fonts et Chauss«5es, 1900). (See pp. 87 73.) 

12
HYDRAULIC POWEE AND IRRIGATION'. 13

rations and which revert to the State at the expiration of the leases; 

among those whose development and prosperity are even more directly 

affected by the production and utilization of hydraulic power are 

navigation (confined to navigable streams) and irrigation (extending to all streams).

This paper, written entirely with regard to the interests and needs 

of agriculture, is intended to emphasize the close interdependence of 

irrigation plants particularly their future expansion and utilization and the industrial employment of hydraulic power. Its statements apply especially to France and are probably not sufficiently 

general in character to be applicable without modification to all other 

countries. France is densely populated, and a relatively large number of her inhabitants own the farms that they cultivate or the shops 

or businesses that they manage. Neither manufacturing nor agriculture is there conducted on so large a scale as in America, nor does 

either play a predominant- part in any one section of the country, as 

in the United States, where some of the separate States are mainly 

agricultural and others mainly industrial. In almost every portion 

of France agriculture and manufactures are distributed almost evenly 

and play parts of about equal prominence.*

This problem of the more satisfactory utilization of streams, which 

is bound to arise sooner or later nearly everywhere, presents peculiar 

difficulties in France because of the entanglement of economic interests and the conflict of legal privileges which are involved. Few 

streams are serviceable for only one purpose. Since time immemorial the right to use even little brooks and creeks has been a 

matter of dispute between individuals; and now that the larger 

streams have -suddenly acquired very considerable economic importance the conflict of interests is more vital. In seeking the 

better utilization of streams it is often necessary to defend the 

future needs of agriculture, which provides a livelihood for a large 

population without enriching those who are engaged in it, against 

the encroachments of manufacturing plants whose exclusive purpose 

is the earning of large profits.

We shall consider, first, the relations between hydraulic power production and soil irrigation; and then discuss the investigations made 

by the French ministry of agriculture, as well as the measures which 

it has already taken or proposes to take in this connection.

INFLUENCE OP INDUSTRIAL UTILIZATION OF HYDRAULIC POWER ON DEVELOPMENT OF IRRIGATION.

The proper discussion of the question indicated by the above 

heading requires the consideration of the following three topics:

0 Similar conditions are approaching or are already fixed in many parts of the United 

States. It is the natural consequence of age, opportunity, and development. M. O. L.
14 PUBLIC UTILITY OE WATER POWERS.

(1) The methods of irrigation employed in France; (2) the economic 

features that are peculiar to hydraulic power enterprises; and (3) the 

relations between these two sorts of enterprises, including the mutual 

help that they can render under certain circumstances and the harm 

which, under other circumstances, they are apt to inflict upon each 

other.

FBEJSTCH IRRIGATION METHODS.

A lengthy exposition of this subject may be dispensed with by 

referring the investigator to the following works:

Barral: Les irrigations dans les Bouches-du-Rhone.

Barral: Les irrigations dans Vaucluse.

Barral: Les irrigations dans la Haute-Vienne.

Annales de la directions de 1'hydraulique et des ameliorations agricoles 

(parts 26 to 34).

Reports of the International Congress of Engineers at St. Louis, Mo., 

TJ. S. A., irrigation section. (In English.)

M. Levy-Salvador: Irrigation and hydraulic motors used in irrigation in 

France.

Prevost, M., Ingenieur an ministere des colonies: Rapport sur les irrigations aux colonies.

Alimentation artiflcielle de la riviere de Neste.

Note sur le service de 1'b.ydraulique et des ameliorations agricoles.

Map, on a scale of 1 to 5,000, of the basin of Durance River and its 

tributaries.

Particular attention is directed to the short article on irrigation by 

M. Levy-Salvador, which has been translated into English tt and 

which gives the reader a general idea of the various methods used 

in different parts of France. As agronomic questions will not here 

be discussed, but attention will be devoted exclusively to the mechanical or engineering aspects of irrigation, the means by which water 

is carried to the soil to be irrigated, it may be stated, in agreement 

with M. Levy-Salvador, that two methods have always been in vogue. 

With the first method surface water or underground water is pumped 

at the point where it is to be utilized; with the second it is led through 

gravity canals and ditches from some point at a distance, where the 

level is sufficiently high, to the place where it is to be used. Each 

of these methods has heretofore had its own peculiar advantages 

under given circumstances. Pumping has been used especially for 

private small-scale irrigation, where small volumes of water were 

used separately and pumped to relatively low altitudes; but the 

method of diverting the requisite water has always been regarded as 

a more economical way to provide large quantities of water for the 

irrigation of groups of farms collectively.

But the purely mechanical superiority of the diversion method was 

conjoined with a commercial inferiority which explains the financial

0 Trans. Am.'Soc. Civil Bng., vol. 54, pt. C, 1905, pp. 111-128.
HYDRAULIC POWER AND IRRIGATION. 15

failure of the newest large irrigation plants. This commercial inferiority was due to various causes which, in the last analysis, all had 

a common origin in the fact that the small farmers interested in the 

collective enterprises were very numerous and possessed extremely 

scanty financial means. In France, as in some other countries, the 

demand was not for an irrigation system adapted to the needs and 

resources of a small number of large landed proprietors who could 

easily be persuaded to combine themselves in a venture of financial 

magnitude or who cultivate a virgin soil which is apt to increase 

sufficiently in value to yield large profits to the promoters. The 

numerous landowners whose farms Tequire irrigation must be led to 

unite and they must pledge themselves for a long period forty years 

or more in order to insure the continued operation of the irrigation 

plant. In spite of very large subsidies (often amounting to half the 

cost) granted by the French ministry of agriculture, disasters of two 

kinds have arisen.

1. Landowners who have subscribed ill-advisedly for the watering of a relatively large acreage have been unable to earn any profits, 

because of the poor quality of the soil, the great distance from the 

market, or the insufficiency of their capital. For it should be 

noted that the change from arid soil and extensive methods of 

farming ' to irrigated soil and intensive methods involves not 

only the expense of irrigation itself, but also the oftentimes heavy 

burden of altering methods, new implements, and a different management. The farmer who can not meet these demands and adheres to the old methods of cultivation finds that the water which he 

has so dearly bought does not result in a sufficient increase in the 

value of his crops.0

2. The owners of the plant find unfulfilled, as a result of the same 

circumstances, their own reasonable hopes for expanding demand for 

irrigation and hence increasing profits.

The disappointment of some of the early subscribers to the enterprise also dissuades possible new ones. Even the method of selling 

the water, namely, by requiring the purchaser to pledge himself 

for a long period and for a certain number of acres, without the 

possibility of subsequent modification, is altogether unbusiness-like. 

Intensive farming, like most other occupations, is subject to shifting 

and fluctuation and does not permit rigid calculations made in 

advance for long periods of time. Some farmers would be willing 

to try an experiment, but would not dare to bind themselves for a 

term of years. 6

" The usual prices, varying from 40 to 60 francs per hectare per annum (about $3 to $4 

per acre per annum), entitle the purchaser to a quantity of water equivalent to a flow 

of 1 liter (0.035 cubic foot) per second, furnishing a depth of 6 centimeters (2.4 inches) 

every week for six months of the year.

6 The similarity of difficulties in connection with cooperative enterprises in the arid 

West of the United States is worthy of remark. M. O. D.
16 PUBLIC UTILITY OF WATEE POWERS.

It is easy to understand, moreover, that in time these difficulties 

will probably disappear. Landowners learn to make good use of 

the water, and those who do not at first possess sufficient means or 

knowledge acquire them gradually, or their places are taken by 

others who are more resourceful. Furthermore, numerous farmers' 

unions and cooperative associations interested in the social reform 

movements now so active in France have provided groups of associated farmers with all the resources formerly enjoyed only by large 

landowners.

Finally, the department of agriculture, by means of a newly 

created service " the agricultural improvements service," complementary to the hydraulic service is itself endeavoring to aid irrigators to the best possible utilization of water."

Many of the older irrigation plants have reduced their charges 

and better adapted themselves to local conditions, thus, in the long 

run, bringing about fortunate transformations and spreading prosperity in the regions where they are located. It would be wrong, 

therefore, to conclude that because some of the large systems of irrigation canals recently built in the valleys of the Rhone and the 

Durance were financial failures irrigation does not constitute in 

the south of France, or in countries presenting similar climatic 

conditions, a most efficient means of increasing agricultural productivity.

But it is equally comprehensible and this is the main point of 

the foregoing remarks that the ministry of agriculture hesitates 

to subsidize new irrigation enterprises while those most recently 

completed have not yet produced the results which were anticipated; 

and that the Government prefers to seek some solution which shall 

offer, among other advantages, that of not involving large expenditures made too long before the time when they can become profitable.

In the following paragraphs we shall consider to what extent the 

results of the utilization for productive purposes of the so-called 

" white coal " will retard or facilitate the discovery of a solution.

ECONOMIC N-ATTJBE OF BUSINESS ENTEBPBISES EMPLOYING 

HYDBAULIC POWEB.

Up to the end of the last century small hydraulic plants and water 

mills, which were very numerous in France, employed only 'a small 

fraction of the total water power of the country. In 1890, according 

to" the statistics of the department of agricultural hydraulics, these 

concerns numbered 69,620 for the whole of France, with a gross productivity of 1,028,807 horsepower, equivalent, because of the small 

yield of very imperfect appliances, to an effective horsepower of only

0 See bulletin entitled " Review of the work of the bureau of hydraulics and agricultural improvements," a translation of which appears herein (pp. 93 107).
HYDRAULIC POWER AND IRRIGATION. 17

one-third that amount. The average productivity of each mill or 

plant was 14 horsepower gross and 5 horsepower net. These small 

plants, when erected upon streams well supplied with water, generally 

used only a fractional part of the available power and water and left 

the remainder available for other purposes, such as irrigation. But 

this is not the case with large modern power installations, where a 

single plant gathers up several thousand horsepower. In the region 

of the French Alps alone which, to be sure, is best provided with hydraulic power there are 90 plants producing a total maximum of 

325,000 horsepower, measured at the turbine axle, or an average of 

3,600 horsepower for each concern.

The report of the writer, referred to on page 12, contains numerous 

facts concerning the cost of first establishment and of maintenance 

and operation and methods of utilization of large modern waterpower plants. Since that report was written (in August, 1899), the 

u white coal" industry has made rapid progress. But the broad 

features of its evolution are marked in the schedule prepared more 

than ten years ago. Some modifications should, however, be made 

therein. As the laws authorizing expropriation have not yet been put 

to a vote, the riparian owners and intermediaries of all classes, having 

come to a greater realization of the value of water powers, have raised 

their prices to a considerable degree. The sum of 100 francs ($20) 

per horsepower, taken in 1899 as representing the total expense of 

first installation of water-power works, is to-day in some places entirely absorbed in the mere acquisition of riparian rights.

Another feature in the progress made during ten years in the 

method of utilizing large water-power plants is indicated by the 

large power-distribution enterprises. Such enterprises, employing 

the technical inventions that continue to extend the practical limits 

of long-distance transmission, have sprung up in various parts of 

France in which water powers are located principally in the southeast, in the region of the Alps, and in the southwest, in the region of 

the Pyrenees just as, during the past ten years, the large railway 

systems have grown by combinations and successive extensions. The 

analogy between these two economic phenomena is striking.

To make the large railroad companies respect the principle of 

equality in treatment of the people, to safeguard industrial and 

commercial liberty, has been the universal endeavor, and the value 

of the results has varied with the efficacy of the precautions adopted. 

The experience acquired in the past in the exploitation of railroads 

must be applied to the better organization of the public services for 

power distribution.

The new tendency is to build, at the very start, a series of canals 

that will divert the entire low-water flow of the streams. Many of 

the large plants are fitted up not only for operating with the mini23321 No. 238 10 2
18 PUBLIC UTILITY OF WATER POWERS.

mum flow that can be counted on at all times of the year, but also 

for using the average flow such as may be reckoned on more or less 

irregularly during only eight, six, or even fewer months of the year.

It is evident that such an elaborate undertaking sometimes called 

a " complete " plant is likely to jeopardize the development of 

irrigation unless some precaution is exercised. Of course existing 

provisions for irrigation are not interfered with. There is even a 

disposition to allow a certain "" margin," which takes into account the 

probable demands of the future, based on the needs of the past. But 

when new irrigation enterprises are projected after such " complete " 

power plants have been built they are apt to come into conflict with 

vested privileges upon which it is impossible to encroach without 

indemnification.

It is true that hydraulic plants do not actually use up the water 

itself, which is always available for application to the soil after it 

has passed through the wheels. They do not interfere with the use of 

the water for irrigation below the point of exit. They prevent its 

use above that point. They consume the fall necessary to carry the 

water to the fields lying at altitudes between the upper and lower 

levels of the power plant. Hence the erection of one of these " complete " or integral power plants amounts simply to appropriating the 

impetus of the stream, which also constitutes, so to speak, the " energy"' 

necessary for watering the soils that might benefit by irrigation. Ifc 

may be more profitable for all parties as we shall attempt to show 

later to resort to the system of storing up this " energy " rather 

than to that of storing up water taken at the upper level of the fall. 

But before considering this question we must clearly grasp the dissimilar economic characteristics of the various types of hydraulic 

plants characteristics that depend upon such circumstances as the 

altitude of the fall, the volume of water and its fluctuations, whether 

the stream is tapped by a channel at a higher level or the water 

dammed at the point of use, and whether it is possible to accumulate 

the flow and to regulate the plant without loss of water but in accordance with the demands of its customers.

In France the productivity in horsepower of a hydraulic plant 

is calculated by means of the following very simple formula: 

P=HxQXlO, in which H is the height of the fall in meters and Q 

the discharge in cubic meters per second. This gives us the gross 

productivity in horsepower, each of 100 kilogram-meters a per second, 

which corresponds at the turbine axle assuming a net yield of 75 

per cent to a horsepower of 75 kilogram-meters per second.

But the industrial value of a power plant is not measured solely 

by its power thus calculated. In the first place, the formula is inapplicable to a plant using, in addition to a permanent minimum flow

« This is the French horsepower, equivalent to 1.32 British horsepower, M. 0. L.
HYDRAULIC POWER AND IRRIGATION. 19

of water, a certain average intermittent volume. An irregular power 

is manifestly not equivalent to a uniform power, when the irregularity is independent of the requirements of consumption and is governed solely by fluctuations in the condition of the stream. On the 

other hand, if a plant is equipped with facilities for storing up the 

natural flow of the stream for a time at a higher level in order to 

make use of it at the periods of maximum consumption, irregularity 

in the production of energy becomes subject to control and constitutes a 

source of large additional gain. It should be remarked, moreover, 

that these profit-creating reservoirs are much more effective and 

economical with high than with low head plants. Compare, in this 

respect, two hydraulic plants of 10,000 horsepower each, one receiving a flow of 71 cubic feet (2 cubic meters) per second, with a fall 

of 1,640 feet (500 meters), and the other a flow of 7,100 cubic feet 

(200 cubic meters) per second, with a fall of 16.4 feet (5 meters). 

A reservoir of 2,542,600 cubic feet or about 58 acre-feet (72,000 cubic 

meters) would suffice, in the first case, to store up the total discharge 

of ten hours, enabling that plant to vary its production sufficiently 

to provide for the widest fluctuations in the daily demand. In the 

second case a reservoir 100 times as large that is, with a capacity 

of 254,260,000 cubic feet or about 5,800 acre-feet (7,200,000 cubic 

meters) would be needed to obtain the same results. High falls 

therefore admit much more readily than low falls of being so 

equipped as to produce power at the precise time of the day when 

it is wanted. But they may play an even more important part. 

Imagine a poorly fed basin in a mountainous region receiving during 

the year by irregular discharges a total volume of water equaling a 

regular and uninterrupted flow of 3.5 cubic feet (100 liters) per 

second. With a reservoir having a capacity of 83,794,000 cubic feet 

or about 1,902 acre-feet (2,372,840 cubic meters) the water could be 

stored during nine months in order to let it flow during-the remaining three months. If the height of the fall is 1,640 feet (500 meters), 

the creation of this reservoir would mean substituting for an average 

force of 500 horsepower, that is altogether useless because of irregularity of the flow, an additional force of 2,000 horsepower that is 

extremely valuable because it may be used at the very season when it 

is needed. Here we have a "seasonal" regularity, which not only 

enables us to meet varying seasonal demands, like those of agriculture or of the distribution of electric light, but which also makes it 

possible, whenever several plants are concurrently engaged in furnishing power for one distributing concern, to come to the aid of those 

plants whose productivity is intermittent and not subject to such 

regulation.

In short, it will readily be seen that the industrial value of a large 

hydraulic plant does not depend solely on the maximum amount of
20 PUBLIC UTILITY OF WATER POWERS.

power that may be produced, but differs considerably as the power 

is produced permanently and regularly or intermittently,, and also 

according to the extent and nature of the irregularity. Unavoidable 

and unforeseen irregularities in power production, due to the effect 

of changes of wind and weather on the condition of rivers, cause an 

enormous diminution in the industrial value of a hydraulic plant. 

But when the production of power is subject to such regulation and 

control as is made possible by reserve supplies of water, fluctuations 

in production may be made to coincide with fluctuations in demand.

The various systems of producing hydro-electric power having been 

characterized, a word should now be said as to the nature of the 

market. Thus considered, hydraulic plants may be divided into two 

very distinct groups (1) isolated plants built in connection with 

various sorts of industrial enterprises, such as electro-metallurgical 

or electro-chemical manufactures, and adapted to the permanent or 

variable needs of productivity of the enterprises concerned; such 

plants, sufficient unto themselves, are essentially private and nothing 

need be said of them except that they are chiefly found in mountainous regions; (2) plants that supply power for one or more enterprises and are designed to furnish the public with motive energy. 

These plants are of interest here because economy requires that the 

various uses of the motive power thus distributed should include a 

sufficient provision for pumping water for irrigation.

The hydro-electric power supplied by such plants will be in demand 

by many kinds of consumers with exceedingly varied needs. For 

illumination the motive power is needed at certain definite times and 

during a limited period of two or three hours on an average day.0

The power needed by motors used in manufacturing concerns is 

required for periods as long as the workday of the laborers. The demands for traction depend on the time-tables of the railway companies or of the street-car companies. All these enterprises, which 

are rather irregular and capricious in the need of power, nevertheless require that power at certain very specific times. It is natural 

that the price which must be paid should be proportionate to the 

specific demands, and this, as a matter of fact, is the practice in 

France, as is shown by the following table of rates customary in 

France:

Cost per Mlowatt-hour.

For Illumination__________ 50 to 80 centimes (10-16 cents).

For small quantities of 20 to 50 

horsepower ____________ 9 to 20 centimes (2-4 cents).

For larger amount of power 

transmitted some distance__ 4 to 6 centimes (8-12 mills).

For power furnished at the business place itself _______ 1 to 3 centimes (2-0 mills).

evidently refers to tbe " peak load " (or lighting. M, 0- L.
HYDRAULIC POWER AND IRRIGATION. 21

The organization of large corporations for the public sale and distribution of power furnished by hydraulic plants is sufficiently advanced in certain parts of France, such as the southeastern region, 

to indicate the essential tendency of such concerns, which is to bring 

together into a systematic unit, by means of electrical connection, all 

the power-producing plants and all the consumers of power in a 

given section of the country.

A consolidation of this sort is being effected between Nice and 

Montpellier by the1 Societe de 1'energie electrique du littoral Mediterraneen. A similar monopolistic tendency is drawing together the 

central steam-power plants, which have been established in the cities 

by the street-car companies, or the older electric-light plants, which 

are still maintained to serve as emergency stations to help out the 

hydraulic plants at times of accident or unusual demands for power. 

It frequently happens that steam plants are operated a few hours 

daily to furnish a sufficient margin of power to insure against possible shortages through unusual demands (peak loads). But the part 

played by such emergency steam plants will diminish to the extent 

that the flow of streams is made more regular through the use of reservoirs and the erection of " regulating " hydraulic plants.

A concern which thus monopolizes, throughout a vast region, all 

the different varieties of hydraulic energy, correcting the weak features of each variety by means of systematic organization and control, engrossing the entire market for power, and regulating the total 

production by virtue of the simple fact that the demand is ever becoming greater and more varied,* possesses such great economic and 

commercial advantages that no independent concern is in a position 

to furnish power for any special purpose at a lower price.

The various uses which we have enumerated, with the exception 

of electro-metallurgical manufactures (which are able to make good 

and complete use of a great hydraulic power plant), can not be 

economically provided with power by the separate concerns themselves. A hydraulic power plant built for the special purpose of 

illumination or traction is necessarily imperfectly and only partially 

utilized, because the unused residues of power are apt to be considerable.

Undoubtedly the rational "trustification" of the distribution of 

hydro-electric power has thus far been confined to southeastern 

France. But, inasmuch as irrigation is most advanced and best 

developed in that region, and inasmuch as the same evolution is 

likely to take place elsewhere, it is interesting to inquire what care 

may be taken under such circumstances to safeguard and foster the 

reasonable needs of agriculture, and under what conditions hydroelectric power may be equitably utilized to pump water for irrigation as well as for the other uses required by the public.
22 PUBLIC UTILITY OP WATER POWERS.

USE OF HYDRAULIC PLANTS IN THE DEVELOPMENT OF

IRRIGATION.

Pending the discovery of new methods of bringing water for purposes of irrigation to the places where it is needed, it would be 

absurd to condemn the old methods and to insist unduly upon the general application of the methods about to be described. Many isolated 

and independent irrigation enterprises will undoubtedly continue to 

be justified; but, while the industrial utilization of streams is made 

on a large scale, as on Durance Kiver and its tributaries, it is questionable whether the separateness of irrigation enterprises does not 

constitute a source of weakness and a hindrance, and whether a possible antagonism of interests in the future might not be avoided by 

bringing together several systems for utilizing the streams.

From purely mechanical considerations, it may at first seem surprising that there should be an advantage in employing expensive 

mechanical devices, such as turbines and dynamos, whose use results 

in considerable loss of energy, rather than in continuing the exclusive 

use of gravitation. But a little reflection suffices to justify this conclusion as to the relative merits of the two systems.

We must first of all eliminate from the discussion the objection of 

" lost energy." Without carrying the comparison very far, it is easy 

to estimate a priori the loss of energy involved in the usual system of 

irrigating by diverting streams losses which are due to the excessive 

slope of small trenches, and, above all, to the fact that the large accumulating channels carry all the water to the highest level of the 

area to be irrigated, without the possibility, as a rule, of diverting 

any considerable portion of the propulsive power of the water that 

is employed at lower levels.

By the use of separate pumps, each of which raises to the necessary level the water needed for irrigating at that particular level, 

the greater part of this loss of energy may be avoided. Moreover, 

very considerable losses of water caused by the long main channels 

may be avoided by a series of separate pumping stations.® Finally, 

whether it is utilized or not, the maximum volume of water flowing 

into a large irrigation trench should always be available. Under 

the system of pumping stations the quantity of water brought to a 

given level corresponds exactly to the requirements of the consumers. 

Without doubt, in the gravity system of conducting the water the 

total waste of water or of power does not greatly exceed the mechanical loss due to electric transformation and to the transmission of 

power made necessary by the pumping process.

a The Bourne channel furnishes a typical example of the magnitude of these losses 

of water, which, in this instance, exceeds half the entire volume that is diverted into 

the channel.
HYDRAULIC POWER ANt> IRRIGATION.

From considerations of original expenditure and trouble of maintenance, the complexity of mechanical and electric installations, compared with the simplicity of a channel which accomplishes this work 

by means of its slope, would constitute a marked disadvantage in 

the new process if we were simply comparing two isolated and 

autonomous enterprises; but our hypothesis assumes that in pumping we have to do with a large enterprise for producing and distributing hydro-electric energy and furnishing water for a large 

number of irrigation areas as well as other public and private uses.

Isolated irrigation plants in this way escape the difficulties connected with the production and transmission of power; they receive 

for a fixed price the power required to carry the water to the desired 

level; and the financial superiority of the pumping station is thus 

due to the fact that the annual expense of the station, added to the 

cost of maintenance and keeping the plant in repair, is lower than 

the annual cost of constructing and maintaining the main channel 

in the system of diverting streams.

The following figures will give some idea of the height to which 

water may be pumped without greater costs than those usually 

incurred in agriculture:

Watering 2.471 acres (1 hectare) of land with a volume of water 

equaling a continuous discharge of 0.035 cubic foot (1 liter) per 

second for six months will mean, if the water is raised 39.37 inches (1 

meter) a power in pumped water of ^\^ horsepower throughout the 

year, or of 42.98 kilowatt-hours. If the total yield of the pumping 

station is 60 per-cent, including dynamo, pump, and pipes, the annual 

consumption of power will be 71.6 kilowatt-hours, and the cost, at a 

rate of £ cent (1 centime) per kilowatt-hour will be 14 cents (71.6 

centimes). If the price per kilowatt-hour is X centimes and the elevation N meters, the annual expenses for pumping the water necessary to irrigate a hectare, according to the formula 0.716 XN, will 

be as follows:

Cost, in francs, of pumping water necessary for irrigating 1 hectare (1 liter

per second).

Height 

(meters).

10..........

20..........

30..........

40..........

50..........

Cost when price of kilowatt hour, in 

francs, is 

0.01

7.16 

14.32 

21.48 

28.64 

36.80

0.02

14.32 

28.64 

42.96 

57.28 

71.60

0.03

21.48 

42.96 

64.44 

85.92 

107.40

0.04

28.64 

57. 28 

85.92 

114. 56 

143. 20

0.05

35. 80 

71.70 

107.40 

143. 20 

179.00
24 PUBLIC UTILITY OP WATER POWERS.

These figures may be compared with the cost per liter per second 

diverted by some of the great irrigation canals in southeastern 

France:

Cost per liter per second (equivalent to watering 1 hectare) of water from canals

in southeastern France.

Canal.

Verdon ... ......... ............ . .. .. .. . .. ... ........................

Capital 

value 

of first 

plant.

Prancs. 

5,000

3,600

2,000

1,600

1,150

Annual 

interest 

at 5 per 

cent.

Francs. 

250

175

100

80

57.59

Even when reduced to this definite basis, the comparison is rather 

difficult to make and is subject to some variation. For the pumping 

stations one may employ either a continuous supply of power furnished at the average price charged by the distributing plant or the 

residues of power provided intermittently at lower prices.

Irrigation plants may, in fact, prove less exacting than lighting 

or traction plants as regards the period and the duration of power 

consumption. They may either utilize regularly and fully the power 

produced continuously by the hydraulic plant, or utilize only for 

certain hours daily the residues which are available in every plant 

that furnishes power to be distributed to a considerable number of 

different concerns.

Intermittent pumping, compared with continuous pumping, involves certain supplementary costs and expenses of maintenance. 

The capacity of the pumps themselves must be augmented as well as. 

that of the main trenches. Moreover, unless reservoirs are built along 

the distributing trenches the soil can be watered only at certain times, 

determined by the times when the residues of power are available. 

These costs and difficulties must be compared with the saving effected 

by the reduction in the price of power. It would surely be equitable 

to insist on a considerable reduction in price for residues of power 

for which no other use than pumping can be found. Two considerations, however, may stand in the way of such a reduction. It may 

happen that the amount of these residues is diminished by the steampower plants that provide power in cases of emergency. We have 

pointed out that this is true in the large power-distributing plant that 

supplies the southeastern part of France. It may also be urged that 

the furnishing of power for irrigation during a period limited to 

six months or less per annum involves leaving, during the remaining 

six months, additional residues of power very difficult of disposal.
HYDRAULIC POJVER AND IRRIGATION. 25

The devices to be adopted to obviate these difficulties and to enable 

pumping stations to obtain their power at the lowest possible prices 

depend on conditions peculiar to each particular plant and region. 

Thus, for example, where streams are fed by melting snow and 

glaciers, as in the valley of the Durance, it is possible to obtain a 

greater supply of power at the very season when the demands of 

irrigation require it. ^ The warmth that fosters vegetation also causes 

an abundance of water in glacier-fed streams. This fortunate coincidence is perfectly satisfactory at the beginning of the irrigation 

period but does not always last to the end. There is often a shortage 

in September in the valley of the lower Durance. The construction 

of large reservoirs, the possibility of which is now being investigated, 

will prevent shortages and at the same time insure regularity in the 

production of hydro-electric power.

In the writer's opinion, the chief advantage of a system of pumping by hydro-electric power is that the energy may be furnished by 

a great distributing plant which supplies a whole region with power. 

This permits dividing the work of irrigation among a number of 

successive stations, erecting at the outset only those that are likely 

to be remunerative, and keeping pace with the natural growth of 

the demand for irrigation instead of tying up capital for a long time 

before it becomes productive. The adoption of such a plan will 

remove the principal cause^of the financial failure of the large irrigation systems recently built.

Again, under this system, the benefits of watering the soil are 

no longer confined to areas that can be reached by the large gravity 

channels which are so difficult to build and require so much time. 

Considering the probable rapid spread and development of large 

distributing plants for hydro-electric power, it may be said that if 

the price charged per kilowatt-hour is fixed low enough, our entire 

territory may be irrigated by pumping on a larger or smaller scale. 

However cheap a kilowatt-hour may be, the areas devoted to extensive farming will be unable to stand a charge of more than $3.25 

to $4 per acre (40 to 50 francs per hectare), and hence can not buy 

the water if it must be carried to too high an altitude, but this will 

not be true of truck farming in the neighborhood of cities. In many 

places it will be profitable to supply both the city and its environs 

by having the same plant provide drinking water, and thus obtaining the large receipts which this involves. Underground waters, as 

well as surface waters, accumulated in reservoirs will then be supplied to the soils which make the best use of them.

Each stream can thus be employed to the best purpose, either as a 

water supply or in producing motive power. Thus water power of 

the Durance, which at the periods of low water does not supply suf-
26 PUBLIC UTILITY OF WATER POWERS.

ficient water for irrigation of all,lands in its lower basin, could 

be used to lessen the disastrous effects of such shortages by developing 

power in the highlands to pump from the Rhone to irrigate a portion 

of the area now watered by one of the canals supplied by the Durance. 

Numerous contrivances to effect this result will then become possible. 

But enough has been said to give some idea of the advantages to be 

obtained. The administrative measures and t]^e legislative reforms 

designed to facilitate these changes, which are under consideration 

by the minister of agriculture, will now be discussed.

MEASURES ADOPTED BY THE MINISTRY OF AGRICULTURE TO HARMONIZE THE DEVELOPMENT OF IRRIGATION WITH INDUSTRIAL UTILIZATION OF STREAMS.

Two kinds of general measures are adopted by the French ministry of agriculture to induce industrial plants that use water power 

to cooperate in the growth and development of irrigation; the first 

aim to make a complete and detailed study of streams; the second 

have to do with the licensing of hydraulic-power plants. A few data 

will be presented on each of these points and, by way of example, the 

special investigations now under way will be indicated.

BUREAU FOB INVESTIGATION OF HYDRAULIC POWER.

Investigation of stream -flow. It is evident that the rational development of hydraulic power, involving the employment, at the lowest possible price, of a portion of the power for pumping water for 

irrigation must be based above all on a thorough knowledge of the 

precise nature of streams and of all other surface accumulations of 

water that admit of direct use. Investigations of this sort were authorized by the minister of agriculture in 1903 under the joint direction, so far as the Alpine region was concerned, of Chief Engineer 

R. de la Brosse and the present writer. The expenditures in the region of the Alps alone amounted to about $20,000 (100,000 francs). 

It will be of advantage to summarize from the report of that investigation,a published in 1905, the main features of the plan then pursued, which was entirely analogous to that being followed upon a 

larger scale by the engineers of the water-resources branch of the 

United States Geological Survey.

The plan has a twofold object first, the purely physical investigation, geographic, meteorologic, and hydrographic, of streams and 

their beds; second, the economic investigation of the questions raised 

by the utilization of the energy produced by water or by the use of 

water.

"Ministere de 1'agriculture Annales Direction de 1'hydraulique et des ameliorations 

agricoles, fasc. 32; tome 1, Organization et compte-rendu des travaux; tome 2, R6sultats 

des etudes et travaux.
HYDEAULIC POWER AND IRRIGATION. 27

No one will contend that it is possible in the hydrographic study 

of streams and their channels to pay attention to the lines of jurisdiction that divide the different Departments of the Government. 

The economic and legal discussions of the matters fundamental to 

the " white coal" industry have brought out certain facts clearly. 

The best utilization of a stream will almost always be a varied one, 

recognizing the complex interests of agriculture, manufactures, and 

public-service utilities of all kinds. It is therefore imperative that 

the entire subject be studied regardless of artificial lines of subdivision not in order to place obstacles in the way of manufacturers, but to provide them with precise data, lacking which 

they might undertake disastrous schemes, and also to furnish a basis 

of action for the Government. The " white coal" congress, held at 

Grenoble in September, 1902, adopted a resolution to this effect, which 

contained valid arguments. If we compare the spread of the hydroelectric industry in the French, Swiss, and Italian Alps, we will discover that the exact determination of the hydraulic power of our 

streams is much less advanced than in the neighboring countries, 

and that the meagerness and inaccuracy of the data upon which the 

first enterprises were launched in France have been the cause of some 

unsatisfactory results. The following statements are applicable only 

to the Alpine region comprised between the Rhone and the FrancoSwiss and Italian frontiers.

Number of measurement stations. The number of stations which 

should be maintained in the Alps to determine with some degree of 

precision the hydraulic power of the streams can not be estimated at 

less than 200, which would mean an average of 20 for each Department, or 0.30 per square myriameter (1 station for each 129 square 

miles). The stations already built are still far from being equipped 

with all the apparatus necessary for doing good work, but efforts are 

being made to equip them, as rapidly as the available funds permit.

Utility of a preliminary estimate. It will be several years before 

we are in a position to give accurate information concerning the 

regime of Alpine streams, but we have undertaken from the start to 

coordinate such data as we possess, making use even of those that are 

incomplete and hypothetical, so that it would be possible to prepare 

a sort of provisory inventory, which might be rectified from time to 

time and brought up to date. This first task will make plain the 

deficiencies in data. It will be a sort of sketch, with blank spaces 

that will be gradually filled out and perfected by substituting every 

year, for the approximate data previously used, the more exact figures resulting from a longer experience.

Practical nature of the results to be obtained. Our principal purpose has been to give our investigations a practical character which 

would permit their immediate utilization subject, of course, to the
28 PUBLIC UTILITY OP WATER POWERS.

reservations imposed by the approximate nature and the small number of the investigations already made. It may not be a waste of time 

to offer certain explanations upon this subject. To build and equip 

a channel for diverting part of a stream it is necessary to know its 

slope, its volume, and the speed of its current.

The determination of slope, although it costs something, offers no 

difficulties. It is done by finding the difference of levels. The 

division of public surveys in France is engaged in placing in all the 

Alpine valleys numerous bench marks, by means of which the total 

slope of different streams can be calculated. This operation, if done 

once for all, will greatly facilitate the erection of power plants; 

meanwhile special surveys will have to be made for those plants which 

it is proposed to erect now.

The flow and volume of the streams, however, can not so easily 

be determined, but as they constitute the most uncertain and variable 

elements of hydraulic power, it is important that the fluctuations 

be measured exactly. Not only should we know the flow at extremely 

low or extremely high stages, but also the duration of the various 

intermediate conditions during the year, and the times that they 

occur. Moreover, we should possess data covering a large number 

of years in order to determine averages with which to compare extreme fluctuations in very dry or very wet years. French manufacturers, rightly enough, have not been content to utilize a minimum 

flow; they employ also, during a certain number of months, a portion of the average volume; and it would help them greatly to know, 

upon the basis of long-continued investigation, the elements that 

affect the fluctuations in the flow of the streams.

We have not been satisfied, in seeking an exact method of measuring the industrial value of a stream, to make use of such vague expressions as " ordinary low stages," or " ordinary average volumes," 

or even of other more exact terms like "extreme low-water stage," 

which, in spite of their scientific precision, do not furnish a practical 

basis of evaluation. It was suggested at the " white coal " congress 

that the industrial value of streams not artificially regulated by reservoirs be indicated by two volumes, viz, the normal level below which 

the stream falls, in an average year, during ten days in the year? and 

the normal volume below which the stream falls during one hundred 

and eighty days in the year.

The paper presented to the Grenoble congress on this subject 

included useful data for the graphic determination of these two 

normal volumes, and for deducing all the requisite practical conclusions from the curve of average monthly volumes. For more 

details the reader should consult the original paper," bearing in mind

 Tavernier, Rene", Influence des neiges and des glaciers sur le regime des cours d'eau: 

Annales Direction de 1'hydraulique et des ameliorations agricoles, fasc. 32, tome 1, pp. 

145-153.
HYDRAU.LIC POWER AND IRRIGATION. 29

that the determination of normal volumes by either of the methods 

indicated is based on a knowledge of the average daily flow deduced 

from hydrometric readings by the aid of a formula specially designed 

to determine the coefficients needed.

This method of estimating hydraulic forces employs only hydrometric observations and measurements. It does not make use of rain 

measurements, geologic and glaciologic data, etc., although such 

studies are proposed, and it is evident that great practical interest 

attaches to the determination of the different elements that affect 

stream flow in each basin and of the extent to which they contribute 

to permanency in the volume of the stream. When these studies have 

been made we shall be in a position to understand the original causes 

of those variations which fix and limit the amount of hydraulic 

power; and in the course of time we shall discover*miles which 

will permit us to use a simple substitute for the direct and always 

very laborious method of measuring the flow of water.

After a period of active investigations, which shall take up in turn 

the different mountainous regions, the corps can be gradually reduced 

to a single central bureau, which shall collate <and publish annually 

the results of the observations made, and revise periodically the general inventory of hydraulic force.

Annual publication of results. The annual publication of observations, measurements, hydrblogic researches, etc., should be regarded 

as essential, for this will bring to the knowledge of persons and communities who contemplate utilizing the streams a collection of facts 

of continually increasing interest.

Having in mind these general considerations, we have been led to 

divide this report on the work of the bureau into several chapters 

and appendices, which treat each special topic separately, as follows:

Chapter II. Stations for gaging volumes of water. 

Chapter III. Measurement of rainfall and snow. 

Chapter IV. Description of drainage basins. 

Chapter V. Surveying. 

Chapter VI. Publications.

Moreover, the appendices contain a number of documents concerning various special questions, such as measuring instruments, the first 

tentative census of hydraulic force, the organization of this work 

abroad, the theory of volume measurements in streams with changeable beds, typical formulas, photographs of various instruments and 

appliances, etc.

COMMITTEE OF SCIENTIFIC INVESTIGATION.

By a decree of March 31, 1905, a committee composed of scientific 

agriculturists, scientists, and engineers was created in the ministry 

of agriculture as a part of the division of hydraulics and agricultural
30 PTJBI/IC UTILITY OP WATER POWERS.

improvements to make a study of the various questions of interest to 

the bureaus in this division. A second decree of December 26, 1905, 

increased the membership of this committee from 14 to 24 and 

widened the scope of questions to be studied.

Some of these questions are allied to the subjects treated in this 

paper, such as the general geologic and statistical study of underground streams, surveys of river profiles, the experimental determination of the value of coefficients used in the formulas for the volume of 

canals, the study of glaciers, and the study of rainfall and snow.

LAWS AND REGULATIONS FOB REFORMING SYSTEM 

OF LICENSES AND PERMITS FOR HYDRAULIC POWER 

PLANTS.

The French regulations take cognizance of two kinds of streams 

(1) rivers that are navigable neither for vessels nor for rafts, over 

which the French minister of agriculture exercises certain police 

powers and in which the riparian landowners possess certain rights;

(2) streams that are navigable by vessels or rafts, which lie within 

the public domain a*id which are administered by the minister of 

public works.

It should be added that the conduits used for the transmission of 

electric power, which constitute an essential part of hydraulic distributing plants, are placed mainly under the control of the minister 

of public works.

The report of 1900, referred to on page 12, attracted the attention 

of the French Government to the insufficiency of the existing legislation on the evolution of the new " white coal" industry, and the 

minister of public works and the minister of agriculture prepared a 

bill which they presented to the Chamber of Deputies July 6, 1900. 

The principal object of this bill was to make all hydraulic power 

plants of more than 200 horsepower so-called " public " plants, and 

under its provisions large plants for the industrial utilization of 

streams could be built only after a license, had been obtained for a 

limited period by petitioners considered to be the best among those 

seeking this privilege; that is to say, the petitioners who offered 

the greatest advantages to the community.

The bill of 1900, which guaranteed to the nation the control of all 

large hydraulic power plants and retained for the Government complete control over the future development of the various public utilities, aroused vigorous protest from manufacturers, who wished these 

plants to retain the character of purely private enterprises, and, 

above all, from certain intermediaries, who, having speculated in 

future riparian rights, were threatened with the entire loss of their 

possible profits if these large plants acquired the character of 

" public " concerns,
HYDRAULIC POWER AND IRRIGATION. 31

The opponents to the bill had in mind mainly those streams navigable by neither vessels nor rafts, along which property owners enjoyed certain rights. They succeeded, in 1903, in obtaining consideration of a new plan for revising the existing laws, a plan which had 

reference exclusively to streams of this character. A bill was proposed on behalf of the Government, January 15, 1904, by M. Mougeot, minister of agriculture. During several sessions of the legislature this bill was investigated and resulted in a report presented to 

the Chamber of Deputies on February 21, 1908, by M. Lebrun."

Another proposed law, relative to the establishment of power 

plants on watercourses navigable by boats or rafts, submitted by the 

minister of public works, has been reported on by M. Baudin B to a 

competent committee of the Chamber of Deputies.

In Italy, after extended controversy, and after a series of laws 

had been proposed and rejected, there was presented to the Senate on 

December 15, 1908, a simple text of law providing for cooperation 

between the ministers of the interior, agriculture, and commerce and 

labor.

In Switzerland several Cantons have, since 1899, modified their 

legislation. These modifications, together with the results of exploitation of the principal hydro-electric installations, were discussed in 

1906 ° by M. Eeuss and M. Cordier. The discussion gave special 

consideration to the new law of the Canton of Berne, which in 1906 

was still in process of revision. Subsequently this process was completed and on May 26, 1907, the law was submitted to popular vote 

and approved.

Without going into the details of the controversies to which this 

long discussion of legislative reforms has given rise, it may be useful to explain in the most general terms the nature of the conflict 

which has arisen between manufacturers and engineers.'*

a Portions of this report, together with proposed law, appears on pp. 74-85.

6 Portions of this report, together with the proposed law, appears on pp. 85-92.

c Annales de 1'hydraullque et des ameliorations agrlcoles, fasc. 34, pp. 189-308.

d References to these discussions appear in the following papers :

Les forces hydrauliques des Alpes leur r61e economique, leur avenir. Rapport presente a la Societe d'e'conomie politique de Lyon, par Rene Tavernler, Ingenieur en chef 

des ponts et chaussees.

Les grandes forces hydrauliques des Alpes. Rapport pre"sent6 a. la Societe d'etudes 

economiques de la Loire, par M. Tavernier.

La houille blanche. Discussion du rapport precedent.

L'utlllsatlon des chutes d'eau dans les Alpes frangaises, par M. Ren6 Tavernler. Conference a la Societe des ingenieurs civils de la houille blanche, Grenoble, 1902.

Influence des nelges et des glaciers sur le regime des cours d'eau, par M. Rene Tavernier. Conference faite an Congres de la houille blanche, Grenoble, 1902.

Etude hydrologique du bassin de montagne, par M. R. de la Brosse, ingenleur en chef des 

ponts et chausse'es. Conference falte au Congres de la houille blanche, Grenoble, 1902.

Legislation des chutes d'eau, par M. Ch. Pinot, anclen Ingenieur des ponts et chausse'es.

De I'litilisation des forces hydrauliques. Etudes des modifications a. apporter a. la 

legislation esistante. Societe d'etudes legislatives, Nos. 1, 2, 3, et 4.

Etude de geographic humalne. L'irrigation. Ses conditions geographlques, ses modes 

et son organisation dans la ptoinsule et dans 1'Afrique du Nord, par M. Jean Brunhes. 

Compte-rendu par M. Rene" Tavernler. (Annales des Ponts et Chaussees, 1903, ler 

trimestre.)

La rlchesse du Rhone et son utilisation. Rapport presente & la Societe d'economie 

politique de Lyon, par M. Rene Tavernier.
32 PUBLIC UTILITY OP WATER POWEES.

The manufacturers argued as follows:

We provide, on most favorable terms, the power needed by important public 

utilities. The greater the liberty accorded to us the better we will perform this 

task, for then it will be easier for us to bring together a large number of 

power-producing plants, which supplement each other in supplying the public 

utilities, whose needs are both intermittent and exacting.

To this the engineers made the following answer:

This plan is an excellent one, and entirely in conformity with the economic 

needs of the " white coal" industry; but, if the underlying principle is carried 

to its ultimate consequences, as must happen sooner or later, it will lead 

inevitably to a monopoly in each region, or perhaps to a national monopoly.

Possibly large-scale industries might be able, at least in the beginning and as long as there are still any waterfalls to be utilized, to get 

along in spite of this monopoly, although it seems singularly dangerous to place forever in the hands of a few persons the control of 

what is in reality bound to become a raw material for all industries, 

large or small. A small plant, inevitably tributary to the monopoly 

which distributes power in its particular region, as well as public 

utilities like illumination, transportation, and irrigation, all of which 

are necessarily localized, would manifestly be in no position to discuss 

the prices asked for furnishing power, when this power is furnished 

by the " white coal" trust. There can be no doubt that the monopolistic exploitation of this source of power, if completely unhampered, 

will be able to provide private concerns, as well as public utilities, 

with the ertergy needed at the lowest price. It must be asked, however, to what extent will these " masters of the market" be disposed 

to share with their obligatory customers the savings which they effect 

in the production of power. The experience of the past furnishes 

an answer to this question. If we judge all the old practices of gas 

companies, adhered to until electricity became a competitor, the 

producers who enjoy a monopoly have heretofore scarcely ever 

applied rational methods of fixing charges by lowering prices to those 

who are unable to pay high prices while at the same time charging 

higher rates to other consumers. Almost always they have preferred, 

whenever they were given the choice, to make their profits by selling 

small quantities at high prices rather than by selling large quantities 

at small prices. It is, of course, possible that the concerns for the 

distribution of " white coal" power will constitute a happy novelty, 

and that they will understand their own interests better than the 

gas companies formerly understood theirs. No one, however, can 

regard as superfluous the methods by which the proper branches of the 

Government may constrain a monopolistic corporation producing 

hydro-electric power to adopt a policy of management which will 

insure the greatest advantage to the business community at large.
HYDRAULIC POWER AND IRRIGATION. 33

At the present time none of the bills concerning the establishment 

of hydraulic power plants have been passed. The Government is 

therefore obliged to carry on this work upon the basis of existing law. 

We shall indicate in the following paragraphs what the minister 

of agriculture has been able to do in certain special cases in regard to 

irrigation.

With regard to the means for transporting electricity, however, 

very minute regulations have been enacted. The law of June 15, 

1906, has been followed by several decrees governing the details of 

their enforcement. The principal decrees are the following: That 

of February 7, 1907, creating a permanent governing committee on 

electricity; that of October 17, 1907, organizing the supervision of 

power-distributing plants; that of April 3, 1908, supplementing the 

fundamental features of the law of June 15,1906; that of August 20, 

1908, providing for a standard set of specifications.

The organization for supervising the electric transmission, dealing with technical questions affecting public security rather than with 

the commercial problem of lowering prices, is of too recent date to 

justify any conclusions with regard to its possible advantageous 

effects on irrigation in particular.

SPECIAL STUDIES MADE BY MINISTER OF AGRICULTURE.

The possibility of using the hydro-electric power for irrigation 

comes up in a peculiar form in the valley of the Rhone, in all the 

lateral valleys bordering on the Alps, and in the southwestern parts of 

France, which are watered by streams rising in the Pyrenees.

The regimen of streams flowing from the Pyrenees is influenced 

by numerous lakes, whose utilization has been systematically planned 

by the minister of agriculture for a number of years. It is evident 

that these works, originally planned for the specific purpose of reinforcing the supply of water for the streams flowing out of the tableland of Lannemezan, will also have a beneficial influence on the 

hydraulic power systems of the valleys that are concerned. The lakes 

are situated at very high altitudes. Their utilization will create intermittent power, which at certain times may be valuable for irrigation. If the agricultural department will not use it directly, it will 

at least obtain from those who profit by it a compensation which 

can not be better used than for the extension of irrigation.

In the basin of the Durance the problem of reservoirs is no less 

interesting than in the Pyrenees, but its solution is more difficult. 

Sites for reservoirs of large capacity have long been found and 

examined on the Durance itself where it joins the Ubaye, as well as 

at different points in Verdon. Such reservoirs could be used to

23321 No. 238 10 3
34 PUBLIC UTILITY OF WATER POWERS.

counteract the disastrous shortages of water experienced in some 

years by the large irrigation channels supplied by the Bassa-Durance. 

It is to be hoped that these reservoirs will soon be constructed. Then 

the Government, which will reinforce lay large reserve supplies of 

water the hydraulic system of the Durance, the main source of power 

for the entire southeastern part of France, will be in a position to obtain at low prices from the power-distributing companies who profit 

by this state of affairs the power needed for irrigation.

Nowadays the system of licenses still in vogue on streams included 

in the public domain (the Durance is classed as navigable by rafts 

throughout most of its length, from Embrun to the Rhone) enables 

the division of agricultural hydraulics to obtain from the motive 

power of the lower Durance large quantities of hydro-electric power 

taken at the generating plant for very low prices, varying according 

to the periods of delivery from 0.01 to 0.015 franc (2 to 3 mills) per 

kilowatt-hour.

One important question which is now being studied will provide 

an opportunity for the bureaus connected with the division of agricultural hydraulics to deal adequately with the question of furnishing at low prices the power needed to pump water for irrigation. 

The question arose in connection with a large undertaking to irrigate 

the low plains situated on the right bank of the Rhone near Nimes 

and Montpellier. In 1847 Aristide Dumont, engineer of bridges and 

roads, first suggested diverting from the Rhone 25 cubic meters (883 

cubic feet) a second for irrigation.

After numerous modifications the programme finally adopted in 

189T consisted in building three independent diverting channels discharging a total of 1,660 cubic feet (47 cubic meters) of water. The 

total cost was estimated at $37,600,000 (188,000,000 francs). The 

plan was to be carried out as soon as there were enough pledges for 

the irrigation to require a total of 1,060 cubic feet (30 cubic meters) 

discharge. The water was to be sold to the cities at a continuous 

flow, at the rate of 1,000 francs per liter per second,0 and for watering purposes in intermittent supply at the price of 63.50 francs per 

liter per second ($1.50 per million gallons at about 50 cents per acrefoot).

This vast undertaking has stirred up public opinion for fifty 

years and has given rise to sharp controversies which may be found 

in the report of the writer on " The wealth of the Rhone and its 

utilization."

There were two parties to the debate, one side representing the 

interests of navigation and the other the farming interests. The

0 Equivalent to about $5,700 per second-foot of constant flow, or about $8 per acrefoOt per year, or about $24 per million gallons per year.
HYDRAULIC POWER AND IRRIGATION. 35

failure to carry out successfully the programme of 1897, moreover, 

is due less to the opposition which it encountered than to the impossibility of obtaining the number of pledged subscribers for the 

use of the water that was considered indispensable for the successful 

operation of the enterprise.

To-day it seems that, thanks to the installation of hydraulic power 

plants, these old quarrels are about to die out. The question of the 

Khone irrigation channels, stirred up by the dolorous and disturbing 

crisis in wine production which is now being felt by the southern 

part of France, is being so modified as to bring us nearer to a solution 

that will harmonize rather than accentuate divergent interests.

A recent decision of the minister of agriculture has intrusted the 

writer of this paper with the task of devising an irrigation system 

based on the pumping of water taken from the lower Rhone. The 

most important part of this investigation will consist in finding 

how to furnish power at the lowest price for the pumping stations, 

either by Compelling the future holders of licenses for hydraulic 

plants to concede specially low terms, as has already been accomplished in connection with the motive-power syndicate of the lower 

Durance, or, if it should prove necessary, to elaborate a complete 

plan for the erection of an entirely new series of plants for furnishing power to all the concerns that might need it in the region under 

consideration.

CONCLUSION.

The United States of America, at least in the opinion of those who, 

like myself, are yet unfamilar with the country, is par excellence the 

land of great business enterprises, because of wonderful personal initiative, the power of large masses of capital, and the intensity of local 

life due to the economic independence of the several States. I am 

sure that these elements will play an important part in the exploitation of the hydraulic wealth upon which is so largely dependent 

the development of such regions as the one in which this congress is being held [Albuquerque, N". Mex.]. But I have also 

noted, with equal gratification, the powerful cooperation in the 

development of water power that is being provided by the Federal Government through the Departments of the Interior and 

of Agriculture, without which isolated and independent enterprises 

would run a great risk of failure. The marvelous work of the Geological Survey and of the Reclamation Service is too widely known 

to require any word of praise from me at this time and place. But 

I wish to draw one inference from this general phenomenon of the 

increasing intervention of the central Government. We appear to be 

gradually recognizing more and more fully that hydraulic wealth is
36 PUBLIC UTILITY OF WATER POWERS.

a collective wealth liable to be wantonly wasted if it is not used cooperatively. If water, which has so long divided mankind, seems now 

about to bring them together for the common good; if there is to be 

harmony between interests which long have been antagonistic all 

of which miracle is to be wrought by the fairy named Electricity it. 

will everywhere be necessary for a final tribunal to intervene on behalf of such harmony in the interest of the community, regardless 

of administrative and political boundaries, with which hydrologic 

phenomena have no concern.

A profound consciousness of this new sort of interdependence has 

given rise to the measures that are being taken in France by the minister of agriculture to enable irrigation to benefit by the utilization of 

hydraulic energy.
FRENCH AND

THE DEVELOPMENT

It is not purpose* 

Italy, and Switzerla

have been written on 

too extended space.

CHAPTER III.

FOREIGN LEGISLATION RELATIVE TO 

OF WATER POWERS."

By RENE TAVERNIER.

PRACTICAL UTILITY OF THE STUDY.

to discuss water-power legislation in France, 

id from the point of view of the lawyer or the

historian. The simplest analysis of the voluminous treatises that

the subject in the three countries would require

Most of the authors of such treatises are lawyers 

who have been inclined to study the past; when considering the future 

they have endeavored to preserve the old traditions, even in the most 

modern application. Practical men, on the other hand, who desire 

a quicker development of the industry, try to accommodate themselves as well as possible to the antiquated laws rather than endeavor 

to institute a reform and have the laws corrected, dreading the intervention of the Government and fearing to avail themselves of its 

almost, indispensable cooperation, lest they provoke undesired interference.

It is difficult to imagine a greater disparity than exists between 

the character and scope of the present French legislation and the 

actual state of affairs with reference to water-power development. 

The necessity for bringing these laws into harmony with present 

conditions has been generally recognized, and it has been shown that 

the requirements iu.posed by these ancient laws are insecure and 

transitory. We net! not enter into an investigation of Roman or 

feudal law to find .he origin of the present law with reference to 

watercourses. It will suffice to state that in France watercourses 

that are navigable Jor neither ships nor rafts belong to the owners 

of adjacent lands; i:.i Switzerland control is retained by the Cantons 

and communes; B ami in Italy the waters are public property, concessions for developme. it being issued by the Government.

"A translation of chapter 3 of M. Tavernier's report, made in 1900, " Les forces hydrauliques des Alpes en Francs.," referred to on p. 12.

6 The Canton of Switzei. and corresponds to the State of the United States ; the commune 

corresponds to the county Since this report was written the control has passed to the 

Federal Government.

37
38 PUBLIC UTILITY OF WATER POWERS.

Before the introduction of electricity water powers were employed 

only on small tracts of land bordering the watercourses, but recent 

progress in electric transmission has made it possible to extend their 

use over wide areas. Whereas formerly an application by a riparian 

owner for a license to use water, either for irrigation or for a mill, 

meant only that he would use the water for specific purposes on his 

own property, now the use of water power has entered a new field 

and new financial benefits are derived from it. Consequently new 

laws and regulations have become a necessity.

FRENCH LEGISLATION.

LAWS AND [REGULATIONS IN FORCE.

Applications for the establishment of power plants along nonnavigable Avatercourses in France were, by circulars of October 23, 

1851, December 26, 1884, and March 2, 1898, made subject to certain 

regulations. More recently the administration of watercourses has 

been made the subject of a law, promulgated April 8, 1898, article 12 

of which anticipates the enactment of a new law providing for 

broader public control than that afforded by the circulars mentioned 

above. It should be stated, in connection with subsequent quotations 

of certain passages from the work of M. Delbet, that the legislation 

of 1898 has not settled the question of the ownership of power privileges and has not brought thereinto any new principle. The ownership of the river beds by the riparian proprietors is conceded, and 

there is no separation of the power sites from the watercourses in 

general.

This law, promulgated after consideration of the matter during 

a period covering nearly a century, shows a very plain disregard of 

modern needs and requirements. It is said that the Chamber of 

Deputies wished explicitly to give to the riparian owners on the 

watercourses the control of power privileges. To this the Senate 

was opposed. In this connection, M. Delbet, deputy, in his report of 

July 12, 1897, says:

The proposed law does not deal directly with the ownership of waterfalls 

not actually operated. The commission of the Chamber in 1888 wanted especially to prevent any encroachment by the Government on the rights of private 

property and the arbitrary disposal thereof. The commission thought that a 

special law covering this point could be framed after its utility had been 

proven; but, as it was of importance not to retard any longer the vote on this 

paragraph of the rural code, consideration of this matter of comparatively 

small importance was omitted, in order to avoid a new discussion that probably would have resulted in the failure of the entire measure through nonconcurrence of the Senate.

It seems impossible to modify the rules defining government intervention in matters of power-plant regulation without creating a
FOREIGN LEGISLATION RELATIVE TO WATER POWERS. 39

new law. Such intervention, if reduced to a minimum, would fail 

to effect necessary reforms. 

JURISPRUDENCE.

The Government does not intervene in an ordinary disagreement 

unless it becomes necessary to protect the riparian owners from 

damage to or infringement of t^eir water rights. To make such 

intervention perfectly legal, broader powers should be assumed. Indemnity for private damages and the defense of private rights are 

adjudicated in the lower courts, except where the rights of third 

parties are involved. In spite of many commentaries, circulars, and 

decrees specifying the scope and application of the law, the limit of 

administrative power has always been most uncertain. Engineers 

are greatly embarrassed by the opposition encountered in their work. 

They frequently have to act as intermediaries between opposing parties for the purpose of settling disputes out of court. The Government does not,, as a general rule, concern itself with the verification 

of the petitioner's claim that he owns the necessary tract of land; it 

does not even specify the amount of water permitted to be withdrawn. 

Consequently the privileges actually granted may be utilized" only 

in part, or not at all, and the nation has no right to interfere. Neither 

does the Government concern itself with isolated claims for damages 

inflicted on downstream owners by upstream diversions. There 

results, in effect, confiscation of the property rights of the greater 

number of people for the benefit of the fewer, and this is made more 

serious by the fact that the right, as created under the water regulation, is perpetual and without a forfeiture clause.

Few real difficulties are encountered with such a law so long as 

it applies to the short diversions established by owners of rights 

within their own property. The right to a waterfall created under 

this law is, in effect, an extension of the general right of ownership 

in the water and, like this general right, it is perpetual and absolute. 

It is singular that such an extension of the administrative permit 

appeared necessary. It would have been more logical to vest the 

ownership of the waterfalls specifically in the owners of the banks, 

as was at first intended by the legislature of 1898. M. Picard explains why this was not done.* The reasons were as follows: First, 

the slope of the river bed between the limits of the property of a 

single owner is not, in most places, sufficient for the development of 

power necessary in the operation of a plant of important size. Furthermore, it would be very difficult to induce the bank owners to 

combine their partial powers and thereby create a common power 

susceptible of development and utilization to the profit of the whole

"Traite des eaux, vol. 1, p. 250.
40 PUBLIC UTILITY OF WATER POWERS.

community or of one of the members thereof. The resistance of one 

riparian owner would be sufficient to render the resource unavailable, 

to the great detriment of the public interest.

Accordingly, for the reasons set forth, the legislature of 1898 

explicitly refused in all cases to unite the ownership of the water 

with the ownership of the banks. And so, legally, under the new 

law, the actual water itself is nonexistent (res nullius), although, as 

in the past, it is subject to private appropriation by the person who 

first makes application for an administrative permit to make beneficial use thereof.

DEFECTS OF THE PRESENT LAW.

Under present conditions the difficulties encountered in the development of hydro-electric plants are almost intolerable. An installation 

of such character generally involves the diversion of the total lowwater flow of a river for several miles along its course. It affects 

the interests of hundreds of persons, including the owners of lands 

crossed by conduits or occupied by the plant as well as the owners of 

the river banks. The founders of the great hydro-electric power 

plants in Isere and Savoie did not at first apply for government 

license; this they did after they had quieted all objections by procuring the necessary bills of sale, contracts, and other legal documents. 

But this practice is no longer effective, because the landowners are 

becoming conscious of the value of the water powers and are less 

easily persuaded to part with their rights than formerly; also because the benefits that have been realized have given rise to an outburst of speculation. A new class of speculators, properly called 

obstructionists, has appeared. These people, by purchasing a few 

lots at different places, control the situation and completely prevent 

water-power development unless the promoting interests accept their 

terms. As a result of this, it frequently happens that power sites 

of first choice have to be abandoned for less convenient but more 

easily attainable ones. If one considers the enormous capital invested 

in electro-chemical and electro-metallurgical industries; if one knows, 

on the other hand, the importance of transmission to the industries 

which would, without it, be compelled to locate at great distances 

from their supply of raw material and far from their market; and if, 

finally, one takes account of recent happenings along this line, he can 

not but perceive that there exists a condition of chaos and dissatisfaction. Such practices are destructive of public confidence, public 

morals, and general public economy. Considered even from the 

standpoint of private initiative, they are as pernicious as are the laws 

that make them possible, but when public interest and the duty of
FOREIGN LEGISLATION RELATIVE TO WATER POWERS. 41

the nation are considered the reproaches that may be cast on the law 

are very forcible.

The Government should intervene in the interest of public safety. 

It should regulate the construction and operation of all reservoirs 

and conduits. The failure of such structures, exposed as they frequently are to high pressures induced by great hydraulic heads, is 

liable to cause great loss of life and destruction of property. A 

second reason for government intervention is that, before granting 

a new concession and thereby creating a new right, which covers all 

the previous rights but which constitutes a sort of special right, 

the Government should satisfy itself that the applicant for concession, whom the outsider is powerless to oppose, is, in reality, 

capable of installing and operating the prospective works. It is a 

question of public morals and also one of general economy. A third 

reason for government intervention is that it is highly desirable that 

the industry which has acquired a right by purchase from intermediaries, who sell to their advantage a right to water power created 

by administrative act, shall be protected against the possibility that 

the title to the property shall be clouded by the appearance of some 

accidentally forgotten owner, who will create disturbance by subsequently selling his interest to some adversely disposed person. This 

does not apply to small developments but to hydro-electric power 

plants which represent a large outlay of capital. It is often the case 

that, at an unexpected moment thanks, it is said, to the connivance 

of the administration the integrity of such an investment is compromised by the appearance of old claims. From considerations of 

general economy and of public interest it is intolerable that the 

capitalization of so valuable a natural resource shall be held in 

check by so many obstructions that in certain cases even the appurtenant works necessary to the completion of .the development can 

not be established, in default of the necessary ground.

To avoid all these abuses without modifying legislation it would 

be necessary for the administrative authorities to subject the proposed projects to a minute examination, to satisfy themselves that all 

necessary preliminary arrangements are made, all necessary lands 

purchased, and all rights acquired. It is believed that even such precautions would not be entirely sufficient, because even where all such 

provisions were fully complied with, the administration would still 

be without power under existing law to force the grantee of the right 

to utilize the water power to its full capacity and in a rational 

manner. The existing law does not fix the amount of water to be used, 

and it makes no stipulations except a time limit placed on the construction of works and provides no forfeiture for nonoperation of the 

works and nonutilization of the water. In other words, the adminis-
42 PUBLIC UTILITY OF WATER POWERS.

tration creates an unlimited and exclusive right to a resource, without even imposing on the grantee the obligation of using it and without giving to him the means of so doing, if he meets with opposition 

from outside parties.

In all the preceding critical analysis, the intervention of the nation 

has been regarded solely from considerations of the security of public 

interest in respect to water rights and of the principle that the nation 

should not abandon control of the natural resources without at least 

imposing the obligation of their utilization. It is undeniable that on 

all these points the laws in force do not permit the administration 

to exercise such absolute control as we have pointed out.

The method of utilizing water power will now be considered. 

Under existing law. a holder of a concession for light and traction 

may endeavor to acquire also a concession for a power plant and for 

some industrial establishment. As the interests of two such persons 

in the same region may clash, it may occur that both parties are defeated in their purposes, or that one is favored at the expense of the 

other. Vast public interests may be damaged in this way, and work 

of the greatest importance may be frustrated. There is no legislation 

at present to remedy this condition. In fact, the intermediaries who 

exploited the first water powers in the French Alps were not concerned with enterprises of public interest, and it will be recognized 

that, on account of the poverty of the people in the region in which 

they are located, such enterprises can not be immediately productive 

of the greatest benefits.

In examining the list, set forth in statistical tables, of the large 

hydro-electric developments recently established in France, in Switzerland, and in Italy, one can not but be impressed with the great 

and characteristic differences in the uses to which water power is 

put. In France the great developments are largely private and are 

devoted to electro-chemical and electro-metallurgical industries. In 

Switzerland and Italy the developments are great public enterprises 

engaged in the transmission and distribution of power in the open 

market for traction and other purposes. This is due, no doubt, in 

part, to the fact that the French Alps have a smaller population and 

fewer industries than have the Swiss and Italian Alps; and in part 

also to the insufficiency of French legislation.

PROPOSED REFORMS.

The difficulties encountered under existing law, on the one hand 

by those who are trying to operate large water powers and on the 

other by the government representatives charged with the application of apparently inapplicable and insufficient laws, having been 

summarized, it is now incumbent on us to show what reforms are 

proposed.
FOREIGN LEGISLATION RELATIVE TO WATER POWERS. 43

The first and principal reform should consist of the substitution 

of concessions a or franchises in place of the present license or mere 

permission. These concessions should be limited to a specified time 

and to a specified hydraulic power. They should include the usual 

clauses of redemption and forfeiture, although they need not necessarily confer upon the grantee the right of expropriation, resort to 

which in each case should be determined by its effect on the public 

interests, present and future.

The granting of concessions only for the large enterprises and the 

continuing to issue permits for the smaller powers will quiet the apprehensions of those who persist in considering the water powers as 

private property, or at least as a natural extension of private property. Such owners say, " If a fall is entirely on my property, if I 

am the owner of both banks, why should the Government oppose 

my using the water at my convenience, provided I return it at the 

boundary of my grounds, in compliance with article 644 of the civil 

code? If a number of owners should unite and transfer their rights 

to an individual, how could the Government refuse to that individual 

the same rights it grants to the original owners? [Referring to 

simple permits.] Is it not extraordinary that it should claim to have 

the right to enter upon private property and place there, for the 

development of power, a concessionnaire of its own choice ? "

The premises upon which these arguments are based are incorrect. 

The proprietor of both banks of a stream is not refused the right 

to develop the water power; on the contrary, he is denied the right of 

not using it. In fact, in the development of water powers, as in all 

other enterprises susceptible of being considered public utilities, the 

private citizen is freely allowed to realize a profit from and on his 

possessions. It is not intended to crowd out the little owner and to 

prevent him from using the small privileges for his small enterprises. 

It appears necessary to reconcile the opposing views and to preserve, 

in general, the system of granting permits for water powers of less 

than 200 horsepower, while the larger powers, which are destined to 

play a great part in the public economy, shall be regulated under 

concession, with an accompanying declaration of public utility. A 

special precaution should be taken in every case; the concessionnaire 

ought to prove the general utility of his enterprise, and the smaller 

mills should not be permitted to interfere with large developments 

and thus diminish their usefulness to the public. The best plan 

would be to permit the small mill to exist by the side of the large 

plant and to have returned to it, in the form of power, the equivalent 

of that which the larger plant takes in the form of water.

a. The French word concession seems by this and subsequent context to be identical 

with what is commonly known in this country as a lease. There may, however, be a 

slight difference between the two. Therefore the former term will be used in subsequent 

pages. M. O. L.
44 PUBLIC UTILITY OF WATEE POWERS.

PRINCIPLES PROPOSED FOR BASIS OF NEW LEGISLATION.

The ideal solution consists in permitting all the interests, private 

as well as public, to develop power, and in considering according to 

their respective merits several applicants who seek to obtain concession of the same power site. Such is the policy upon which the 

following general principles are based:

1. All the various lines of water-power utilization must be facilitated and encouraged simultaneously, because the water powers are 

concentrated at certain points in such enormous quantities that there 

is no risk of their speedy exhaustion; further, because, for technical 

and economic reasons, it is of the greatest advantage to distribute 

the power produced among the greatest possible number of uses.

2. The engineers of the Government, of the provinces, and of the 

counties, as well as those representing private interests, must be free, 

and even encouraged in special cases, to make studies and propose 

methods for making the best use of water power.

3. The power of concession must belong to the State [that is, the 

National Government], which alone is able to combine all available 

information and to settle difficulties arising among opposing interests. 

Such power should be exercised irrespective of all financial influences, 

in the sole effort to derive from the exploitation of public resources 

the greatest possible amount of benefit. When there is no general 

public interest that would be damaged thereby, concessions shall be 

granted, with or without a clause of retrocession, in the following 

order of preference: First, to the province; second, to the county; 

and third, to a company making application therefor.

4. The duration of a concession shall be limited to the shortest possible term, in order that any mistakes or defects in the regulations 

may be corrected and that changes may be made to con-form to 

changes in conditions. Among such possible modifications, the most 

important will undoubtedly be the adoption of electric traction by 

large railway systems.

5. The acknowledgment of special rights of any person or privileges in water powers should be guarded against. Neither the exclusive right, granted provisionally in France to riparian owners or 

to intermediaries to whom such owners have conceded their rights, 

nor the right of prior application, recognized in Italy, subject only 

to the higher interest of the Government, is an acceptable standard. 

The highest duty of the Government in the matter of water power, 

as in the matter of railroads and street railways, is to follow that 

course which will give to the public in general, and especially to the 

neighboring populations, the greatest advantages.

The chief characteristics of such legislation as we believe desirable having been outlined, it now remains for us to study the matter
FOREIGN LEGISLATION RELATIVE TO WATER POWERS. 45

in detail and to formulate the precise language. Before doing so, it 

will be useful to analyze and set forth certain characteristic points in 

Italian and iSwiss legislation.

ITALIAN LEGISLATION.

CLASSIFICATION OF WATEES.

Industrial diversions, like those for agricultural purposes, are 

regulated in Italy by the organic law of August 10, 1884, regulating 

the diversion of public waters.0

First let us consider the designation " public waters." Are all 

the natural watercourses, even the very small ones, covered by this 

law? This appears not to be so, because article 25 provides for a 

" classification " of the " public waters " of the nation.6 Nevertheless, 

it would appear proper that this term should comprehend all large 

watercourses that are susceptible, by reason of the volume of their 

waters or the extent of their courses, of serving public purposes. 

This, of course, includes lakes and watercourses made navigable or 

improved by national subsidies. Such waters are subject to the control of the sovereign, while the other watercourses come under that of 

the prefect. There is disagreement among the lawyers as to the 

classification of " public waters," and also as to the nature and importance of the domain rights of the nation. According to some, the 

public waters are a part of the public domain; and, according to 

others, they are a part of the private domain of the nation. (See 

Pacelli, Francesco, Le acque pubbliche: Report of the "oemmission 

created by decree of August 16, 1898.)

For the diversion of u public waters " a " concession " from the 

Government is required, such concession being granted in virtue of 

the payment of rent (article 1).

DISTINCTION BETWEEN " CONCESSION " AND " AUTHORIZATION."

It is interesting, in connection with article 1, to note a passage 

from the work of M. Pacelli, cited above, which compares the French 

and Italian legislation and treats of the distinction to be made between the " authorization " of the French system and the " concession " of the Italian system:

140. There has been formulated in France, specifically in the matter of public 

waters, an important distinction developed in Italy within recent years in an 

able monograph by Banelletti the distinction between a concession and an

0 A French translation of this law is inserted in the Bulletin de 1'hydraulique agricole, 

pt. 6, p. 126.

0 The attitude of the Italian administration concerning the execution of this list is set 

forth in a circular of the minister of public works of February 6, 1888, in which is acpepted 

the theory that very small watercourses are not a part of the public domain.
46 PUBLIC UTILITY OF WATER POWERS.

authorization. The former recognizes the creative function of the nation; it 

gives to the concessionnaire a new right a right which he can acquire only by 

asking for it. The latter recognizes the activity of the nation as a guardian; it 

consists in removing certain obstacles in the way of private activity; it permits 

the exercise of a right that existed in substance previous to the application.0 

This distinction was made in France for the purpose of reconciling the civil 

code with the administrative legislation relative to the waters. It has been 

explained that the authorization is sufficient for nonnavigable watercourses 

where the riparian owners have a right of usage in virtue of article 644 of the 

code of Napoleon, and that a concession is required for navigable watercourses, 

which are expressly exempted from the provisions of that article. This distinction, accepted almost universally, * * * was applied in Belgium in the 

law of May 7, 1877, relative to nonnavigable watercourses. * * *

141. In Italy the distinction between concessions and authorizations in the 

matter of fluvial domain is accepted by those who endeavor to reconcile article 

543 of the civil code with the law relative to public works; they contend that 

a concession is necessary in the case of rivers and torrential bodies of water, 

and that an authorization is sufficient for the other watercourses of less importance. In my opinion, contending that a complete separation must be maintained between the waters regulated by the civil code and those regulated by 

administrative laws, the distinction is not applicable in Italy to the matter of 

public waters. According to my judgment, the fact of being an owner of the 

banks of a public watercourse, large or small, implies no right of usage, and I 

contend that article 543 of the code applies, merely to small private watercourses. A concession will then always be necessary to vest in an applicant a 

right of usage, in which he previously had no interest other than the possibility 

of procuring it by application.

After this theoretical digression, we will now return to the analysis 

of the law of 1884.

ANALYSIS OF THE LAW OF AUGUST 10, 1884.

The papers of the concession fix the quantity of water to be diverted, the conditions of diversion, withdrawal, use, and restoration 

of the waters, the rental, etc.; they also stipulate the requisite guaranties in favor of agriculture, industry, or public health. They fix 

the period within which the water must be diverted and used, under 

penalty of forfeiture. (Article 4.)

A concession can not. be granted for a period in excess of thirty 

years, but it is renewable in favor of the first concessionnaire for new 

periods of thirty years unless he, in the opinion of the administration, 

has attained the purpose for which the concession was granted to 

him. (Article 5.)

The concessionnaire is at liberty, under certain conditions, to change 

the purpose and equipment of his plant. (Articles 6 and 7.)

0 Following that theory, the system of authorizations or permits should not be applied 

in France to industrial diversions, since the legislature refused expressly to recognize in 

the riparian owners any right to " the falls of water." We have, on the other band, long 

insisted on the inconveniences arising from the creation of a right by means of a simple 

authorization or permission.
FOREIGN LEGISLATION EELATIVE TO WATER POWERS. 47

Formal official instructions relative to concessions are regulated by 

articles 8 and 9. Certain prescriptions relative to security, closing 

of gates in times of floods, etc., are treated in articles 10, 11, and 12.

If, during the period of the concession, the regimen of the watercourse is changed in the public interest, the nation is not held to any 

indemnity in favor of the concessionnaire, who in such event has a 

right merely to a proportionate reduction in or cancellation of rental. 

(Article 13.)

Article 14 fixes the .rental 3 francs (about 55 cents) per horsepower in industrial diversions. Articles 15 to 19 prescribe certain 

exemptions or certain details of collection of taxes. Articles 20 to 24 

establish agreement with other laws.

Article 25 relates to the making up of the " schedules of public 

waters" previously mentioned.

Articles 26 and 27 relate to the making up of a register of " diversions of public waters," compiled from the " declarations " of interested parties.

Article 28 provides that the details of the execution of the law 

shall be determined by a public administrative regulation.

PUBLIC ADMINISTRATIVE REGULATION OF NOVEMBER 26, 1893.

In execution of article 28 of the law of August 10, 1884, the first 

public administrative regulation was promulgated on November 9, 

1885; but it quickly became insufficient and was replaced by a more 

complete and modern regulation November 26, 1893. This new regulation added to the law two new principles which had not previously 

been recognized and which were rendered necessary by the zeal of 

speculation brought about by profitable water-power developments 

(1) the principle of preference in favor of the first applicant for 

concession in cases where concurrent applications technically can not 

coexist (article 8) ; (2) the principle of the higher rights of the 

nation, which may, in the consideration of public interest, either oppose an individual application (article 7) or accord the preference to 

one of the later applications among a number of concurrent applications, in derogation of the principle first established.

CIRCULAR OF JUNE 17, 1898.

The interpretation of these two principles and their application by 

Gen. Afan de Eivera, minister of public works, in his celebrated 

circular of June 17, 1898, in which he charged all prefects, engineers, 

etc., to deny all applications for powers that might be utilized for 

electric traction on the large railroads, aroused and still arouses 

lively discussion in the technical and industrial world of Italy. The 

directors of the Compagnie fermiere du grand reseau de 1'Adriatique
48 PUBLIC UTILITY OP WATER POWERS.

entered into a vigorous controversy with General De Eivera on certain technical questions in the Nuova Antologia of June 15 and 

August 1, 1898. They seemed, however, to share his opinion as to 

the necessity of preventing a monopoly of water powers, in view of 

the adoption of electric traction, and as to the importance of electric 

traction for mountain lines with small traffic.

REVISION OF THE LAW OF AUGUST 10, 1884.

In response to various expressions of dissatisfaction a decree of 

August 16, 1898, named a commission for the purpose of reforming 

the law of 1884. The terms of this decree are as follows:

(a) To establish rules and limitations of concession for diversions 

of public waters, either for electric traction of railways or for other 

industrial and agricultural purposes of no less importance in the 

social economy.

(b) To devise administrative regulations for the prevention of 

speculation and monopolies and changes in the objects of concessions 

granted.

(c) To formulate, in the spirit indicated in &, modifications that 

might desirably be incorporated into the laws and regulations in 

force.

SCOPE OF THE PROPOSED NEW LAW.

The new text proposed by this commission introduced into the 

law many of the regulations of 1893 and, more particularly, the two 

principles already mentioned (pp. 46, 47), which are fully explained 

and commented on. It modifies, moreover, the competency, nature, 

and method of renewal of concessions, the determination of rentals, 

and certain details of administrative procedure, which are of no 

special interest, except in connection with the Italian administrative 

organization, which is slightly different from the French.

Below are given explanatory summaries of each of these points: 

1. Principle of preference in favor of first applicant. This principle, supported by article 6 of the regulation of 1898, is retained in 

almost the same terms in article 5 of the proposed law:

Whenever two or more applications are made, in the prescribed form, for 

all or a part of the same concession, and the several interests represented can 

not all be served in common, concession shall be granted to the application first 

presented.

This rule is subject to derogation when predominating public interests militate in favor of some later application, presented less than a month after the 

expiration of the term named in the decree of publication of the first application.

The reasons brought forward must be submitted to the examination of the 

administration and to committees appointed to give advice on applications for 

concession.
FOREIGN LEGISLATION RELATIVE TO WATER POWERS. 49

2. Principle of according priority to the interests of the nation. 

The application of this principle is regulated by article 3 of the 

proposed law, as follows:

Whenever application is made for concession for a diversion of the first 

class, consideration thereof shall be preceded by an examination by a permanent special commission, to determine whether, irrespective of the application 

in hand, any legitimate public interest or any present or future need of the 

nation interferes with the granting of a concession. This commission is 

appointed at the beginning of each year, from members of the higher board of 

public works, of the high committee on tariffs, of representatives, of the high 

legal counsel of the treasury, and of ministers of public works, of finances, of 

agriculture, of industry, and of commerce, as well as of the war and navy. If 

the decision of said commission is favorable, the examination of the application in the regular manner immediately follows. If the decision is unfavorable, the minister of public works shall, after consultation with the higher 

council and the council of state, render a decree deciding whether the examination of the application shall proceed. By means of such a decree, the minister 

can, if necessary, ultimately prevent all concessions to individuals in a certain 

river basin, section, or lake over which he has control.

If, in the interest of a public service, the nation finds it desirable to utilize, 

or to reserve, in any manner, water powers of one or another class, the competent administration, or a deputy named for that special purpose, shall present 

a preliminary plan containing a technical exposition of the purposes, nature, 

object, and utility of the work to be established or of, the reservation. This 

plan shall be submitted by the minister to the permanent special commission 

aforesaid, and in accordance with its advice and that of the higher .board of 

public works, after consultation with the council of state, he shall decide by 

special decree the appropriation or reservation of the power privileges demanded for the public service. In case of a favorable decree, all individual 

demands that can not technically coexist, along with the project or the reservation of the Government, shall be denied, irrespective of the state of advancement of construction. '

The decrees of the minister of public works are unassailable, the only recourse against them being that provided by articles 12, 14, and 24 of the law 

for the council of state.

3. Changes in jurisdiction. According to articles 2 and 3 of the 

law of 1884, jurisdiction was based on the character of the watercourse. A law was required in the case of a perpetual concession, a 

royal decree for those relating to lakes, rivers, boundary waters, 

navigable streams, and watercourses whose embankments and shores 

are recorded among the hydraulic bodies of the second class, while 

the prefect decided in all other cases. According to' articles 2 and 3 

of the proposed law, on the contrary, the jurisdiction depends on the 

importance of the diversions, which are divided into two classes. The 

first class, for which a royal decree is necessary, corresponds to the 

" large diversions," the limits of which were fixed by article 1 of the 

regulation of 1893, covering specifically all developments of power 

greater than 200 horsepower. The prefect has jurisdiction over all 

applications of the second class, except that where the application 

23321 No. 238 1(
50 PUBLIC UTILITY OF.WATEE POWEES.

concerns a lake, a navigable watercourse, etc., he obtains authority 

from the minister of public works.

4. Changes in character and conditions of renewal of concessions. 

The principle of a thirty-year concession, renewable indefinitely in 

favor of the first concessionnaire, with clauses of forfeiture but 

without clauses of redemption or return to the nation, is retained in 

the proposed law as it was laid down by the Italian law, but with 

certain modifications designed to prevent monopolies or to obviate 

making it irrevocably binding for all future time.

In order to reduce the chances for monopoly and speculation, 

article 1 of the proposed law stipulates:

The concessionnaire of a public water diversion can be authorized by the 

decree of investiture to form either a syndicate or a civil or commercial company for the exploitation of his concession, provided he remains connected with 

it up to the time of the organization of the company and provided that the 

organization is effected within a period of six months from the date at which 

the decree of investiture went into effect. It is forbidden, under penalty of 

forfeiture, to transfer to a third party a concession for the diversion of public 

waters in any other manner before such concession shall have been entirely 

utilized.

The conclusion of the same article contains the following new condition relative to municipal concessions:

Municipalities may reconvey to third parties the exploitation of waters vested 

in them for the benefit of public service, such as electric lighting, railway 

traction, and for domestic or hygienic purposes, provided they follow a simple 

system of reimbursement of expenses of exploitation over and above the interest 

and amortization of capital used, to the total exclusion of all speculation.

With reference to the duration and the renewal of concessions, 

it may be observed that perpetual concessions no longer exist. Article 5, the last paragraph only of which is new, is as follows:

ARTICLE 5. Concessions are granted for a period not exceeding thirty years; 

but at the expiration of that period the concessionnaire has the right to a 

renewal of the concession for a second period of thirty years, with such modifications as must be made in the conditions of the concession by reason of changes 

in the premises or regimen of the stream. The renewal of the concession can 

be refused, if, in the opinion of the administration, the concessionnaire during 

the preceding thirty years, either through usage or abuse, has not fulfilled the 

object of the concession. Renewals after the expiration of the second thirtyyear period are optional with the nation.

There is an additional article, No. 5J, which contains an entirely 

new requirement, providing for the alteration of a power development found defective. This article reads as follows:

In order to better utilize watercourses on which concessions have been 

granted, such concessions may be suspended for certain periods and renewed 

in favor of new concessionnaires, under condition that the first concessionnaire 

receive, without cost or risk, a quantity of power or water equivalent to that 

of his concession, the rentals and other obligations stipulated by the decrees of 

investiture remaining the same for all concessionnaires.
FOREIGN LEGISLATION RELATIVE TO WATER POWERS. 51

Finally, article 4 of the proposed law contains a provision, almost 

identical with a paragraph of article 14 of the regulation of 1893, 

which is very important in the gradual development of large concessions. It is as follows:

Whenever it shall occur that any concessionnaire can not employ immediately 

all of the water or all of the power conceded to him, the conceding authority 

can consent to a progressive development, subject to the uniform payment of 

an equitable rent. The different periods of progressive utilization shall be fixed 

in the decree of concession, as well as the quantity of water or power that may 

be utilized in each period and the corresponding rental. Decrees which do not 

contain such limitations are rendered void and must be renewed.

Decrees of concession shall define, in conformity with the regulations adopted, 

the periods within which the concessionnaire must fulfill the various conditions of his concession, whether flxed or gradual, up to the complete utilization 

of the water to be diverted. If these periods are exceeded without sufficient 

cause, the administration has the privilege of declaring the concession forfeited or of restricting the quantity of water or power actually utilized.

These periods can not be extended, except for the enlargement of capacity 

of the development, without a renewal of the application and the issue of new 

instructions.

5. Changes in assessment of rentals. The proposed new law preserves the rental of 3 francs (about 55 cents) per horsepower, fixed 

by law of 1884; but it introduces, in connection with long-distance 

transmission, a principle of reduction, which is in harmony with the 

views expressed by the congress of electricians at Turin and which 

will, without doubt, be somewhat unacceptable to the populations of 

the valleys in which the powers are located because it will favor longdistance transmission of power, to the detriment of local interests. 

The basis of the reduction is as follows:

For power transmitted by means of electricity to distances greater than 10 

kilometers (about 6 miles) there is granted upon the annual rental of 3 francs 

per horsepower, a reduction calculated by multiplying the square of the distance expressed in kilometers by a fixed coefficient of 0.001. In no case shall 

the rental be reduced to less than one-half of 1 franc per horsepower.

Under this formula the minimum reduction, that is to 0.50 franc, 

will be attained in transmission over 50 kilometers (about 31 miles).

6. Power of expropriation. Examination of the law of 1884 and 

its various provisions has enabled us to review the fundamental principles of Italian legislation as well as to compare it with French legislation. In order to complete this exposition and to set forth all the 

elements involved in an intelligent comparison, some supplementary 

remarks will be required.

Although in Italy the more formal concession takes the place of 

the French permit and water regulations, the numerous formalities 

thereof, which are fixed with such detail by the regulation of 1893, 

apparently do not entail longer delays after the filing of the application than does the French procedure. On the contrary, the Italian
52 PUBLIC UTILITY OP WATER POWEES.

regulation of 1893 permits an official examination more rapid, more 

compliant, and at the same time infinitely more complete, and it not 

only covers considerations of drainage and irrigation, but also advantages and disadvantages of the enterprise. An application is not 

accepted and examined unless it is accompanied by plans and specifications by which classification (provided by a supplement to the 

regulations for large diversions or diversions of the first class, article 

3 of the regulations) may be simplified. The applications, together 

with accompanying explanatory documents, are, after examination by 

the provincial deputies, subjected to individual examination for 

fifteen days by a prefectoral commission which shall fix within the 

same period the time for visiting the power site. These formalities 

accomplished, the administration can act on the report of the civil 

engineers.

If there intervenes no consideration of the higher interests of the 

nation, the decision can be rapid; but, in accordance with the circular 

of Gen. Afan de Rivera, all applications must be first examined 

in their relations to the present or future needs of the services of 

the nation.

We have indicated above, in the citation of article 3 of the proposed 

law, that in accordance with that article the preliminary examination must be vested in a mixed permanent commission, without reference to the advice of the various ministers. This is a procedure 

burdened with complications and delays, which has occasioned many 

complaints and provoked much uncertainty.

One real advantage of the Italian legislation is that, while it protects specifically the interests of third parties by granting them all 

opportunity to be heard and by providing for all needful examinations, it grants to the concessionnaires the right of availing themselves 

of the law of June 25, 1865, concerning expropriation, and even stipulates that the individual inquiry shall serve equally for the declaration of public utility of the enterprise (last paragraphs of article 1 

of the regulation of November 26, 1893). In conclusion, it is remarkable that the number of cases in which it has been necessary to 

have recourse to expropriation has been very small.

SWISS LEGISLATION.

Each of the twenty-five Cantons of Switzerland has its special legislation or simple jurisdiction over the waters within its boundaries, 

and the cantonal authorities, without interference from the Federal 

Government, regulate the use of water powers in their own way and 

in accordance with divers principles. To examine and compare them 

all would be an extremely laborious task. Fortunately, at a recent 

period -and in connection with circumstances that we will explain,
FOKEIGN LEGISLATION RELATIVE TO WATEB POWERS. 53

this work of inquiry, compilation, and comparison has already been 

undertaken and well carried out under the care of the federal administration.

INQUIEY INTO EXPEDIENCY OF WATEE-^OWEE EEFOEMS.

In April, 1891, the Swiss society " Frei Land " issued a petition 

demanding the insertion of the following clause in the Federal Constitution :

All the water powers of Switzerland not yet utilized are the property of the 

Confederation. A federal law shall regulate all that concerns the application 

of this resource and the distribution of the net benefit produced by it.

In order to procure information concerning the value of so radical 

a proposition, the Swiss Federal Council, by circular of September 8, 

1891, began an inquiry in all the Cantons concerning the extent and 

importance of the water powers, the existing laws and procedure with 

reference thereto, and the expediency of the reform proposed by the 

Frei Land Society. It consulted at the same time various technical 

and industrial authorities, and finally directed A. Jegher, an engineer 

of Zurich, to study all the data assembled as a result of such inquiry 

and to formulate therefrom practical deductions.

The conclusions at which the Federal Council arrived and .which it 

embodied in a report of June 4, 1894, approved by the Federal Assembly April 4, 1895, are as follows:

1. The great majority of Cantons which possess and exercise the right of sovereignty over their watercourses and which often derive direct income therefrom are not disposed to renounce that right of sovereignty.

2. In general, the public interest in this matter is safeguarded by the Cantons 

according to the importance in each case.

3. The transfer to the Confederation of the right of sovereignty and of administration over water rights would not afford any advantage to the country 

and would not present any source of new revenue, either to the Confederation 

or to the Cajitons.

4. The possibility of availing itself of the water powers in the future could 

very easily be reserved to the nation by cantonal legislation.

5. In general, the cantonal authorities are better able than the Federal Government to see* to the highest development and utilization of water powers, 

both from an economic point of view and from that of public and industrial 

interests.

6. The importance, sometimes limited, of the object in question and the securing of a rational use of the various falls, which is often difficult, require the cooperation of the cantonal authorities specially qualified to protect the development of the local trades and industries of the Cantons.

The Federal Council and the Federal Assembly, by concurrence in 

their conclusions, were of the opinion that for the above reasons the 

petition of the Frei Land Society should not be approved.
54 PUBLIC UTILITY OF WATER POWERS.

REFORMS RECOMMENDED BY FEDERAL AUTHORITIES.

After the conclusion of the important inquiry, upon the motion of 

the Swiss Frei Land Society the Federal authorities, while deciding 

to maintain the prerogatives of the Cantons, nevertheless recognized 

and set forth the need of establishing a certain unity in the laws of 

the Cantons. The need was expressed for a certain coordination in 

the matter of regulations still existing in favor of navigation, together with those defining the right of expropriation and prescribing 

the procedure to be followed. It was recognized that there should 

be uniformity in the regulations governing the diversion of waters.

It was decided to recommend to the Cantons that they incorporate 

into their laws regulating the control of waters the following principles:

1. The cancellation of prescriptions relative to navigation, in so far as they 

interfere with the development of water-power plants, unless said prescriptions 

are justified by the actual demands of transportation.

2. The adoption of the principle that all progress in the utilization of water 

power shall be considered as of public utility and that in consequence all installations for power purposes can demand the application in their favor of the 

laws relating to expropriation.

3. The formation of companies for the economic improvement of watercourses 

utilized by many manufacturers, with compulsory participation of all interests.

4. The right of the cantonal authorities to investigate the industrial value of 

proposed enterprises and to base their decisions relative to application for power 

sites on the results thereof; also, their right to reserve to their own use or that 

of an interested community any power site; in case of such reservation, the 

period which it shall cover and the form of notice that shall be given by the 

Canton or community of which it is in favor.

5. The reservation that, in case of damages sustained by the owners of waterpower plants by reason of improvements made in watercourses in the public 

interest, said owners shall not be entitled to indemnity.

6. The limitation of the term of the concession to a fixed number of years, 

with clauses of forfeiture in cases of nonutilization, or of redemption by the 

Canton.

7. The establishment of a cantonal register of the water regulations, following 

uniform standards for the entire Confederation.

With reference to intercantonal relations, the council of state was 

of the opinion that the Confederation should have the right of 

intervening in all cases where the operation of a water power involved two or more Cantons, upon application from one of the Cantons or from the applicant for concession. Intercantonal relations 

must be regulated by federal law. Federal law or regulations must 

also apply to questions of public security as affected by the constructions and electric conduits of high tension.

Finally, the report of June 4, 1894, is concluded with a proposal 

relative to the establishment of a complete and exact statistical record 

of water powers.
FOREIGN LEGISLATION EELATIVE TO WATER POWERS. 55

It will be seen that in Switzerland respect for the prerogatives of 

the Cantons and communes has not hindered the nation from en-, 

deavoring to exercise its beneficial influence in all legitimate ways.

DIFFICULTIES INVOLVED IN ELECTRIC TRACTION OF RAILROADS.

The federal authorities have acted only by giving advice. Will 

they never feel the necessity for more effective intervention? A very 

serious difficulty will, without doubt, spring up. The Swiss Confederation has redeemed all the railroads in general public use, and 

will take over the direct operation thereof within two years. How 

will Switzerland solve the problem that has so passionately agitated 

Italy, and reserve to itself the water powers necessary to the electric 

traction of its large railroads? There is nothing to indicate the 

manner in which the problem is to be approached and solved, whether 

by friendly agreement between the Confederation and the Cantons 

or by the passage of federal laws. It is clear that, before committing 

itself, the Federal Government is endeavoring to procure all necessary information. The important statistical work of the Swiss hydrometric service will probably have as its principal purpose the furnishing of precise data on this subject. The Federal Assembly, at 

its session of December, 1898, took the first step. It invited the 

Federal Council to present a report on the question of whether the 

nation should not secure for itself the powers furnished by watercourses of constant flow, favorably situated for use in the development of the railroads of the nation.

In what way has each of the Swiss Cantons, since the inquiry of 

1891, modified its standards and laws, either to accommodate them 

to the new demands of hydro-electric industries or in consideration 

of the advice of federal authorities ? We are not yet completely informed in the matter, our investigations so far having covered only 

a small number of Cantons. It appears that there is a very marked 

tendency to imitate the example of Geneva, which is very encouraging. Everywhere the Cantons and communes are studying the matter 

of developing and exploiting to their advantage the vast enterprises 

of power distribution. We will cite the Canton of Vaud, which is 

trying to bring to Lausanne power from the upper Rhone; that of 

Fribourg, which has decided to create a distribution system to be 

served by the powers of Montbovon and Hauterive; that of Zurich, 

which, after having settled, through the federal tribunal, its difficulty 

with Schaffhausen relative to the utilization of the Rhine, proposed 

to establish on that river four plants of 25,000 horsepower, from 

which it will distribute power within all the centers of commerce 

and industry,
56 PUBLIC UTILITY OF WATEK POWEES.

In this connection it may be said that, by reason of their administrative precedents, the Swiss people have been accustomed for a long 

time to the idea of their Cantons and communes embarking in industrial enterprises, as is indicated by the form adopted for their 

encouragement of public-utility enterprises. The Canton of Berne, 

for example, has aided its railroads by taking their stock, -and the 

grand council announced to the people of Berne in a message of 

January 28, 1897, that the nation had recovered, without any loss, the 

fifty millions that it had invested in the construction of the first railroad system, and that it proposed to cooperate in like manner in the 

establishment of the second system by taking stock to the extent of 40 

per cent and for some lines even 60 per cent of the capital required 

in first construction. From the results first obtained, it is hoped that 

the hydro-electric enterprises for distribution of power may prove 

even more advantageous to cantonal and municipal financial investments than have the railroad enterprises.

WATEB-POWEB CONCESSIONS IN CANTON OF BEBNE.

In the Canton of Berne a large number of concessions for waterpower developments have been granted to groups of communities, as 

for example, the company at Hagneck, composed of the towns of 

Niclan, Tauffelen-Geriafingen, Hagneck, Bienne, Cerlier, and Neuveville; and that at Wangen, composed of the towns of Wangen, Wiedlisbach, Walliswil-Wangen, Walliswil-Bipp, Berken, Bannwil, and 

Graben. Many more might be cited. But, in the absence of municipal activity, private initiative has also taken part in the development of water powers. The following quotation indicates the attitude 

of the executive council in the matter:

We consider that it is the communes on which the law imposes the obligation 

of establishment and maintaining dikes and dams, and who for years and for 

centuries have bad to bear the expense of maintaining the banks and protection 

works, without taking into consideration the great damage to which they are 

often subject on account of inundations, who should profit by the wealth that 

lies in the utilization of water powers. They have the first right to obtain concessions, and the undersigned [M. Dinkelmann, director of public works, October, 1891] misses no opportunity to call the attention of the representatives of the 

community authorities to this fact. All demands for concessions must be published and the specifications filed in the proper communes. The authorities of 

the commune can oppose them and can intervene as applicant and thus secure 

by cheap water power the means of sustaining and improving their industries. 

It is thus our purpose to have the country itself profit ~by the water powers 

located.

If, for any reason, the commune can not or does not wish to take the matter 

into its own hands, it seems to us that it will be the duty of the nation to see 

that the country is not completely deprived of its water powers and to arrange 

that the commune can have, at net cost, the use of at least enough water power for 

public-utility works, electric lighting, distribution of water, etc. We recommend 

the regular insertion of such a condition in concessions of this class.
FOBEIGN LEGISLATION KELATIVE TO WATEE POWEES. 57

This definition of position is an extract from a voluminous report, 

ratified by the executive council and by the grand council of the 

Canton of Berne, having for its object the examination of concessions for water powers, following the federal inquiry brought about 

by the petition of the Frei Land Society.

The report demonstrates first and foremost that the right conferred by the law of Berne " in the matter of the utilization of watercourses presents many deficiencies and is very defective," and that until 

a new law is promulgated it will be necessary to seek improvement 

in the limits of existing legislation. Finally, it proposes a formula 

for concessions which seems to have the proper precautions and 

clearness. This formula will be followed until the situation is a 

little clearer and until there shall be formulated, with the cooperation 

of jurists and technical experts, a comprehensive law.

The formula in question provides certain rules in the matter of 

filing of application, examination and approval of projects, assignments, and modifications, concerning which no comment need be made. 

It also includes, however, two articles which it will be well to cite 

in full:

AST. 13. If future laws shall confer upon the nation a monopoly of the utilization of water powers or of their transmission by electricity, compressed air, etc., 

or if the nation or the communes shall find need, in connection with their public 

services, for water powers that have been conceded, any existing authorization 

may be withdrawn without indemnity in case the articles of concession do not 

formally guarantee indemnity; likewise, except in such case as.above mentioned, the concessionnaire has no right to indemnity when changes made in 

watercourses in the public interest no longer permit him to use the water for 

his power plant.

ART. 14. If future- laws shall limit the term of concessions of this class or 

shall exact specific rentals for the utilization of water powers, such new requirements shall also be declared applicable to concessions now existing.

With these two clauses inserted in all articles of concession, the 

cantonal authorities of Berne may look forward with tranquility 

to a revision of existing laws. Upon reflection, it will be seen that 

these clauses are not so drastic as they would at first appear. The 

laws that shall be promulgated, even the taxes that shall be imposed 

(the report of M. Dinkelmann refers to taxes), could not be too severe 

in effect so long as they permit the development of powers not 

theretofore utilized. In retrospectively applying these laws and taxes 

to enterprises already developed, one may be certain that such enterprises will not be crushed, for, in the first place, they will have passed 

through the first years of development, and, in the second place, 

the waterfalls first developed are naturally the most economical. 

Concessionnaires who accept such regulations in advance of their 

promulgation are not, in reality, imprudent. They will even have 

certain advantages over their future competitors, because generally
58 PUBLIC UTILITY OF WATEE POWERS.

they will be in better position to bear the obligations imposed by 

the communes.

The formula drawn up and approved in 1891 has been applied in 

the Canton of Berne to numerous commune or private concessions. 

We will cite especially the concession of power on the Kander at 

Spiez (Thun Lake). That concession is of 2,500 horsepower; the 

head is 64 meters (210 feet); the flow about 4 cubic meters (142 

cubic feet) ; the pipes can carry a maximum flow of 8 cubic meters 

(284 cubic feet). The power will be developed by the Motor Company of Baden and will be used especially on the railroad now 

under construction from Thun to Bugclorf. The concession act, approved May 6, 1894, includes articles 13 and 14 quoted and discussed above. It contains in addition clauses of forfeiture in case 

of nonexecution of the projects or of nonutilization of the water, 

and a reservation in favor of the towns of Wimmis and Spiez of a 

right to the use of 200 horsepower and 300 horsepower, respectively, 

at the turbine shaft, at charges equivalent to net cost. This right 

fails if advantage is not taken of it within a period of five years.

FLEXIBILITY OF CANTONAL LAWS.

We can not review with the same detail all modifications in regulations adopted by the other Cantons following the inquiry of 1891, 

although it would be a very interesting study on account of the great 

variety in the procedures adopted. The most striking point is the 

eagerness of the cantonal authorities, as soon as the necessity was 

made apparent to them and without waiting for the laborious revision of general laws, to adopt special laws or simply regulative 

measures for safeguarding in an effective way the public interests 

involved. Objections in principle or even obstacles presented by 

antiquated laws do not carry much weight in the face of the accomplishment of a practical purpose.

The flexibility of Swiss law is truly astounding. A few months 

sometimes suffices to procure a special law necessary to a large 

enterprise of an exceptional type. A system which permits such 

rapid organization merits admiration. We will cite the Water Power 

Company of Avancon, in the Canton of Vaud, which was created, 

organized, and directed by Professor Palaz, of Lausanne, an eminent 

specialist on the subject. In March, 1897, Mr. Palaz called a meeting 

of capitalists for the purpose of explaining to them the object of 

the enterprise. It involved the development of 1,300 to 3,000 horsepower over a 544-foot fall, to be used principally for electric traction 

on a system of railroads between Bex, Gryon, and Villars, a system 

built and operated by the company itself, and secondarily for the
FOREIGN LEGISLATION RELATIVE TO WATER POWERS. 59

distribution of power to Bex and vicinity. In April, 1897, he had 

secured the necessary capital, $2,362,000 (1,270,000,000 francs.) The 

work was commenced in May, 1897; the distribution of power began 

in January, 1898; the first section of railroad was opened a few 

months later. Moreover, it should be noted that expropriations were 

involved. How enviable are administrative procedures that, in the 

face of incomplete and contradictory general legislation, permit such 

results.

VARIATION IN LEGISLATIVE TENDENCIES OF THE CANTONS.

A general comparison of the Swiss Cantons with reference to 

legislation in the matter of water power would be very interesting. 

Some of them wish to nationalize or municipalize their water powers, 

while others wish to reserve them to private initiative. It would 

be very instructive, when the essential elements of such a comparison 

are available, to ascertain the real causes for the opposing tendencies, 

which depend, without doubt, on economic conditions and not on 

artificial or superficial currents of opinion. It would very probably 

be found that among the partisans of nationalization were the richest 

Cantons, the most populous ones, the greatest industrial centers, those 

where the most important field for utilization of water power lies 

in already existing enterprises. The development of power under 

such conditions presents little industrial risk. On the contrary, the 

poor Cantons, where industry is little developed and where water 

powers do not find such ready application, without doubt recognize 

the necessity for encouraging private initiative, which alone can 

create and encourage the locating of the necessary industries under 

the incentive of great promise of benefits. In this category belong 

most of the Departments and communes of the French Alps, which 

can not even hope to follow the example of the rich Swiss Cantons 

in the direct development of their water powers. But this is not 

sufficient reason to prevent their assuming an important part in the 

work of controlling their watercourses by means of retrocessions to 

industries.

SUPPLEMENTARY NOTE. 

By M. O. LEIGHTON.

Since the foregoing statements were written by M. Tavernier, 

his predictions relative to the necessity for federal intervention in 

Switzerland have been justified. The congress has completely reversed the action taken in 1894 in response to the petition of the Frei 

Land Society, and this reversal was approved by an overwhelming 

vote of the people. The following amendment was adopted on
60 PUBLIC UTILITY OF WATER POWERS.

October 25, 1908, by a popular vote of 292,997, against 52,180 in 

opposition:

ARTICLE 24b. The Federal Congress shall have supervision over the development of water powers.

The Federal Congress shall make provision for the disposition of water-right 

concessions, shall prescribe the terms thereof, and shall regulate the transmission and distribution of electrical energy so far as may be necessary to 

protect. public interests and to provide for the proper development of such 

resources.

All water rights to which the terms of the federal law do not extend shall 

be under the jurisdiction of the Cantons, which shall dispose of the concessions, 

regulate the same, and impose taxes and fees for their use, but such regulations, 

taxes, and fees shall not be so severe as to prevent or inhibit the development 

of water powers.

The National Government shall regulate and dispose of concessions for powers 

located on intercantoual and national boundary streams, and shall determine 

the taxes and fees to be imposed thereon, after hearings have been granted to 

the Cantons interested, but such taxes and fees shall be collected by the Cantons.

No power developed on a stream located within the Union shall be transmitted to a foreign country without the consent of the Federal Council.

The provisions of the federal law shall apply to water-right concessions 

already existing, except in cases specifically exempted therefrom by law.

PROPOSED LAW FOR THE REGULATION OF PUBLIC 

WATER-POWER PLANTS.«

GENERAL DISCUSSION.

In order to understand the difficulties presented in the utilization* 

of water power [in France] under existing law, it is necessary to 

distinguish between navigable and nonnavigable watercourses.

On navigable watercourses that are a part of the public domain 

the owners of the banks have no rights whatever. The nation can 

grant permits where it believes wise, without respect to any right of 

usage. The legislation therefore places no obstacle in the way of 

development of large water powers on these streams, for the general 

good. The principal difficulty is that these permits, like all others 

granted over the public domain, are precarious and can be revoked 

without indemnity. Consequently it is difficult to induce capitalists 

to engage in so costly an enterprise.

On nonnavigable watercourses the situation is entirely different. 

The water is not domain; it is res nullius, and the riparian owners, 

who are also owners of the stream bed, have a right of usage in the 

water. They are permitted to utilize the fall provided they do not 

infringe upon the rights of other riparian owners, and are restricted 

only by the administrative permit which covers police control. The

" Presented in the name of M. fimile Loubet, President of the French Republic, by 

M. Pierre Baudin, minister of public works, and M. Jean Dupuy, minister of agriculture, 

to the commission on distribution of power. (Extract from Bulletin of the Society for 

legislative studies, on the utilization of water powers.)
FOREIGN LEGISLATION RELATIVE TO WATER POWERS. 61

riparian owner can dispose of his water right, in which the noiiriparian owner has no interest. Nevertheless, the rights of the 

riparian owner apply to the limits of his own property only, for he 

has to respect the rights of his neighbors across and up stream. If 

in any development he has used the falls in the stream above the 

border of his own holdings, and the upstream owners subsequently 

wish to make use of their rights, they may obtain from the courts a 

ruling that will deprive him of a part of the power that he has been 

using. Therefore it is necessary for those who wish to develop 

large power plants to enter into an agreement with all the other 

riparian owners who possess concurrent rights. Even the validity 

of such agreements is contested, it being conceded only with reluctance that rights in the water can be disposed of without reference 

to rights in the land.

This condition explains the appearance of water-power site speculators, called " pisteurs " or " barreurs de chutes," who by purchasing a narrow strip of shore line acquire riparian rights sufficient to 

prevent the establishment of power plants, in order to aid them .in 

an effort to sell such rights at an extortionate price. The water 

powers of such streams are therefore either in the hands of speculators or of small owners who can not possibly utilize them in the 

manner required by the great industries. To the great detriment of 

public interests, the powers are thereby rendered unavailable.

There is, however, one case in which it is possible under present 

legislation to utilize the powers of nonnavigable streams despite all 

riparian rights that is, in the case of public works declared of public utility in the interest of the public service. If, for example, a 

water supply for a town is to be established, or electric power for 

lighting a city or for use of a street railway is to be installed, a 

decree will be issued declaring those works of public utility and conferring on the concessionaire the right to the necessary power, under 

the limitations and conditions of the decree, independently of all 

rights emanating from the civil code.

The effect of such a decree is to combine the rights of the individual 

users into a common right to indemnity for any damages caused by 

the execution of public works, there existing, however, no right to 

indemnity except in case of damage actually sustained. A riparian 

owner who has previously made no use of his riparian rights can not 

set up a claim for indemnity. Moreover, there is vested in the concessionnaire, as a result of the declaration of public utility, the right 

of securing, through the process of expropriation, the lands necessary 

to the execution of the works. This procedure thus permits the 

utilization of a part of the watercourse in a satisfactory manner 

whenever the public service is properly concerned, which alone can 

be the purpose of a declaration of public utility. This principle can
62 PUBLIC UTILITY OP WATEE POWERS.

not be applied in the interest of one or of many great industries, nor 

in the interest of public service and industry combined.

To remedy the defects of the present legislation, two means come 

naturally to mind, both involving the right of concession of the waterpower sites of watercourses. The first means is that adopted by the 

Parliamentary commission charged with the examination of the law 

proposed by M. Jouart, reported by M. Guillain. It consists of creating a new right by declaring the power plants as of public utility in 

all cases where the interest of public service can be claimed, under 

conditions actually demonstrated in evidence. It involves practically 

a concession of ownership in water power destined for private industries, under the obligation to reserve water or power for eventual 

public service. This would be, in effect, a right of perpetual proprietorship in the water power and the works necessary to the establishment and operation thereof, constituting a u conceded power 

plant," rather than a " power plant of public utility." Such a concession would be very similar to concessions for mines. To follow 

the same line of thought, this new private right might be made not 

a right of perpetual proprietorship but a right of temporary usage, 

which after a certain period would revert to the nation.

The second means consists of adopting as a basis for the reform 

the concession in regard to public service just as it exists to-day; that 

is, the concession for public works. It would be sufficient to extend 

this to all cases by applying it to private privileges now existing or 

to be created in the future. This is the system adopted in the proposed law; it is justified by the following considerations:

1. It is preferable not to attack any of the general rules of the civil 

code or the special principles of legislation regarding waters. The 

establishment of a new water right might involve serious difficulties, 

theoretical as well as practical. It will be better to adhere to a legal 

principle already established, defined, and practiced, viz, the concession for public works with amendments necessary to cover the abovementioned needs.

2. It will be futile to have two different types of concession, one for 

industrial purposes and the other for public works. Standards for 

such will be difficult to establish, for in all cases there will be a possible or prospective public interest as well as a private interest to be 

served at the same time. For the highest utilization of the power 

this must always be so. Sometimes the public power plant must turn 

over its surplus to the private industry; sometimes the industrialplant must help out the public service. On the other hand, the 

admission that a proposed enterprise is of sufficient general utility 

to merit the use of the declaration of public utility, regardless of the 

rights of others, places an immediate obligation on the nation to 

reserve unto itself the right to impose on the concessionaire the 

obligation to develop a large water power, destined ultimately for
FOREIGN LEGISLATION EELATIVE TO WATER POWERS. 63

public service, whenever needed. Is it therefore not right to hold 

that the power plant created under such conditions has the character 

of a public power plant, permitting the application to it of the system 

of concessions for public works ?

3. This conception has the advantage of taking into consideration 

the duration of the concession, for it must of necessity, like all other 

concessions for public works, be limited. A perpetual concession of 

ownership would present grave difficulties in a case where the development was still in the trial stage, where it would be hazardous to make 

definite plans for the future, and where the value of the water power 

might, under certain economic conditions, be increased in proportions 

impossible to foresee.

4. This plan permits the application of principles that have already 

the sanction of administrative practice and of the law.

The proposed law, whose general principles will now be set forth, 

has been prepared in pursuance of these ideas, advantage Shaving 

been taken of all the provisions of the project of the parliamentary 

commission that can be adapted to the system of concession.

DISTINCTION BETWEEN PRIVATE AND PUBLIC PLANTS.

Private power plants are those which will continue to be established 

under the system of the granting of a simple permit in accordance 

with the civil code and with present water laws and regulations.

Public power plants are those which are established under the authority of the new law; that is, by means of concession in virtue of an 

act declaring them of public utility. Such a declaration shall be made 

by a decree rendered in accordance with the decision of the state council, save in exceptional cases, for which a special law is necessary.

Power plants on ordinary streams, with a gross capacity of 100 

horsepower or more, must always be established as public plants. 

In such cases there is always a possibility of the exploitation of a 

large power, which overweighs the ordinary considerations in connection with a private plant under present conditions and which justifies 

the intervention of the Government, so that there may be assured a 

reservation of power sufficient for the future needs of public service. 

It is intended that this shall not affect private powers which exist at 

the time of the creation of the law, except those plants whose capacity 

the owners propose to increase.

UNIFORMITY IN REGULATIONS FOR NAVIGABLE AND NONNAVIGABLE STREAMS.

Legislation with reference to public power plants shall apply to 

navigable as well as to nonnavigable watercourses. The result of 

such a provision will be to avoid the uncertainty that has existed with 

reference to public power plants on navigable watercourses. This
64 PUBLIC UTILITY OF WATER POWERS.

provision is absolutely necessary to encourage the establishment of 

large industries, which can not with financial safety risk possible 

arbitrary action of the administration, which is free at any time, 

under present conditions, to revoke the permit without indemnity or 

to undertake in the interests of navigation works that might bring 

disaster to the investment. No inconvenience will result from putting an end to the arbitrary control, which is much more damaging 

to the highest development of natural resources than it is profitable 

to the interests of the public works. Public water-power plants 

should have the same guaranties over all watercourses as those established under title prior to the year 1556 or before the national sales 

under the Revolution. It has been recognized in various instances 

that the public domain does not prevent the nation from conferring on 

concessionnaires, by means of the declaration of public utility, certain 

rights the withdrawal or diminution of which gives rise to indemnity. This principle applies to concessions for street railways 

over public roads. What it is possible to do on public-land domain it 

is possible to do on public-water domain.

CHARACTER OF CONCESSION.

1. The concession is granted by the nation in the interest of industry 

and of the public service. It can be granted either in anticipation 

of an immediate public service, with the privilege of recovery either 

at that time or in the near future; or for the use of one or more 

private establishments, with reservation of quantities of water and 

power sufficient to supply the public service ultimately to be created.

2. The concession covers water power and works, lands, and structures appurtenant to the operation thereof, as well as canals designed 

for purposes of drainage or irrigation, which may be imposed upon 

the concessions, but does not extend to the plants or equipment which 

are erected for the industrial utilization of the power created and 

which are located at a distance from the site. The separation is complete between the public water-power plant and the. transmission 

system for private or public utilization.

3. The concessionnaire may dispose, as he sees fit, of water or of 

power not immediately appropriated to or reserved for future public 

service. On the other hand, he is bound to furnish to present or 

future public service water and power under conditions and at rates 

fixed by the conditions of the concession. In order to avoid loss of 

benefit from water and power not now utilized but merely reserved 

for future public service, the law provides that it may be temporarily 

appropriated to private industries by specific contract. The conditions of the concession prescribe the circumstances under which 

such contracts can be made and the period of notice which shall be
FOREIGN LEGISLATION RELATIVE TO WATER POWERS. 65

given when it ,becomes necessary to furnish such power for the 

public service. It might, for example, be advisable to let contracts 

for a portion of the power for a long period and for other portions 

for shorter periods, according to the probable proportions of the 

future needs for the public service.

4. The construction work shall be subject to the approval of the 

minister only in case public safety or the regulations concerning 

control of waters are affected, or when the works to be constructed 

shall involve expropriation. In all other cases administrative authorization is unnecessary.

5. The public power plant, with all its stationary appurtenances, 

is classed as public domain; its works are considered like those of the 

public highway, for purposes of protection against infractions of 

contract.

6. The administration shall have the right to prescribe measures 

necessary in the interest of public health and safety, as, for instance, 

the prevention of inundations, and the concessionnaire shall have no 

right of indemnity. In all other cases, on the contrary, if the measures prescribed or works constructed (as, for example, works constructed in the interest of navigation 011 navigable streams) result in 

any difficulty whatsoever in the operation of the plant the concessionnaire shall have a right to indemnity.

METHOD OF GRANTING CONCESSIONS.

The concession shall be granted after the filing of an application 

setting forth the advantages which the applicants believe will accrue 

to the public interest, and after examination by a " mixed commission 

on water-power plants," created for that purpose. It imposes upon 

the concessionnaire obligations of two kinds first, the duty of furnishing a certain quantity of water or power for the public services, 

either free of charge or at an equitable rate; second, financial cooperation, when it shall be necessary, in other public-utility enterprises 

of the section.

A question may arise as to whether it would be good policy to exact 

payment of a rental. There is no doubt that the imposition of such 

a charge would be justifiable. The principle has been approved in 

connection with present legislation concerning plants on navigable 

streams. It is desirable, however, to avoid giving to the proposed 

law an appearance of being a measure for revenue. It is better to 

obtain from the applicants the equivalent of rental by making provisions that will be in the interest of the public service. This may 

be accomplished either through a reduction in the rates for furnishing power (it sometimes being possible even to obtain this gratui*- 

tously) or through an agreement on the part of the concessionnaire to

23321 No. 238 10 5
66 PUBLIC UTILITY OF WATER POWERS.

perform certain services in part or in entirety, such as the construction of important public works, the benefit from which will accrue to 

the region in which the concession is located. Such services may 

include the construction of a roadway, a railroad, a street railway, 

the laying of conduits for lighting, distribution of power for smaller 

industries, etc. This would be an extension of a principle recently 

introduced into concessions for mines, which makes for more profitable cooperation between the industrial interests and those of the 

general public, a point which should not be overlooked.

RELATIONS WITH THIRD PARTIES DAMAGES EASEMENTSEXPROPRIATIONS.

1. Usages. The works are public works, and damages resulting 

therefrom may give rise to indemnity, under ordinary conditions, 

in accordance with regulations now in force under the law of December 29, 1892, and with the distinctions recognized under the decision 

of the council of state. The declaration of public utility renders 

void the rights of usage which constitute an obstacle to the right conferred upon the concessionnaire, and converts them into a right for 

indemnity for damages caused by the execution of the works. Only 

those who sustain actual damage can claim indemnity, such as those 

who are deprived, of water or of power of which they have made 

beneficial use. The concessionnaire can always free himself of this 

obligation of indemnity by restoring, in kind, to the users the water 

or power so confiscated. This is a method of settling damages which 

often has the double advantage of being more economical for the 

concessionnaires and of avoiding the wiping out of power plants or 

irrigation systems previously existing.

2. Landowners. Damages to landowners may result either from 

the occupation of their lands in connection with the establishment of 

works, or from flowage of lands occasioned by dam construction. The. 

proposed law distinguishes between a damage which would put the 

landowner to little trouble and would entitle him merely to indemnity 

for granting a right of way and a damage involving expropriation. 

Rights of way would be granted for the establishment of canals, 

underground conduits, and power transmission. The conditions controlling the granting thereof are determined by civil tribunals, 

charged with the duty of reconciling the interests of the enterprise 

with other proprietary interests. The question was considered of 

defining in the law the various conditions under which rights of way 

could be procured, but it appeared that it would be difficult to establish sufficiently clear and fine distinctions to cover all contingencies, 

and consequently it was believed preferable to leave the matter to the 

control of the civil tribunals. The occupation of the river bed and
FOREIGN LEGISLATION RELATIVE TO WATER POWERS. 67

the submergence of shore lands not susceptible of cultivation can be 

accomplished by paying for the right of way, without the necessity 

of resorting to the expropriation procedure.

In all other cases that is, in all cases where occupation by acquiring a right of way is not practicable the concessionnaire must acquire 

title to the necessary lands upon which his works will be built or 

which will be submerged by the raising of the water level. The 

method of procedure in expropriation is governed by article 16 of the 

law of May 21, 1836.

TERMINATION OF CONCESSION.

A concession shall be terminated, first, by regular expiration of the 

term thereof; second, by redemption; third, by forfeiture. The common rules in the matter of concessions for public works must necessarily be applied here. It has, however, seemed advantageous to 

formulate certain special provisions in order to assure a continuation 

of the service after the termination of the concession and to avoid 

the uncertainty and interruptions in the enterprise to which changes 

in ownership might give rise. When a concession is terminated, the 

new concessionnaire (and in the case of redemption, the nation) is 

bound to guarantee for a period of five years the fulfillment of contracts held by the old concessionnaire for the furnishing of water 

and power, subject to the limitations imposed by the controlling conditions of market at that time, and to assure the granting of preference to such public-service demands as may exist.

It is also important, in case of the regular expiration of the period 

of concession, to provide that the new concession shall be granted 

some time in advance of such expiration, so that there may be no 

period of uncertainty just previous thereto. It seems reasonable, as 

well, to give to the holding concessionnaire the preference in the matter of new application, if he offers terms as advantageous to the 

nation as those of any of the new applicants. A change in concessionnaire is not always desirable and has no value other than that 

of securing readjustment of terms in harmony with scientific progress and industrial development. If such advantageous conditions 

are secured it is usually better for all interests to have no change in 

the concessionnaire. To this end the proposed law imposes on the 

administration the duty of arranging the new concession within the 

five years preceding the expiration of the old one. The method of 

procedure is identical with that followed in the first concession, except that the right of preference is accorded to the holding concessionnaire. In order to avoid delays which will prolong the examination up to the final days of the period of the first concession and to 

avoid falling into the uncertainty that would result therefrom, it is
68 PUBLIC UTILITY OF WATER POWEES.

decreed that, if two years previous to the expiration no new concession is being instituted, the concessionnaire can demand an extension 

of his concession for a period of ten years. This ten-year period of 

extension seems necessary, and at the same time sufficient for the 

amortization of the expenses of repair and improvement that the 

concessionnaire would feel called upon to make when entering on a 

new period of operation, and to encourage him in so doing.

These provisions as a whole seem to overcome the greater part of 

the objections made by partisans of the system of perpetual ownership to the system of temporary concession. Such objections are generally based on the difficulty of assuring a good development during 

the period of change.

With reference to redemption, the proposed law provides that indemnity shall be fixed by arbitration, under the principles laid down 

by article 11 of the law of June 11,1880, concerning railroads of local 

interest. In order to simplify the procedure, in case of forfeiture 

or redemption, it is proposed to give cognizance to the state council 

direct, without requiring review by the council of the prefecture; this 

provision is in accordance with the law of June 11, 1880, above cited.

The proposed law, which contains four sections and eighteen articles, is submitted below.

THE PROPOSED LAW.

SECTION I.

ARTICLE 1. Hydraulic powers, from whatever waters they may be 

derived, shall be classified as private powers and public powers. 

Private powers shall continue to be governed by the laws and regulations now in force. Public powers shall be regulated by the following provisions:

ARTICLE 2. Public powers are hereby conceded to the nation in 

the interest of industry and public service. When the only use 

immediately foreseen is the serving of one or more industrial establishments, the reservations necessary in the interest of eventual public 

service shall be embodied in the conditions of the articles of concession.

ARTICLE 3. Public powers are declared of public utility and conceded by decree of the state council, based on the report of the 

minister of agriculture in the case of nonnavigable waters or of the 

minister of public works in the case of navigable waters, and after 

inquiry and advice of the general council of the Departments, of the 

municipal councils of the towns interested, and of the commission 

created under article 16 hereof. No declaration of public utility 

shall be made in the absence of legislation authorizing the same, in 

the case of proposed works involving the diversion of water from
FOREIGN LEGISLATION RELATIVE TO WATER POWERS. 69

its natural channel for a distance greater than 12 miles (20 kilometers) measured along the river bed. Such legislation shall, previous 

to passage, have been submitted to the state council. The modifications ultimately applying to the use and distribution of the water 

power and diverted water are authorized by decree of the state 

council.

ARTICLE 4. The conditions of the articles of concession shall fix 

1. The period of concession.

2. The works, grounds, buildings, and equipment of all kinds that 

constitute the stationary appurtenances of the concession. Such appurtenances comprise installations for the improvement of the regimen of the stream, the diversion and retention of water, the conversion of hydraulic power into mechanical or electric energy, 

the transmission of water and power, and finally the maintenance 

and operation of the various installations. They do not comprise 

works designed for the utilization of the power produced or water 

furnished, which might exist irrespective of the concession.

3. The amount of water diverted by the plant, and especially the 

minimum volume of water to be retained in the natural channel, or 

to be reserved in the interest of municipal water supply or of irrigation.

4. General conditions concerning the location of reservoirs and 

dams, the establishment of canals for diversion, discharge, waste, 

etc., and the character of the works which the concessionnaire is 

bound to establish without regard to the obligations to the public 

which he thereby incurs.

5. Charges imposed on the concessionnaire, whether in the form of 

water or power to be furnished to the nation, to the Departments, to 

towns, or to properly authorized companies, or in the form of financial cooperation in public-utility enterprises in the region.

ARTICLE 5. The declaration of public utility has the effect of 

classifying as a part of the public domain water-power plants and 

their stationary appurtenances defined in the articles of concession 

in conformity with paragraph 2 of article 4 hereof. Such works are 

considered as like those under the jurisdiction of the commission 

of public ways, especially, in connection with the suppression of 

violations. Such violations are liable to a penalty ranging from $3 

to about $55 (16 to 300 francs).

ARTICLE 6. Plans for construction of works which affect public 

safety, or the control of waters, and the general provisions of those 

involving expropriation are subject to approval by the competent 

minister. Construction of other works is not subject to administrative regulation.

ARTICLE 7. The concessionnaire maintains the right to dispose 

freely of water and power not appropriated to or reserved for public
70 PUBLIC UTILITY OF WATER POWERS.

service. Power so reserved and not demanded for immediate use 

may, pending such demand, be sold to private parties, under specific 

agreement, the terms of which shall be fixed in the articles of concession.

ARTICLE 8. Except in cases involving public health and safety, 

the concessionnaire of a public power, even when the power is situated on a navigable stream, has a right to indemnity for injury due 

to works constructed or measures prescribed by the administration.

SECTION II.

Rights and obligations of the concessionnaire with respect to the

public.

ARTICLE 9. Works constructed by the concessionnaire in the establishment of a public power plant are public works. The declaration of public utility confers upon anyone deprived of water of which 

he has previously made use the right of indemnity. Reparation may 

consist entirely or in part of compensation in kind.

ARTICLE 10. In consideration of the payment of equitable and 

necessary preliminary indemnities, the concessionnaire may 

1. Establish and maintain, on or beneath private property, canals, 

tunnels, and underground conduits necessary to the operation of the 

power plant or to the fulfillment of the obligations imposed by the 

decree of concession in the interest of irrigation or drainage, provided that such works do not involve serious difficulty in the use of 

the surface of the ground by said private parties.

2. Conduct power-transmission systems over or under the ground, 

for which purpose he may erect the necessary supports and install 

accessory apparatus for the proper operation of such transmission 

systems.

3. Occupy the river bed and by raising the water level submerge 

the uncultivable shores of nonnavigable watercourses.

Existing buildings, yards, gardens, parks, and inclosures connected with residences can not be subjected to the rights of way 

established by this article.

In the matter of application for such rights of way, the courts 

must reconcile the interests of the enterprise with property interests. 

They may authorize a provisional execution of the works in consideration of a deposit by the concessionnaire of a sum fixed by them.

ARTICLE 11. In all cases other than those in which the rights of 

way defined in the preceding paragraph can be established, the concessionnaire is bound to acquire all lands necessary for the establishment of all works constituting the plant and its stationary appurtenances, as well as for proper construction and maintenance of dams.
FOREIGN LEGISLATION RELATIVE TO WATER POWERS. 71

Indemnities shall be determined in accordance with paragraph 2 et 

seq. of the law of May 21, 1836.

SECTION III.

ARTICLE 12. At the expiration of a fixed term the concession, together with all obligations as determined by the conditions of the 

articles of concession according to article 4 hereof, shall revert to the 

nation without indemnity. Within five years immediately preceding 

such expiration steps must be taken toward the institution of a new 

concession. The holding concessionnaire has the right of preference 

under equal conditions. If, two years before such expiration, no new 

concession has been instituted, he shall have the right to demand the 

extension of his concession for a new period of ten years. The nation 

or the new concessionnaire continues to be bound for a period of five 

years after the expiration of the original concession to fulfill the conditions of contracts for furnishing water or power held by the former 

concessionnaire to the public service^, and to individuals after the 

needs of the public service are satisfied. In no case can the nation be 

required to furnish larger amounts of water or power than those rendered possible by the conditions of utilization of the concession at 

the time of its reversion.

ARTICLE 13. The nation may at any time after the expiration of the 

first fifteen years repurchase the concession. Such redemption is decided by decree in the state council, in the presence of the concessionnaire, and must involve the entire concession. The nation is bound 

to fulfill the regular contracts for furnishing water and power entered into by the concessionnaire previous to the decision of the minister instigating the redemption proceedings, under conditions set 

forth in paragraphs 3 and 4 of article 12.

The indemnity for redemption shall be fixed by a commission created by decree and composed of nine members, of whom three shall 

be designated by the minister of public works, three by the concessionnaire, and three by selection of the six members already provided. 

If, within one month after the appointment of the representatives.of 

the nation and of the concessionnaire, they shall fail to make unanimous selection of the three remaining members, such appointments 

shall be made by the chief justice and associate justices of the court 

of appeals of Paris.

All disputes relative to the redemption are submitted to the council 

of state for settlement. Appraisal is obligatory, if demanded.

ARTICLE 14. A concession shall be declared forfeited, under conditions as set forth in the articles of concession, by the minister, but 

the concessionnaire shall have the right to appeal to the council of 

state, which shall, in-case such forfeiture is found to have been un-
72 PUBLIC UTILITY OF WATER POWERS.

warranted, allow indemnity to the concessionaire. The decision of 

the minister and the judgment of the council of state are announced 

to the concessionaire and published in the commune in which the 

power plant is situated. The minister may, if he deems desirable, 

and shall, if requested so to do by the forfeiting concessionnaire or 

by owners of agricultural or industrial establishments holding valid 

contracts for the furnishing of water or power, institute proceedings 

for sale of the concession at public auction. Petition for such auction 

sale shall be made within three months after the publication of the 

decision of the minister or of the judgment of the council of state 

in case of appeal, and the petitioner must guarantee in advance the 

necessary costs of sale. The forfeiting concessionnaire can not become a purchaser. The proceeds of the sale belong to the concessionnaire. The purchaser is vested with all the rights and obligations 

of the forfeiting concessionnaire, with respect to both the public and 

the nation, under the conditions provided in paragraphs 3 and 4 of 

article 12.

SECTION IV.

General conditions.

ARTICLE 15. In case the concessionnaire shall fail to comply with 

conditions imposed in the articles of concession, or in ministerial decisions concerning details of construction, or shall disregard any 

water laws or regulations, or stipulations concerning duties to be fulfilled to the public service, the same shall constitute a violation of 

law and shall be subject to the same treatment as in matters relating 

to public ways, punishable by fine of 16 to 300 francs ($3 to $55). 

In case of repetition of the offense within the same year, the maximum penalty shall l>e 3,000 francs (about $500). Interference with 

the exercise of supervision shall constitute a misdemeanor, which shall 

be subject to fine by the proper corrective tribunal of 16 to 3,000 

francs ($3 to $500).

ARTICLE 16. There is hereby created, under the jurisdiction of the 

minister of public works, a mixed commission on water-power plants, 

charged with 

1. Examining and compiling data procured by cooperation between 

local services with reference to the control of waters, with a view to 

their utilization for the public service, industry, and agriculture.

2. Giving advice upon applications for concessions for water-power 

plants and upon proposed articles of concession, with a view to the 

utilization of the water and power for the public service or by properly 

authorized companies.

This commission shall be composed of (1) one counselor of state, 

president; (2) five legal advisers, viz, from the department of public 

works, the director of roads, navigation, and mines and the director
FOREIGN LEGISLATION RELATIVE TO WATER POWERS. 73

of railroads; from the department of agriculture, the director of 

agriculture and the director of agricultural hydraulics; from the department of the interior, the director of departmental and communital administration; (3) two members of the general council of 

bridges and roads and two members of the commission of agricultural 

hydraulics; (4) two " maitres des requetes " (members of the council 

of state next in rank to counselors) ; (5) two electrical or railroad 

engineers; (G) the chief engineer of bridges and roads, secretary.

The members of the commission, other than the legal advisers, shall 

be named by decree. The legal members, in case of absence or other 

interference with their duties, shall be represented by one of the 

members of their department, designated by the competent minister. 

If all the interested officials do not concur in an opinion of the waterpower commission, decision shall be rendered by decree of the council 

of state.

ARTICLE 17. Public administrative regulations shall determine all 

necessary measures for the execution of this law, and especially the 

forms in which applications for concession shall be presented and 

examined, the arrangement of meetings of interested local services 

for their consideration, and rules concerning the operation of the 

commission provided in article 16.

ARTICLE 18. All laws and regulations contrary to this law are 

hereby repealed.
CHAPTER IV. 

LAWS PKOPOSED IN THE FRENCH PAKLIAMENT.

LAW PROPOSED BY M. ALBERT LEBRUN, FOR REGULATING HYDRAULIC PLANTS ON NONNAVIGABLE 

WATERCOURSES. a

LEGISLATION NOW IN FORCE.

All water-power legislation in France rests on the distinction established by the civil code and confirmed by a century of jurisprudence that is, on the distinction between navigable waters, which belong to the public domain (article 538 of the civil code),6 and nonnavigable waters, none of which are included in the public domain.

Of the navigable watercourses the nation has entire disposition. It 

grants under rental permission to take water, to occupy lands with 

a view to irrigation, or to erect hydraulic plants; but these permits 

are of precarious tenure and revocable without indemnity, a feature 

that sometimes constitutes an obstacle to the utilization of the water, 

so that a modification of the law is therefore desirable. Such a modification is even now under consideration by the commission on public 

works.

If a project has the character of a public utility, it may profit by 

the government concession. Thus was organized, under the special 

law of July 9, 1902, the Society for Motive Power of the Rhone, 

which, by utilizing the waters of the river, supplies light and power 

to a group of Lyonnaise communities.

Nonnavigable waters are governed under articles 644 and 645 of 

the civil code, which read as follows:

ARTICLE 644. Anyone whose property borders on a watercourse, other than 

that declared part of the public domain by article 538, may use the water in 

passage for irrigating his property. Anyone whose property is traversed by this 

watercourse may also use it as it passes through his land, provided he returns it 

to its regular channel on issuance from his property.

0 Report of commission appointed to examine a proposed law regulating water powers 

on nonnavlgable watercourses, Chamber of Deputies, 9th legislature, session-of 1908.

6 Highways, roads, and streets under the control of the State and navigable rivers and 

streams are considered part of the public domain.

74
LAWS PKOPOSED IN FRENCH PARLIAMENT. 75

ARTICLE 645. If a contest arises between proprietors to whom these waters 

may be useful, the courts, in giving judgment, must reconcile the interests of 

agriculture with the property rights; and in all cases the individual and local 

regulations concerning the course and usage of the waters must be observed.

The law of April 8, 1898, sanctioned in article 3 a usage which was 

long discussed, but which was established long ago by jurisprudence:

ARTICLE 3. The bed of nonnavigable watercourses belongs to the proprietor 

of the two banks. If the two banks are owned by different proprietors, each 

one of them owns one-half of the bed, following an imaginary line traced down 

the middle of the watercourse, save and excepting contrary title or limitation.

It is plain from the above provisions that the owner of the bed of 

the river has the right to use the running water which traverses or 

borders his property. The nature and extent of this right have long 

been under discussion, although they have been established by law. 

It is admitted that " the proprietor of only one bank may use the 

water as well as he whose grounds are traversed by the stream, not 

only for irrigation but for industrial purposes, provided always that 

he does not divert more water than he could use for irrigation." 

(Statement of grounds of complaint.)

This right of usage is justified by the risks to property arising 

from proximity to a watercourse subject to rise and overflow and also 

by the obligations entailed. Maintaining clear channels is one of 

the obligations of the riparian owner, and in case of nonperformance 

by the parties responsible the work is done officially under the direction of the hydraulic service and the costs, charged to the fund for 

departmental cooperation, are then recovered from the recalcitrant 

proprietors. The expense of cleaning varies from year to year, ranging between a million and a half and two million francs.

Eipariaii rights being thus defined, what is the method of procedure for regulating hydraulic power on a nonnavigable watercourse ?

The riparian proprietor who possesses the full rights to a fall of 

water, whether owned by original right or acquired by amicable purchase, requests a permit from the administration. For a long time 

this permit was granted by virtue of the law of August 12-20, 1790, 

the government decree of 19 Ventose, year VI, and in conformity 

with the circulars of October 23, 1851, and December 26, 1884. Today the law of April 8, 1898, defines the matter in articles 11 et seq.

ARTICLE 11. No clam or other work destined for the establishment of a canal 

regulator, mill, or factory can be constructed on a nonnavigable watercourse 

without the authorization of the Government.

A decree dated August 1, 1905, determines the details of the application of the law.

But this authorization is not of the same nature as the concession 

or permit granted for a stream forming part of the public domain.
76 PUBLIC UTILITY OF WATER POWERS.

It can not be granted except for reasons of public interest and is more 

in the nature of a police measure. For example, the Government 

ascertains whether the flow of the water, the security of the riparian 

inhabitants, and the public health will not be injured by the projected enterprise. It does not inquire, however, what use the petitioner proposes to make of the water or whether such or such a 

riparian dweller will be injured by the work in question.

For this reason this authorization is given subject to the rights of 

the third party; and the courts have the power to appraise the damages that might result. This power of decision may go so far as to 

demolish works which are considered too injurious to the interests of 

a riparian inhabitant.

In addition, the Government can withdraw an authorization previously given for these same police considerations, as is indicated in 

article 14 of the law of April 8, 1898:

Permits may be revoked or modified without indemnity, either for considerations of public health or to prevent or check inundations, or finally, in cases of 

general regulation, as provided in article 9. In all other cases they can be 

revoked or modified only on condition of indemnity.

In the interests of agriculture, the laws of April 29, 1845, and July 

11, 1847, created an .aqueduct and dam service for irrigation in the 

following terms:

Law of April 29, 18^5. ARTICLE 1. Any proprietor who wishes to use for the 

irrigation of his property the natural or artificial waters over which he has the 

right of disposal may obtain passage of these waters over the intervening property by payment of a just indemnity in advance. Houses, courts, gardens, and 

inclosures pertaining to dwellings are not included in this provision.

Law of July 11, IS-'fl* ARTICLE 1. Any proprietor who wishes to use for the 

irrigation of his property natural or artificial waters over which he has the 

right of disposal may obtain the right to place on the property of the owner 

of the opposite bank such constructions as are necessary for the collection of 

the water by payment of a just indemnity in advance. Buildings, courts, and 

gardens pertaining to dwellings are not included in this provision.

It is proposed to extend the benefit of these provisions to industry, 

as the latter is not less important to the general welfare than agriculture.

KEVIEW OF PKOPOSED LEGISLATION FOE, PRIVATE POWEE,

PLANTS.

There are two points on which all these measures agree; one is the giving to public plants the right to sell their surplus power to private industry ; the other is the extension of the privileges conferred on irrigation enterprises by the laws of 1845 and 1847 to reservoirs and dams 

constructed for industrial purposes. But if there is agreement on a 

few points, there is wide divergence on some fundamental questions. 

The measures relate to two diametrically opposed principles, and
LAWS PEOPOSED IN FRENCH PARLIAMENT. 77

from 1898 to 1904 caused long and heated discussions between their 

authors, in which all concerned in the utilization of "white coal" 

were vitally interested.

The first bill is by M. Jouart, deputy, and bears date of March 3, 

1898. On July 6, 1900, it was followed by a bill brought in by Messrs. 

Baudin and Jean Dupuy. Both provide for the direct intervention 

of the nation in the creation of waterfalls at least of those exceeding 

100 horsepower by means of concessions analogous to the concessions for public works. The Baudin-Dupuy measure proposes that 

such concessions shall be limited as to term and be subject to redemption after a certain period; further, that they shall be subject to forfeiture in case of failure to comply with any of the prescribed conditions. The bill further provides that on the termination of a concession the property and appurtenant improvements shall revert to 

the nation unless the concession shall be extended by agreement, in 

which case the former concessionnaire has the right of preference 

over eventual competitors. No right of indemnity is granted to 

riparian owners who are deprived of water rights and privileges that 

they have not utilized.

This bill has been widely criticised; first, by riparian owners, who 

claim that the rights assured to them under article 644 of the civil 

code have been ignored; second, by industrial concerns which are 

antagonistic to the nation's interference in purely private enterprises; 

and, third, by those who, although not directly interested in the hydraulic industry, oppose the abandonment of the ancient legal principle that distinguishes waters of the public domain from those of 

private possessions.

% % :$: :$: :$: :$: ^

Answering this criticism, other proposals were made providing 

for the least possible intervention of the nation and the maintenance, 

with slight modifications, of previous legislation. In this class may 

be mentioned especially the so-called "congress of Grenoble bill," 

drawn up by M. Michoucl, in which the several riparian dwellers, 

having rights over the same fall, are treated as coproprietors of a 

property and are permitted to divide up their interests by a system of 

legal licitation, allowed under article 815 of the civil code. This 

licitation takes place in the civil courts, and the sum paid by the 

purchaser is distributed among the proprietors on a pro rata basis. 

The purchaser may then with entire security request administrative 

authorization under the law of 1898. Under a somewhat similar system, supported by Messrs. Hauriou and Acler, liquidation of riparian 

rights is accomplished by a kind of licitation which is of an administrative rather than a judicial character, as appeal is made to the laws 

of 1865 and 1888 relating to the constitution of corporate associations. 

In this the majority of the riparian owners constrain the minority
78 PUBLIC UTILITY OF WATER POWERS.

to agree to pooling their rights in order to create a waterfall, and to 

acquiesce in the sale. The remuneration is then equitably distributed, as in the case cited above. These bills tend to extend to the 

limit the rights of riparian dwellers and to reduce to a minimum the 

nation's power of intervention.

In June, 1903, the minister of agriculture organized a commission 

to study the measures necessary " to insure a better utilization of 

the water power of nonnavigable streams." This commission was 

so constituted that all interests were represented. It included members of the council of state, civil and government engineers, lawyers, 

manufacturers, etc. The conclusions of the commission formed the 

basis of the bill laid before the Chamber January 15, 1904, by 

M. 'Mougeot, then minister of agriculture.

This bill and others of the same kind were studied and discussed 

until, in 1907, the present commission submitted the following bill, 

which in the judgment of its members incorporates the best features 

of its predecessors:

THE PROPOSED LAW. 

SECTION i.

Private hydraulic plants.

AKTICLE 1. Private hydraulic plants on nonnavigable watercourses 

are divided into two classes.

The first class comprises those which are subject only to legislation anterior to the present law.

The second class comprises those which have benefited by the provisions of the present law under the conditions stipulated in articles 

2 and 3.

Manufacturers have the choice of remaining under the regime 

of existing legislation or of asking to benefit by the provisions of 

the present law.

ARTICLE 2. If a factory desires to benefit under the provisions of 

the present law, an express request to this effect must be filed, either 

at the time of the request for authorization of the work, or subsequently if the matter concerns a factory already in existence.

The petitioner must indicate the sections of the banks to be affected 

by the retention of water by the dams or by the projected deflection 

of water for use in the factory.

He must prove that he possesses (1) the land necessary for the 

establishment of the factory; (2) one of the banks required for the 

site of the projected dam; (3) the riparian rights for at least onethird of the total length of the banks in the section concerned, not
LAWS PROPOSED IN FRENCH PARLIAMENT. 79

including in the calculation of this third those parts belonging to 

the public domain of the nation, the Departments, or the communes.

ARTICLE 3. The demand is subject to an examination, whose forms 

are the same as those of the investigation prescribed by article 12 of 

the law of April 8, 1898.

It is decided by decree in council of state whether the request shall 

be granted or denied; it being denied if the conditions necessary to 

obtain the permit provided for in the law of April 8, 1898, and the 

present law have not been fulfilled, or if the investigation develops 

objections that the council of state deems valid.

The permit is barred by limitation if a part of the work, specified 

in the decree, is not executed within a period of three years after the 

issuance of the decree. It may always be withdrawn by decree in 

council of state if the conditions prescribed in the act of authorization, under application of article 6 hereinafter set forth, for the 

protection of the general public, have not been or cease to be complied with.

ARTICLE 4. When a request for the establishment of a new plant 

has been filed, competing requests, comprising either in whole or in 

part the sections of watercourse included in the first request, may be 

framed under the same conditions as those prescribed for the first. 

It shall be the duty of these petitioners to notify all preceding petitioners of these requests.

When there are several competing requests for the same fall, preference shall be given to that petitioner who shall prove possession of 

the largest fraction of riparian rights.

When the requests relating to different sections of the same watercourse are partly competitive, the preference shall be given to the 

enterprise contemplating the largest production of power, provided 

 the difference in its favor, under average conditions of utilization of 

the works to be established within a period of three years, as provided 

in the preceding article, amounts to not less than one-fifth.

When the right of preference can not, be determined by either of 

the preceding regulations, preference shall be determined by priority 

of demand.

ARTICLE 5. The request for authorization, as provided in the preceding articles, may be filed by a free association of riparian owners, 

organized under the laws of June 21, 1865, and December 22, 1888. 

Such association can not be transformed into an authorized association.

The corporation thus organized may cede temporarily or finally its 

rights over a fall or factory. Its manager has the right to determine 

for the members the reserves of water in kind, the restitutions of 

motive power, and the money indemnity, observing .always the regulations as set forth in articles 8 et seq. of the present law. He shall 

distribute among the parties concerned all proceeds resulting from
80 PUBLIC UTILITY OF WATER POWERS.

the cessions mentioned above, save and except when recourse is had 

to the civil courts.

The statutes determine the procedure in these various operations.

ARTICLE 6. The act of authorization for hydraulic works determines 

the precautions to be taken for the protection of the general public, 

especially those concerning the public health, protection from inundation, alimentation of riparian owners, needs of irrigation, conservation and free circulation of fish, and protection of the landscape.

It may contain restrictions relating to the restoration of water 

in kind at specified points of the section in the interest of enterprises 

designed to supply nonriparian communities or collective irrigation. 

These restrictions are null and void if the project to which they relate 

has not been approved within a period of two years from the elate 

of the act of authorization, or if, after being approved, the work is 

not executed within a period of three years from the date of the 

approval.

During the first ten years immediately succeeding the beginning 

of operation of the factory, any public authority may requisition for 

the public service it administers a portion of the converted or unconverted power not exceeding one-fourth at low water. This requisition is authorized by a decree setting forth the reasons therefor, 

rendered in council of state on the report of the minister of agriculture and of the ministers of the departments having jurisdiction over 

the public services concerned. The requisition is executory only on 

payment of a preliminary refund of a corresponding quota of the 

expense of establishment, maintenance, and exploitation of the works 

or apparatus used for the service making1 the requisition, or on payment of a corresponding rental fee, if the requisition is temporary.

The Government shall have the power to make requisition, under 

the same conditions, for a quota of the increase of power at low 

water produced by works constructed under the terms of the present 

law, with a view to increasing the capacity of a factory erected 

before the promulgation of the law.

In case of litigation the sum to be refunded or the rental fee is 

determined by the civil court on the testimony of experts.

The Government may renounce in whole or in part its right of 

requisition for a supply of power at a fixed price, agreed upon with 

the manufacturer. The modifications of the right of requisition and 

the contracts for the supply at a fixed price shall be approved by a 

decree in council of state on the report of the minister of agriculture 

and of the ministers of the departments having jurisdiction over the 

services concerned.

ARTICLE 7. Permit is given under reserve of the rights of third 

parties.
LAWS PROPOSED IN FRENCH PARLIAMENT. 81

The interested parties may lay before the civil court their demands 

for reserve or restitution of water in kind, for restitution of motive 

power, or for indemnity.

The judge, in giving sentence, must reconcile the interests of property with those of agriculture and industry.

He may order that a provisional indemnity shall be paid by the 

manufacturer before operation of the injurious work begins.

He will be guided, however, by the following regulations:

ARTICLE 8. For preexistent irrigation or reservoirs of water for 

domestic supplies the parties interested may demand free restitution 

of the water in kind. Reciprocally, the manufacturer has the right 

to discharge this obligation by making this restitution, or by indemnifying, when necessary, each one of the interested parties for the 

expense entailed on him by the conditions resulting from the utilization of this water.

By exception, and when he has not been notified by the decree of 

authorization of the express restrictions required by the needs of irrigation, the judge may decree, on payment of indemnity, the diminution or suppression of existing irrigation the maintenance of which 

would involve excessive difficulties, if the construction of the projected work is clearly of greater importance than the individual 

enterprises obstructed.

For rights of irrigation and domestic supplies of which no use has 

been made prior to the request for a permit for the works, the judge 

will decide whether and in what measure the individual claim for 

reserve in kind should be allowed, or whether the rights invoked 

should be satisfied in whole or in part by a money indemnity. The 

manufacturer may always discharge his obligations to the holders of 

these rights by furnishing the amount of water in the natural state 

necessary for their property bordering on the watercourse, under the 

conditions and at the price they themselves would have had to pay 

formerly with works using only simple gravity, these conditions and 

this price to be determined by experts in case of disagreement.

ARTICLE 9. The right of riparian owners to the use of water for 

other purposes than irrigation and household purposes is transformed 

into right of indemnity.

Nevertheless, if there are preexistent motive powers in the sections 

of the watercourse affected by the construction of the projected 

waterfall, the manufacturer must restore to those having rights over 

such powers, if such exist, all the power of which they have had disposal. This restitution may be made in the form of electric energy, 

with indemnity for transformation if necessary.

Those having these rights may, if they prefer, give up their right 

to restitution of the power in kind in exchange for indemnity.

23321 No. 23S 10 6
82 PUBLIC UTILITY OF WATEE POWERS.

For restitution of power in the form of electric energy, cited above, 

the manufacturer may secure rights of way for pole lines, etc., as 

provided in article 12, paragraph 3, of the law of June 15, 1906, conferred on the concessionaire of an enterprise for distributing electric 

power which has been declared a public utility.

ARTICLE 10. The factories established under the terms of the 

present law have the benefit of the aqueduct and dam service as regulated by the laws of April 29, 1845, and July 11, 1847. On payment 

of a just preliminary indemnity they also have the right to occupy 

the bed of a watercourse and to submerge the banks by raising the 

water level.

Nevertheless the owners of the property injured by these services 

have the right to require the manufacturer to purchase the land submerged as well as the sites necessary for the construction of the 

works or of surface or underground canals.

The proprietor may compel the manufacturer to construct all the 

works necessary to insure communication between all the parcels of 

land traversed.

All disputes arising from application of the terms of this article 

are under tht jurisdiction of the civil court.

SECTION n. 

Hydraulic plants declared a public utility.

ARTICLE 11. Hydraulic plants may be established by virtue of a 

declaration of public utility and may be made the object of a special 

concession when their principal object is to insure the supply of 

power necessary for the public services of the nation, the Departments, the communes, and syndicates of communes, or for authorized 

associations and other public institutions.

ARTICLE 12. The declaration of public utility is made and the concession is approved, after due investigation, by decree in council of 

state on the report of the minister of agriculture and of the ministers 

of the departments having jurisdiction over the services concerned.

The declaration of public utility, however, is made by a law passed 

after investigation by and on the advice of the council of state, when 

the works relate to the deflection of waters from their natural bed 

over a line of not less than 20 measured kilometers following the bed.

The concession may be granted, with power of reconveyance, to 

Departments, communes, and syndicates of communes.

ARTICLE 13. The conditions under which the concession is granted 

specify (1) the services for which the factory is established and the 

conditions under which they are to be served; (2) the duration of the 

concession; (3) the works, lands, buildings, and engines of all kinds 

which constitute the dependent realty of the concession; (4) the reg-
LAWS PEOPOSED IN" FKENCH PAKLIAMENT. 83

ulation of the water of the factory, especially measures relating to 

public health, protection from inundation, domestic supplies of the 

riparian population, needs of irrigation, conservation and free movements of fish, and protection of the landscape; (5) the rights and obligations of the concessionnaire, both during the time of the concession 

and at its expiration, and regulations relating to redemption of the 

concession and forfeiture, if there should be any.

The conditions must be conformable to the type approved by decree in council of state. Every derogation made therein sfyall be 

expressly mentioned in the act of concession.

ARTICLE 14. Modifications may be made in the uses of the power, 

as specified in the statement of conditions, on the demand of the concessionnaire and by virtue of decrees giving the reasons therefor, 

rendered in council of state after investigation.

In addition, there is at all times liberty to sell and use the surplus 

power and the residues of exploitation.

Contracts made under the terms of the preceding paragraph will remain valid in case of the return of the factory to the grantor for any 

cause whatsoever for a period specified in the statement of conditions. 

 ARTICLE 15. At the expiration of the period determined the concession, with all its dependencies, as specified in the statement of conditions, reverts to the nation without indemnity.

During the ten years preceding the expiration of the concession a 

new concession may be obtained. Conditions being equal, the concessionnaire in possession has the right of preference.

If, five years before the concession expires, no new concession has 

been granted, the concessionnaire may demand a prolongation of his 

concession for another ten years, under the same conditions as the 

first.

The same provision applies five years before the expiration of each 

new period of ten years.

ARTICLE 16. Factories declared a public utility have the benefit of 

the services mentioned in article 10 of the present law. There is also 

a general benefit resulting from the right-of-way privileges granted 

by article 9 to private factories subject to requisition for the restitution of power in kind.

The expropriation necessary for the establishment of factories of 

public utility is effected under the conditions provided for in the last 

five paragraphs of article 16 of the law of May 21, 1836. If, however, 

there is question of expropriating lands on which there are buildings, 

the law of May 3, 1841, alone is applicable.

ARTICLE 17. The decree of concession determines the indemnities 

which may be allowed, if there are any, for deprivation of the riparian rights held under article 644 of the civil code in all cases in 

which effective use thereof has not been made.
84 PUBLIC UTILITY OF WATER POWERS.

ARTICLE 18. The factories'declared of public utility and their dependent realty, as defined in the statement of conditions, are classed 

as public domain. Their works are classed in the same category as 

the works dependent on the commission of public roads, ways, canals, 

etc., especially as regards punishment of transgressions.

Transgressions are liable to a fine of 16 to 300 francs ($3 to $55).

ARTICLE 19. Factories forming an integral part of enterprises declared a public utility, such as railways, tramways, public lighting 

and power systems, etc., benefit under the terms of articles 10,14, and 

18, hereinbefore set forth. The other provisions of the present law 

can be applied to them only by modification of the act of concession, 

approved under the same forms as the act itself. In default of 

modification thus approved, they remain subject to the same regime 

as the rest of the enterprise of which they form a part.

SECTION III.

Collective works for the improvement of the regularity of flow of

watercourses.

ARTICLE 20. The execution and maintenance of works designed to 

improve the regularity of flow of watercourses with a view to industrial and agricultural utilization may give rise to the organization 

of free corporate associations. These associations may be converted 

into authorized associations by application of article 8 of the laws 

of June 21, 1865, and December 22, 1888, provided the conditions of 

majority, prescribed by the statutes, are fulfilled.

ARTICLE 21. Proprietors of lands and factories who are not members 

of the association but who would profit directly by the improved 

regularity of flow of the watercourse can be compelled to pay to the 

association, when converted into an authorized association, indemnities, which shall be determined by the council of prefecture, save 

and except on appeal to the council of state.

Actions for indemnities for plus value can be brought only by 

virtue of a preliminary authorization granted by decree rendered 

in council of state. The decree may decide that the indemnities shall 

be payable in annual installments, taking into consideration every 

year the utilization made of the additional water or motive power 

resulting from the works.

ARTICLE 22. The proprietors of lands and factories which would 

profit directly by the improvements in the regularity of flow of watercourses made by the works of the nation, the Departments, the communes, or their concessionnaires and by authorized corporate associations may be compelled to pay indemnities for plus value under 

the conditions laid down in article 21. Actions for indemnity can be
LAWS PKOPOSED IN FRENCH PARLIAMENT. 85

brought only by virtue of a special authorization, granted, on proposal of the minister of agriculture, by the act which declared the 

works a public utility. '

SECTION IV.

General provisions.

ARTICLE 23. An order of public administration will determine the 

measures necessary for the execution of the present law. This 

especially applies to (1) the papers to be sent with the request, as 

set forth in article 2, and also the procedure to be followed to file the 

request and to fix the date thereof; (2) the method of verifying the 

execution of the work within the period prescribed in article 3, and 

the forms by which this period may be prolonged in case of delay 

due to obstacles beyond human control; (3) the method of notification and examination of competing requests, the limits of time 

within which modifications of requests under examination may be 

considered with a view to determination of preference; (4) the method 

of verification of the limitations set forth in the second paragraph 

of article 6; (5) forms of the examination to be made of modifications 

relating to the uses of the power from factories of public utility under 

the terms of article 14; (6) forms under which the interested parties 

shall be admitted to plead their claims to the indemnities provided 

for in article 17.

LAW PROPOSED BY M. BATJDIN AND M. MILLERAND 

FOR REGULATION OF HYDRAULIC POWER PLANTS 

ON WATERCOURSES AND CANALS OF THE PUBLIC 

DOMAIN."

DIGEST OF THE GOVERNMENT PBOPOSAL.

Two kinds of power plants are recognized (1) private power 

plants, the energy of which is used exclusively for the industrial needs 

of one special establishment and affects only private interests; (2) 

public power plants, which are veritable factories of energy destined to 

furnish power and light to a whole district and which are therefore 

of public utility.

The separation of the two kinds of plants is well defined in practice. Unless the public sale of power is intended by those operating 

power plants, the Government must grant a permit for the use of the 

water. Under the present rule this permit is precarious, as the plant, 

according to the interpretation of the law by the state council, can 

be subjected to restrictions and regulations made in the interests of 

the public, and the owner can be compelled to render special services

"Report of the commission of public works, M. Pierre Baudin, deputy, Chamber of 

Deputies, Ninth Legislature, extra session of 1908; supplement to the report of the meeting of December 17, 1908.
86 PUBLIC UTILITY OF WATER POWERS.

for the benefit of the public; but if he has received no aid from the 

Government and has been left to his own resources in the establishment of his plant, he nevertheless remains a free agent. After meeting his obligations in the form of taxes, he need account to no one 

for the power that he derives under the permit.

As soon, however, as power is offered for sale, the character of the 

power plant changes completely. It becomes a public utility and its 

functions must not be hampered by private interests. The grantee is 

no longer a private user of power for industrial purposes, but in the 

operation of his plant he is subject to government regulations which 

may be productive of results not specifically beneficial to his private 

interests, but which are justified by public policy.

Certain conditions and limitations may be specified in the permit 

and a special tax may be levied to regulate the conditions under 

which the service may be used. In other words, exclusively private 

interests become abolished or become secondary to public interests. 

A third party, namely, the public, is introduced into the arrangement, 

with power to appeal to the courts for adjustment of grievances. 

Finally, there remains to be considered the interest of the concessioimaire, the value of whose property may be decreased and whose 

profits may be reduced by the application of the regulations prescribed.

CRITICISM AND JUSTIFICATION OF THE NEWLY PROPOSED LAW.

The commission does not object to the legal place assigned to public 

power plants. It acknowledges that the proposed system by which 

private power plants shall be governed would, in large degree, do 

justice to collective interests. But the character of the private plant, 

as proposed in the bill, in itself justifies certain reservations and 

criticisms. If the question should be decided entirely on the legal 

principles involved, the commission would recommend the absolute 

abolishment of private power plants.

 It should not be forgotten that a permit to take power from a river 

belonging to the public domain involves a concession of public 

property. The legal phase of the transaction is therefore not influenced either by the amount of power granted nor by its final disposition. Such a concession certainly reduces the amount of possible 

public benefit that could be derived from a watercourse. The Government must therefore not only provide that the grantee shall not 

derive an excessive benefit from this concession, but must insure for 

itself, in return for the concession, certain guaranteed benefits, specified in the articles of concession.0

0 In Switzerland, where private watercourses are an exception, the system of concession is applied to all power plants of the public domain, as the use of public watercourses for the development of energy constitutes a sovereign right of the Government.
LAWS PROPOSED IN FRENCH PARLIAMENT. 87

The commission recommends the system of concession for all 

water-power plants located on watercourses belonging to the public 

domain, without distinction between private and public power plants. 

To permit the establishment of private plants on such watercourses 

without concession would involve the abandonment,-without compensation, of a very important portion of the public domain. Private 

plants are far greater in number than public ones and represent in 

the aggregate an enormous horsepower. The commission believes 

that the framer of the bill under consideration did not, in his proposal to allow private plants to be established without concession, 

take into account the inconvenience which the system of simple permits for such plants would produce. The following quotation from 

the Government's own dissertation will support the view of the coinmission :

Whenever the demand for a grant is made (for private plants) the Government must provide that the compliance with such demand does not injure 

national or public interests, nor prevent or delay the development of public 

power plants. In all decisions by the Government preference must be given to 

public interest.

From this declaration it becomes evident that the idea of government control is dominant, and that without provisions for concession 

on the public domain such control can not be exercised.

The government representatives, in their conference with the commission, have acknowledged the justice of these observations, but they 

have also pointed out certain difficulties which would result in practice if the law as suggested by this commission were strictly enforced (meaning the concession for all power plants on watercourses 

of the public domain).

It was mentioned that if the formalities necessary to the establishment of government control were required from small plants, the 

procedure would be entirely out of proportion to the importance of 

the establishments. In addition, the Government would be required 

to exercise control over a multitude of inferior establishments when 

its attention should be concentrated on the more important questions 

of the development of private property. It was also pointed out that 

under a concession covering a certain term, the owner would be 

entitled to damages if it were found necessary during that term to 

confiscate or to damage the plant for any purpose of public benefit. 

The concession coul4 not be terminated before the expiration thereof 

except by forfeiture and redemption. Under such conditions, would 

it seem advisable to increase the already large number of small power 

plants, which are now useless for public service and which will in the 

future surely prove to be an obstacle and an unnecessary expense to 

the Government, if for any reason said Government should be com-
88 PUBLIC UTILITY OP WATER POWERS.

pelled to change the regulations on watercourses on which any of 

these small plants might be located ?

The commission acknowledges the necessity for modifying the concession. It has included in the Baudin proposal a distinction between 

types of power plants, based on the value of the power in the different 

watercourses of the public domain. It is not proposed to exempt 

permanently from the requirements of concession all small power 

plants, but the commission's recommendations affect those whose 

present and prospective connection with exclusively industrial private 

interests is beyond dispute. The question of future utilization is 

more important than that of present consistency of legal procedure. 

Every contract having for its purpose the sale of power, of whatever amount, must be placed under concession. This rule will therefore be applied to two kinds of hydraulic establishments first, powerplant concessions based on the amount of power produced, and second, concessions based on the use to be made of the power.

For the large number of small-power plants and for some of those 

of medium size, the permit system is proposed.

Mention should be made of the joint meetings of the commission 

and the representatives of the power industry, who have approved 

the new legislation and have made certain suggestions. The commission had already foreseen some of these suggestions and had 

provided therefor. It should be understood that neither the executive nor the legislative branch of the Government intends to enact 

any measure that will inhibit the growth of industry. Without 

framing a general rule which will meet all unexpected difficulties, the 

administration must fix the duration of the concession according to 

the importance of the plant and the amount of capital invested. At 

the expiration of any concession, preference should be given to the 

former grantee in making a renewal.

THE PROPOSED LAW.

SECTION I.

Classification of power plants.

AETICLE 1. Hydraulic power plants established on the public domain shall be classified as " authorized power plants" and " power 

plants under concession."

AETICLE 2. "Authorized power plants " shall be defined as those 

which develop a gross energy of not more than 250 horsepower at 

low water, and which have not for their principal purpose the sale 

of power. All other power plants shall be designated as " power 

plants under concession."
LAWS PROPOSED IN FRENCH PARLIAMENT. 89 

SECTION II.

Authorised power plants.

ARTICLE 3. Authorized power plants shall be governed by laws and 

regulations now in force. All authorizations are subject to cancellation, and they shall not in any case be granted for a period longer 

than fifty years. At the expiration of that period the grantee shall, 

if the authorization is not renewed, restore the premises to the condition previously existing or deliver the power plant to the nation 

without indemnity therefor, as the nation shall elect.

ARTICLE 4. In the case of power plants now in existence, the fiftyyear period fixed by the preceding article shall begin from the time 

of the passage of this act.

ARTICLE 5. The surplus power of any authorized plant may, under 

exceptional conditions, be sold to the public under regulations promulgated by the minister of public works.

SECTION III.

Power plants under concession.

ARTICLE 6. All concessions for power plants shall be limited to a 

specified term and shall be made the subject of articles of concession, 

conforming to one of several types approved by decree of the state 

council, with modifications and conditions which shall be expressly 

specified in the articles of concession.

The concession shall be granted in the name of the nation by decree 

rendered in the form of a public administrative regulation. In case 

the project necessitates the diversion of water from its natural course 

for a distance greater than 20 kilometers, measured along the river 

channel, or if the capacity of the proposed plant is greater than 

18,750 horsepower, no concession shall be granted except by enactment of a special law in Parliament.

Subsequent regulations concerning the use and distribution of the 

hydraulic power shall be promulgated by decree of the state council, 

after inquiry.

Provided, That the foregoing requirements shall not apply to 

power plants which constitute a component part of an enterprise 

declared to be of public utility, which shall be subject to special 

regulations determined by decree of the state council.

ARTICLE 7. The concessionaire shall be invested with authority to 

execute the works defined in the articles of concession, together with 

all the rights which the laws and regulations confer upon the administration in the matter of public works, and said concessionnaire 

shall in turn comply with all the obligations imposed upon the 

administration by such laws and regulations.
90 PUBLIC UTILITY OF WATER POWERS.

In case of expropriation, the procedure must conform to the law 

of May 3, 1841, in the name of the nation and at the expense of the 

concessionnaire.

ARTICLE 8. The holder of a concession for a power plant shall have 

the right to occupy private property necessary for the storage of 

water and for the establishment of underground conduits supplying 

water to the power plant and conducting it therefrom, in conformity 

with the terms of the concession as approved by the administration.

Such occupation of private property must be preceded by notification to all parties interested and by special inquiry held in each of 

the communes where the aforesaid works are to be established.

Indemnities accruing from such occupation shall be regulated in 

the first instance by the civil tribunal; if appraisal is necessary, the 

tribunal shall name but one appraiser.

ARTICLE 9. The articles of concession for power plants shall 

specify 

1. The location of the plant.

2. The duration of the concession.

3. The works, lands, housing, and equipment of every kind constituting the stationary appurtenances of the concession.

4. The amount of water to be used by the power plant, and particularly provisions for its regulation so as to avoid damage to 

navigation and to afford protection against floods, to safeguard the 

public health, to conserve the interests of the people in the matter 

of water supplies and irrigation, to protect and provide for the 

migration of fish, and to preserve the natural beauties of the landscape.

5. The amount of rental to be paid to the nation for the use of the 

water and the obligations incurred in connection with works previously established by the nation for purposes of navigation, if any, 

together with all other financial conditions imposed by the concession.

6. The amount of sureties.

7. The maximum charges for the sale of power to the public.

8. The amount of water or power to be reserved for the benefit of 

public services and the conditions under which it must be placed at 

public disposal.

9. The methods of national control and provisions for the expense 

thereof.

10: Conditions under which the right of redemption may be exercised by the Government.

11. The rights and duties of the concessionnaire, in general, both 

during the concession period and at its expiration.

ARTICLE 10. All the improvements comprised in the power plant, 

including the real property and rights of way occupied by it, as
LAWS PROPOSED IN FRENCH PARLIAMENT. 91

specified in the articles of concession, shall become a part of the public 

domain and shall be subject to police regulations in the same manner 

as are the public roads, for violations of which there shall be imposed 

penalties of 16 to 300 francs (about $3 to $55).

ARTICLE 11. At the expiration of any concession for a power plant 

the nation shall immediately take possession of the plant and appurtenances constituting a part of the public domain, as defined in the 

preceding article, without liability for indemnity.

ARTICLE 12. All power plants which have, in whole or in part, been 

declared of public utility, and those under concession which do not 

have for their principal purpose the sale of power, may at all times 

dispose of excess power not utilized in the regular operation of the 

plant, under conditions fixed by the state council, on report of the 

minister of public works.

ARTICLE 13. Power plants already in existence, authorized under 

precarious and revocable title, and disposing of a gross primary 

horsepower in excess of 250 horsepower, or having for their principal 

object the sale of power, must within a period of five years from the 

date of passage of this act be placed under concession, by decree.

SECTION IV.

(General pro visions.

ARTICLE 14. Watercourses, or parts thereof, including canals of 

the public domain, to which this act shall apply are (1) those specified 

in the schedule accompanying the order of July 10, 1835, classified in 

conformity with other orders subsequent thereto; (2) those classified 

as a part of the public domain at the completion of works declared of 

public utility or following acts of redemption. Such watercourses 

and parts thereof and canals shall not be separated from the public 

domain except by enactment of law.

All claims based on rights acquired on watercourses under paragraph 1 of this article shall, under penalty of forfeiture, be instituted 

within one year from the date of passage of this act.

ARTICLE 15. The rental accruing to the nation from authorized 

power plants or those under concession shall conform to article 44 

of the law of April 8, 1898, and to regulations made or to be made in 

execution of that law. By such regulations shall be fixed the special 

conditions governing rentals applicable to plants established on the 

canals of the public domain.

ARTICLE 16. Administrative regulations, based on report of the 

minister of public works, shall cover 

1. Form of water regulations for authorized power plants.

2. Form of articles of concession.
92 PUBLIC UTILITY OF WATER POWERS.

3. Forms for plans and specifications covering projects and their 

approval.

4. Procedure to be followed in connection with the various inquiries relative to concessions and authorizations for power plants, 

and in the establishment of rights of way.

5. Eules for national supervision of power plants under concession, 

the cost of which shall be borne by the concessionnaire.

6. General regulations covering the sale of surplus power, as provided in articles 5 and 12.

7. In general, all necessary measures for the execution of this act.

ARTICLE 17. This law shall not apply to power plants already in 

legal existence.

.ARTICLE 18. All laws and regulations in contravention of this act 

are hereby repealed.
CHAPTER V.

EEVIEW OF THE WORK OF THE BUEEAU OF HYDRAULICS AND AGRICULTURAL IMPROVEMENTS OF THE 

FEENCH DEPARTMENT OF AGRICULTURE.0

ORGANIZATION OF THE BUREAU.

FUNCTIONS.

The waters of France, in their legal status, are divided inta two 

distinct categories. Rivers navigable by ships or rafts form a- part 

of the public domain and, if used principally for transportation, are 

under the control of the minister of public works. Watercourses 

navigable neither by ships nor rafts and springs, underground waters, 

etc., do not form a part of the public domain and are, according to 

their nature, subject to the more or less extended rights of the 

private individual. Their control is vested in the ministry of agriculture, which adopts and enforces measures designed to enhance 

their importance for agriculture and domestic supply. 6

The policing, conservation, and management of these waters are 

under the control of the hydraulic service, a branch of the bureau of 

hydraulics. This bureau has been under the ministry of agriculture 

since its organization in 1881.

In 1903 the bureau was organized under the name of the bureau of 

hydraulics and agricultural improvements, and its duties and importance were considerably increased by adding to the hydraulic 

service the new office of " agricultural improvements." The manifold functions of the latter were established with a view, on the one 

hand, of insuring a better utilization of the waters by agriculturists, 

and on the other, of improving land for various rural enterprises.

Until 1903 the Government had limited itself to giving assistance 

to enterprises pertaining to agricultural hydraulics by granting suba Circular of the department of agriculture.

6 The total length of waters navigable by ships or rafts in France is about 7,980 kilometers (about 4,956 miles) ; the length of those not so navigable is about 270,000 kilometers (about 167,670 miles).
94 PUBLIC UTILITY OF WATEE POWERS.

sidies for this purpose to corporate associations,® by undertaking the 

study of the most interesting projects of this nature, and, if the work 

was of very great importance, by having it supervised by government 

agents.

But such government assistance was always strictly limited to 

important canals and drainage works, the utilization of the water 

conducted to private properties being, left entirely to the initiative 

of the individual. The result of this was that the farmers, left to 

their own devices and lacking the necessary knowledge and experience, failed to profit as much as was expected from the expenditures 

of the Government. Agricultural utilization of the waters did not 

develop as was hoped. The agricultural improvement service was 

created to remedy this condition by the organization of a technical 

force composed of agronomic engineers who would guide the syndicates and landholders in the rational management of the irrigated 

lands, in the choice of crops best suited to the soil, and in the practice of irrigation. It is also the duty of this service to study, in cooperation with the agents for roadways and bridges, the economic 

effects on agriculture of the great hydraulic works. It cooperates 

with interested parties in making various improvements on the land 

(drainage, making the land salubrious, construction of farm roads, 

etc.) and in every sort of enterprise pertaining to rural engineering 

(farm buildings, dairies, distilleries, etc.).

The reorganization of the bureau of hydraulics and agricultural 

improvements has increased its usefulness by inducing a better agricultural utilization of waters and by enlarging its sphere of action.

PERSONNEL.

The bureau of hydraulics and agricultural improvements comprises two distinct branches:

In the Departments 6 the hydraulic service is organized from officials of the office of bridges and roads (engineers in chief, engineers, 

superintendents, and clerks), under the direction of the inspectors 

general of the agricultural hydraulics. For the execution of any 

large work or for a very important study, special branches of the 

service may be organized from the office of bridges and roads, detached from the ministry of agriculture. Finally, special clerks for 

agricultural hydraulics are employed in Departments where the 

hydraulic service has a great deal of work to do.

The agricultural improvement service comprises an inspection 

force vested with the control and examination of projects before they

" The syndical [corporate] associations, which were established by the laws of June 21, 

1865, and December 22, 1888, consist of groups of proprietors interested in the same enterprise of public interest. These associations can, under certain conditions and after 

complying with certain formalities, benefit under the statute of public utility.

* Administrative districts into which the French Republic is divided.
WORK OF FRENCH DEPARTMENT OF AGRICULTURE. 95

are submitted to the higher administration, a force of engineers in 

charge of territorial districts to make studies and draw up plans, and 

a force of technical agents to aid the engineers in their studies and 

in supervision of the works. In addition, professors of agriculture cooperate with this service in all things relating to agricultural research. Within the limits imposed by the necessities of their 

regular duties, they also aid the engineers and technical agents in the 

study and preparation of plans, and in the supervision and control of 

works.

COMMISSIONS.

To aid the administration in its examination of matters which havebeen studied by the Department services, a commission on hydraulics 

and agricultural improvements has been organized in connection with 

the bureau for the purpose of giving advice on technical and administrative matters submitted by the minister for examination. Reports are laid before this commission either by the inspectors general 

of hydraulics or by the inspectors of agricultural improvements, 

according to the nature of the matter.

In addition, two other commissions are charged with the verification of the accounts of the irrigation and drainage works to which 

the Government has granted an interest guaranty. A special commission decides on requests for subsidies to communal works for 

supplying drinking water, of which we shall speak later.

In conclusion, a decree of March 31, 1905, created in the bureau a 

committee to promote, coordinate, and centralize research on the 

numerous scientific problems relating to the improvement of the soil, 

and notably questions pertaining to the following subjects:

Physical and mechanical properties of the soil and their relation 

to their geologic origin.

Irrigation the composition, action, and use of irrigating water.

Agricultural utilization of the refuse and waste waters of industrial establishments. . Research, selection, and culture of the best botanical species for 

introduction and propagation on irrigated land, poor and uncultivated soils, peat or boggy land, salt lands, and others to be improved.

Meteorology and agricultural physics.

The application of machines and motors in works of agricultural 

improvement and the utilization of electric power in agriculture and 

rural industries.

A second decree of December 26 of the same year, with a view of 

developing the study of hydrology, increased the membership of the 

committee and especially charged it with the study of the relations 

existing between precipitation and surface and underground run-off. 

Included also were the investigation of the various influences
96 PUBLIC UTILITY OP WATEE POWEKS.

affecting stream flow and the best methods of utilizing them for the 

development of power. The programme further embraced the 

examination of various questions relating to the circulation of underground waters and the regularity of springs, with a view to facilitating the utilization of their waters for public supply and laying the 

foundations for new legislation to insure good use of the hydraulic 

wealth contained in the subsoil of the national territory.

The foregoing remarks describe the organization and functions of 

the bureau of hydraulics and agricultural improvements. We shall 

now take up in detail the different functions of the branches of this 

bureau.

THE HYDRAULIC SERVICE.

FUNCTIONS.

The functions of the hydraulic service are manifold and complex, 

by reason of the diversity of government work, whose purpose it is to 

insure the best possible utilization of water in the interest of the 

general public. The Government uses various means to perform its 

mission effectually. It endeavors to encourage individual initiative 

and at the same time to prevent injury to the general public and even 

to the individuals. Where a projected enterprise is clearly for the 

public good, the Government takes the place usually assumed by 

private individuals.

The Government exercises this intervention through the hydraulic 

service, especially in policing, conserving, and controlling waters 

which do not form a part of the public domain.

The policing of the waters includes the removal of obstructions to 

the flow of water in channels by regular dredging and cutting of 

weeds and the regulation of the power and diversion dams to the end 

that floods shall be prevented and that no injury shall be done to the 

public water supplies, public health, and other general interests 

downstream. It also includes measures to prevent damage by pollution of waters by industrial wastes.

The Government intervenes in the adjudication of conflict ing claims 

to water supply for agriculture and other industry, when the interests 

demand it. To insure the proper control and utilization of waters, 

the Government grants subsidies to defray the cost of conservation 

works undertaken by communes or corporate associations. The principal operations subsidized under these conditions are works of irrigation, reservoir and dam construction, drainage, channel rectification, 

bank protection, and the removal of silt deposits. Protection works 

are subventioned, even when the protection is from watercourses 

belonging to the public domain or the sea, whenever the agricultural 

interests involved are of sufficient importance to justify the intervention of the department of agriculture.
WOEK OF FRENCH DEPABTMENT OF AGEICULTTJEE. 97

Finally, projects for municipal water supply constitute a special 

category of subsidized enterprises. Formerly, the subsidies were restricted to rural communes having a population of less than 1,000 

inhabitants. The law of March 31, 1903, however, provided that 

a tax of 1 per cent should be levied on the total amount of money 

wagered at the race tracks, the proceeds to be used to subsidize communal projects to supply drinking water, with the restriction tkat 

this subsidy shall not be granted to cities where the value of the 

"centime" (municipal tax) exceeds 1,000 francs (about $200). The 

amount of the subsidy allowed in the execution of this law is determined 

by a computation based on the fiscal obligations of the commune and 

the per capita expense of the work. All subsidized enterprises must 

be approved by the minister of agriculture, who makes such modifications in the plans submitted to him as he deems necessary to 

insure their effectiveness. The execution of the work is under the 

control of the hydraulic service.

But the Government does not confine itself to subsidizing corporate 

associations. It undertakes, of its own motion, important works or 

those presenting special technical difficulties, and instructs the hydraulic service to take up studies that it considers useful or that 

have been requested by the communes or corporate associations. 

Generally a part of the expense must be borne by the parties interested. The hydraulic service, by suggesting the proper legislative 

measures and by pursuing the necessary studies and researches, 

endeavors to develop every method of utilizing waters likely to prove 

of benefit to the public. Thus it took up the modification of the law 

of June 21, 1865, relating to corporate associations, and the law of 

December 22, 1888, enacted through the efforts of the service, extended the benefits to a number of enterprises not included in the 

first law. The later law also changed the conditions relating to the 

majority necessary to constitute a. corporate association. It facilitated the creation of associations to be organized for the purpose 

of executing works for the improvement of the soil, irrigation, drainage, etc. In effect, the law of 1865 required for the formation of 

these societies the unanimous consent of all the parties interested; 

the law of 1888 permits the majority to overrule the minority, provided the object of the association has been declared a work of public 

utility by the council of state.

In another line of effort, the hydraulic service has endeavored 

to encourage the development of hydro-electric power and its application to agricultural and other industrial purposes. Although nu* 

merous and important factories, run entirely by "white coal," have 

been erected for some years in the mountainous regions, notably 

among the Alps, it is recognized that measures must be taken to 

encourage their further installation. To this end on January 15,

23321 No. 238 10 7
98 PUBLIC UTILITY OF WATER POWERS.

1904, the minister of agriculture laid before the Chamber of Deputies 

a bill relating to power plants on nonnavigable streams. This 

measure was designed to facilitate the control of these watercourses, 

and also the utilization of their latent energy, while respecting the 

rights of riparian proprietors and the interests of irrigators.

A force has been organized to prepare an inventory of the unutilized resources of the watercourses in the Alps and the Pyrenees, and to 

seek methods of exploiting them. This hydrologic study is to be 

generalized and extended to the rest of the territory in order to 

amplify and improve previous studies of the volume and regularity 

of nonnavigable streams. Investigation will be made of the extent 

and 'regularity of subterranean waters and the flow of springs fed 

by them. These researches, which are important because of the 

daily increasing use of such waters for domestic supply, will form 

the basis of new legislation relative thereto.

The following review gives some idea of the principal work done 

by the hydraulic service and fittingly complements the preceding 

statement of its functions.

i

NOXIOUS WATERS. 

DRAINAGE AND SOIL IMPROVEMENT.

Works of this nature are designed to improve the public health 

and to substitute cultivated fields for areas covered with water. 

These fields are usually very fertile, especially when irrigated. Works 

of this kind are usually constructed by the coiicessionnaires or by 

corporate associations, but many operations of considerable importance have been undertaken or are now projected by the Government.

Among the drainage works undertaken within the past thirty years 

may be cited the draining of the Fos marshes (Bouches-du-Rhone), 

and among the projects soon to be undertaken the draining of the 

pool of Arnel (Herault).

Among the principal enterprises for soil improvement fully executed or terminated since 1870 must be mentioned the moors of 

Gascony (Gironde et Landes), covering an area of 800,000 hectares 

(3,088 square miles); the Sologne (Loiret, Loir-et-Cher, Cher) extending over 500,000 hectares (1,9E0 square miles) ; the Dombes 

(Ain), 112,700 hectares (435 square mite); and the Double (Dordogne), 50,000 hectares (193 square miles). Works for the improvement of the plain of Forez (Loire), which has an area of 60,000 hectares (232 square miles), are now in course of construction. This 

enterprise includes the building of an irrigation canal, which will 

enhance the value of the. reclaimed lands.

The Government has contributed largely to defraying the cost of 

all these enterprises. The work has remarkably ameliorated the
WORK OF FRENCH DEPARTMENT OF AGRICULTURE. 99

conditions of human life in these regions and has at the same time 

greatly increased the territorial wealth of the country. Take, for 

example, the moors of Gascony; the average price of the land per 

hectare has risen from 65 to 270 francs ($13 to $54); the average 

length of life, formerly 34 years and 9 months, is now 39 years, a 

higher average than that for the whole country. The pines of Landes, 

which cover immense tracts of improved lands, have added to the 

wealth of the country by the commerce in timber, resin, etc., to which 

they give rise. The general well-being is increased and there has 

been a notable growth in the public revenues.

In Sologne the moors, which were formerly uncultivated, are today covered with woods over an area of more than 250,000 hectares 

(965 square miles). Since the beginning of the works the population of Sologne has increased 20 per cent, while that of neighboring 

regions has grown only 10 per cent. In the Doinbes country, formerly the most unhealthful region in France, the work of improvement has resulted in diminishing the fever cases by five-sixths. Similar results have been obtained on the plain of Forez, where, thanks to 

irrigation, land values have increased enormously.

There is one enterprise now projected and soon to be begun, if 

Parliament grants the necessary funds, with which, so far as the 

results to be obtained are concerned, only the improvement of Landes 

can be compared that is, the drainage of the east coast of Corsica. 

This is a vast project, which includes the filling up and' drainage of 

insalubrious marshes and pools and the improvement of the mouths 

of rivers. This work is to be completed by the construction of a 

system of canals for the conveyance of good drinking water, so indispensable to the health of the communes interested. When the work 

is completed we may expect a transformation of a region now 

devastated by malaria extending over more than 100,000 hectares 

(386 square miles).

CLEANSING AND STRAIGHTENING WATERCOURSES.

These operations, which are necessary to insure the free flow of 

waters and which have considerable influence on the salubrity of 

river lands, are particularly delicate and require the constant attention of the hydraulic service. The importance of the work accomplished is demonstrated by the length of the streams annually 

cleaned, which extend over more than 13,000 kilometers (8,080 miles) 

and drain an area of more than 420,000 hectares (1,622 square miles). 

Sometimes it is necessary to complete the work of cleaning and weed 

cutting by straightening and deepening the channel. As an instance 

we may point to the work recently done on the Conie (Eure-et-Loir), 

which covered more than 150 kilometers (93 miles) of the river.
100 PUBLIC UTILITY OF WATER POWEES. 

DAMS AND PROTECTION OF BANKS.

This work, by which lands of great value are preserved and brought 

under cultivation, serves also in certain cases to protect dwellings. 

The work is done by corporate associations, with important subsidies 

from the Government. The most important enterprises of this nature 

have been completed in regions exposed to the ravages of torrents, 

such as the Jura, the Pyrenees, and the Alps.

But it is not only against river waters that we must protect cultivated lands. The sea also commits depredations, and important dike 

work has been undertaken to restrain its incursions. In this connection the repair of the dikes encircling the salt marshes of Guerande 

may be cited. This great enterprise, which has cost not less than 

300,000 francs (about $56,000), will preserve to the salt industry an 

important area, which was menaced by the encroachments of the sea.

USEFUL WATERS. 

IRRIGATION AND SUBMERSION.

The hydraulic service has directed its efforts principally to the 

development of irrigation of lands not bordering on rivers. Such 

lands can be watered only by the construction of irrigation canals. 

These are built either by corporate associations or by associations of 

concessionnaires. The Government subsidizes such enterprises, leaving, however, a large part of the expense to be borne by those 

interested.

Since 1870 eight large irrigation canals have been constructed, with 

a delivering capacity exceeding 1,000 liters per second (35 secondfeet). Twelve more large canals were projected and are now completed or about to be completed.

In addition to canals for watering the land must be mentioned 

those for the submersion of vineyards, constructed in the Department 

of Aude between 1880 and 1890, after the invasion of phylloxera. 

These canals are designed to enable the vine grower to keep his vines 

under water in winter to a depth of 30 or 40 centimeters (0.98 to 1.31 

feet) for a period of forty to sixty days. The canals of Aude serve a 

vineyard area of 11,000 hectares (42.5 square miles), of which 7,225 

hectares (27.9 square miles) have been submerged since the completion of the work. They were built by the Government at a cost of 

more than 5,000,000 francs ($1,000,000) and were first put under the 

charge of the corporate associations interested, but were finally transferred to them entirely on condition of the payment in annual installments of two-thirds of the cost price advanced by the treasury.

The irrigation canals proper are situated in the arid region of the 

southeast. Irrigation alone renders possible truck gardening and
WOEK OF FRENCH DEPARTMENT OP AGRICULTURE. 101

the culture of fruits and flowers, which are shipped as far as Paris. 

Flowers for perfumery are cultivated on a large scale in the Departments of Var and Alpes-Maritimes. The market for aromatic flowers 

in the city of Grasse owes its importance wholly to the proximity of 

the Siagne canal.

Finally, the service will study the question whether it will not be 

profitable to extend irrigation projects in certain regions by pumping 

water to fields not susceptible of irrigation by gravity canals. It is 

possible that, by selling the surplus power thus obtained, water can 

thereby be supplied for agricultural purposes at a price more commensurate with the returns from the land.

INCREASING THE REGULARITY OF STREAM FLOW.

In the Midi, where irrigation is especially well developed, the 

volume of the streams is frequently insufficient in the dry season to 

meet all the requirements of irrigation. Although the quantity of 

water allowed to each irrigator has been reduced to bare necessity, it 

frequently happens that the lack of water brings ruin to agriculture. 

This distressing condition is remedied by the construction of reservoirs in the more elevated parts of the valley in which considerable 

quantities of water are stored up in times of plenty for use when the 

dry season sets in. These works are important for another reason. 

By regulating the volume of the streams, they increase the available 

water power in the streams below.

Among the operations of this kind is included the regulation of 

the volume of the streams flowing from the plateau of Lannemezan 

(upper Pyrenees). This regulation is accomplished by means of a 

canal which draws water from the river Neste. As the Neste was not 

of sufficient volume to assure at all times a sufficient flow in the canal, 

the Government had to supplement its volume artificially. For this 

purpose the lakes of Oredon, Caillaouas, Aumar, and Cap de Long, 

situated in the Pyrenees, have been transformed into reservoirs. 

During the dry season the waters from these lakes are diverted into 

the Neste.

MUNICIPAL WATER SUPPLIES.

As has been said above, under the law of March 31, 1903, a tax of 

1 per cent is levied on the money put up in wagers under certain conditions, and from the sums thus collected subsidies are granted to 

communes who apply for them for the construction of aqueducts for 

drinking water. The applications for subsidies are submitted to the 

special commission mentioned above, which approves them after a 

thorough investigation of the projects by the agents of the hydraulic 

service. This examination covers several entirely distinct subjects.
102 PUBLIC UTILITY OF WATER POWERS.

First, the hydraulic service must ascertain under what conditions and 

with what restrictions the contemplated conveyance can be authorized, in order to determine whether it shall or shall not be subsidized. 

This is indispensable, as by law the rights and interests of all users 

of the waters from which the supply is to be derived must be safeguarded. Also, the engineers of the hydraulic service are required to 

verify every detail of the enterprise; to see whether the plans are 

technically correct and well adapted to accomplish the end in view; 

and, finally, to determine whether the work is planned as economically 

as possible." After these data have been obtained in the field the 

bureau of hydraulics and agricultural improvements submits the projected enterprise to its technical advisers for another examination. If 

advisable, it takes the necessary steps to have the enterprise declared 

of public utility, and finally gives to the commission on subsidies a full 

and clear statement of all the facts.

The subsidies are paid to the communes in installments proportioned to the expense actually incurred, after it has been proved that 

the work has been properly done and that no modifications have been 

made in the plans whereby their value might be impaired. .

After the experience of three years we may safely assert that the 

law of March 31, 1903, has resulted in a considerable increase in communal enterprises for the conveyance of drinking water, and that the 

effect on public health has been most gratifying.

REGULATIONS FOR FACTORIES.

The number of factories annually regulated is large, about 580. 

In recent years this regulation has been particularly important because of the increased number of large factories using much power. 

The operations of these establishments greatly influence the regularity 

of the streams and necessitate the building of very high dams. In 

addition to supervising the conditions affecting the flow of the water 

and the health of the community, the administration, by virtue of 

its police powers, sees to it that the structures are sa strongly built 

that all danger therefrom to dwellers downstream is removed.

THE AGRICULTURAL IMPROVEMENTS SERVICE.

By the terms of article 1 of the decree of April 5, 1903, cited above, 

the principal improvement works which the service has undertaken 

are as follows: (1) Agricultural utilization of waters; (2) drainage 

and improvement of the soil; (3) redistribution and exchange of parcels of lands and farm roads; (4) construction of rural buildings, 

small agricultural industries, and other land improvements.

0 In addition to their duty as supervisors, the engineers of the service are at the command of the communes to prepare, ou request as communal engineers, all plans for the 

installation of domestic water supply.
WORK OF FRENCH DEPARTMENT OF AGRICULTURE. 103

AGRICULTURAL UTILIZATION OF WATERS.

At present most farmers confine their efforts to constructing canals, 

ditches, etc., and do not interest themselves sufficiently in the 

rational management of the surfaces irrigated or in the distribution of water in conformity with seasons and crops. They 

do not introduce sufficient system into their irrigation work. As 

each farmer irrigates at will his own parcel of land, sometimes uselessly and often at cross purposes with his neighbor, they frequently 

obtain poor results, entirely disproportionate to the expense incurred, and waste, to their own and to others' injury, the water at 

their disposal. In order to avert such misuse, the agricultural improvements service acts as guide to the farmers. It prepares the 

plans for the proprietors or syndicates, and in this way completes 

the work of the hydraulic service. This aid is given not only 

to cultivators desiring to utilize the waters supplied by the large 

irrigation canals, but also to those who wish to make direct use of the 

small streams. Some idea of the importance of this work may be 

realized if we note that after deducting from the water in our rivers 

the amount necessary for food and domestic purposes, sufficient 

volume remains to irrigate 12,000,000 hectares (46,320 square miles), 

putting the irrigation at 15,000 cubic meters per hectare (4.92 acrefeet per acre) a year, the generally accepted average. In this connection it may be remarked that the little streams which the farmers,can 

use directly are of considerable importance. Those having an average length of 2 to 5 kilometers and a basin of not more than 2,000 

hectares (7.7 square miles) represent about 85 per cent of the watercourses of our country.

DRAINAGE AND IMPROVEMENT OF THE SOIL.

The theory and practice of drainage have made important progress 

in recent years, and the methods of subterranean drainage, invented 

about the middle of the last century, have also been much improved. 

The art of the drainer at first covered a few practical rules, but it 

has gradually developed until now we have a fairly complete system 

which enables us to substitute rational processes for old empirical 

methods. These processes have become more definite and economical 

and insure constructions of almost limitless duration. Under these 

conditions it is evident that drainage to-day constitutes a special art, 

possessing its own peculiar technique and requiring deep study and 

preliminary apprenticeship. The study of such projects, as well as 

the supervision and direction of the works, has been intrusted to the 

agricultural improvements service.

Special privileges relating to the flow of waters were granted to 

drainage enterprises by the law of June 10, 1854. Another law of
104 PUBLIC UTILITY OF WATER POWERS.

July 17, 1856, brought in by the Government, appropriated the sum 

of 100,000,000 francs ($20,000,000) for loans to drainage works. By 

the terms of an agreement concluded April 28, 1858, between the 

minister of finance and the minister of agriculture and Credit 

Foncier, the latter assumed the burden of these loans. The loans, 

bearing 4 per cent interest, are payable in twenty-five annual installments of 6.41 per cent of the sum, the borrower having the right to 

pay back the whole or a part at any 'time during that period. The 

payment of these installments is secured in the same manner as are the 

direct taxes. To cover these loans the Credit Foncier has a lien on the 

crops and the right to take a mortgage on the drained lands. Ordinarily the Credit Foncier contents itself with a mortgage without 

having recourse to the formalities necessary to insure its rights.

This legislation in favor of drainage enterprises is justified by the 

importance to agriculture of this form of land improvement. According to a report made in the name of the superior commission on 

the control of waters, organized in 1879 in the ministry of public 

works by M. de Freycinet, there were in France not less than 

4,000,000 hectares (15,440 square miles), which could be drained to 

advantage. The area was probably even larger, as a statement contained in the law of April 17, 1856, estimates it at not less than 

9,000,000 hectares (34,740 square miles).

BEDISTBIBITTION FABM BOADS BEMAKING THE CADASTEB.

The agricultural disadvantages resulting from the parceling out of 

the land into small units caused the Government to take up the question 

of redistribution. The minister of agriculture summarized the advantages which would result from combining these small parcels, as 

follows: Economic employment of improved implements, impossible 

of use on separate small units of land; easy supervision of cultural 

operations; easy access to roads; independence of neighbors in the 

distribution of crops; facility of transportation; easy determination 

of boundaries; simplification of the ground plots of property; reduction of the cost of cultivation; possibility of cooperation in drainage, 

irrigation, dams, and straightening watercourses; repair of roads, etc.

Free exchange was facilitated by the law of November 3, 1884, 

which in certain cases reduces the proportional dues from 6.7 francs 

to 0.20 franc per hundred ($1.34 to 4 cents). But these isolated 

exchanges are by no means so important as a general rearrangement 

of boundaries, which can be accomplished only by the corporate 

associations, established in conformity with the laws of June 21, 

1865, and December 22, 1888. It is to be hoped that the passage of 

the law of March 17, 1898, which was completed by the decree of 

June 9, 1898, and of the fiscal law of April 13, 1900, articles 19 to 21,
WORK OP FREHCH DEPARTMENT OF AGRICULTURE. 105

designed to hasten the revision of the cadaster, will enable us so to 

profit by this operation that the improvements hitherto described 

may be made at very little expense. Certain modifications must be 

made in existing laws to secure full benefit from the measures already 

passed by Parliament. The organization of the agricultural improvements service in the ministry of agriculture is a long step toward this 

accomplishment. The work is further aided by the agreement of 

1904 with the office of direct taxes, through which the cadastral 

service and the agricultural improvements service can cooperate in 

the necessary operations.

From now on the agricultural improvements service will engage in 

systematic construction of farm roads, which will not diminish the 

land parcels, but will minimize the disastrous consequences of the 

parcel system. These roads can be built at a moderate cost, and the 

work entailed can be put under the control of free or commissioned 

corporate associations. The advantages that would accrue are as follows : They will supply outlets for the land parcels, thus giving right 

of way to both the principal and the dependent properties, and by 

so doing removing a pregnant cause of vexations and lawsuits. 

They will open to cultivation closed-in lands, which have been left 

uncultivated because of the impossibility of cultivating at the desired 

period. Finally, they will enable the intelligent farmer to cultivate 

when and as he wishes and give him freedom in the distribution of 

his crops.

BUBAL BUILDINGS.

The construction of farm buildings and the erection and management of industrial establishments as an adjunct to the farm necessitate an ever-increasing fund of special knowledge which is rarely 

possessed by any one person. In fact, the people usually engaged 

in putting up farm buildings are not progressive, either in France or 

elsewhere, and are not in touch with the improvements in agricultural industries and industrial equipment. At this time, when new 

methods of culture and economic necessities often render imperative 

a complete change of agricultural equipment, the small farmers find 

the agricultural improvements service an invaluable aid. They can 

call in the aid of this service whenever they want to utilize the 

power of a waterfall for the generation of electric power, and apply 

the energy to numerous agricultural uses, such as the lighting of 

farm buildings and the operation of various agricultural apparatus, 

such as thrashing machines, crushers, grinders, churns, saws, etc.

This use of electricity in many cases transforms farm operations 

and facilitates the development of small rural industries.

The service also renders very important aid in the construction of 

cooperative buildings. The small farmers, who by force of circum-
106 PUBLIC UTILITY OP WATER POWERS.

stances are compelled to resort more and more to cooperation in 

farming operations, need establishments of a truly industrial character. Very often when a question arises concerning the erection 

of a building and its interior arrangement they lack the knowledge 

to estimate the expense involved and the profits to be derived and 

to make the necessary plans. They can call on the service, however, 

to study and prepare the plans, and thus they receive the moral and 

material support they need. These projects relate to dairies, cheese 

dairies, distilleries, caves, cellars, granaries, refrigerating plants for

farm products, and all other cooperative establishments.

IMPEOVEMENT OF POOE OE UNCULTIVATED LAND.

Waste lands, moors, pasture commons, heaths, marshes, bogs, etc., 

cover a considerable area in France, amounting, according to the 

agricultural statistics of 1892, to 6,226,185 hectares, or 11.77 per cent 

of the total area and 12.336 per cent of the agricultural land. 

Forestation is the only possible method of utilizing a large part of 

this area, especially the rocky soil and mountain lands. Other lands, 

on the contrary, such as moors, heaths, marshes, etc., can be made 

valuable by drainage, clearing, breaking up, etc., and by the building 

of roads to permit transportation of the necessary fertilizers and 

other important adjuncts to agriculture.

We may mention, in the category of lands capable of agricultural 

utilization, peat soils proper, to which must be added a large number 

of more or less peaty pockets formed by vegetation whose decomposition is not sufficiently advanced to form real peat. Such deposits are 

found everywhere, especially in the granitic soils of the Vosges, JVlorvan, the central plateau, Brittany, etc. These lands, if given the 

proper drainage and cultivation, would in many localities give large 

returns.

There are difficulties in the improvement of another kind of soil, 

the salt marshes. The agricultural improvements service has several 

times had to take up the very complex problem of bringing Camargue 

under cultivation, this island in certain places requiring methodical 

desalting in addition to improvement by drainage.

MISCELLANEOUS IMPEOVEMENTS.

In addition to the works enumerated above, we must mention 

among the subjects engaging the attention of the agricultural improvements service the agricultural utilization of refuse and residuary 

waters from industrial establishments, the water supply'of farms 

and rural exploitations, the construction of cables for facilitating or 

rendering possible the exploitation of land difficult of access, etc.
WORK OF FKENCH DEPAETMENT OP AGRlCtJLTURE. 107 

METEOROLOGY.

The bureau of hydraulics and agricultural improvements has under 

its charge all functions pertaining to agricultural meteorology. It 

subsidizes various meteorologic stations and interests itself particularly in the use of ordnance as a protection against hail, which is 

becoming a general practice throughout France. It grants subsidies 

to associations organized for protection against hail, frost, and other 

inclemencies of weather injurious to crops.

In spite of the increasing confidence of the rural population in the 

efficiency of ordnance as a protection against hail, the effectiveness of 

this method has not yet been fully established. Very diverse engines 

are used for this purpose, namely, cannon, rockets, bombs, petards, 

and many others, all of which have their partisans. The committee 

of the bureau of hydraulics and agricultural improvements is studying the subject scientifically and making experiments to determine 

the value of this method of defense and the relative value of the 

various engines used.
CHAPTER VI. 

WATER-POWER LEGISLATION IN THE UNITED STATES.

By M. O. LEIGHTON.

FEDERAL STATUTES AND POWERS.

EFFECT OF THE DESERT-LAND ACT.

The authority of the Federal Government over waters within the 

United States is of two kinds by right of sovereignty and by right 

of proprietorship. The sovereignty is generally believed to be limited, except in the Territories, to the right to use designated streams 

and watercourses for purposes of commerce. Such limited sovereignty was given to the United States by the eighth section of Article 

I of the Constitution. All things necessary to the maintenance and 

improvement of navigation of these waters are subject to the absolute control of the Federal Government, but with this the sovereignty apparently ceases. This point is, however, .not well settled. 

There is considerable disagreement as to the limitation that may be 

placed upon the scope of the commerce clause. It is contended by a 

few that the authority is confined to the local adjustment and control 

of navigable channels, while others hold that the control extends to 

the uttermost tributaries in a drainage area, if such control is necessary to the regulation of the channels actually used for transportation. The latter appears to be the view of the Supreme Court of the 

United States. (United States v. Rio Grande Irrigation Co., 174 

U. S., pp. 690-710.)

The authority of the Federal Government over waters by right of 

proprietorship persists only where the Government is an actual proprietor of land bordering watercourses, as in the public-land States of 

the West. It is commonly believed that in such cases the Federal 

Government is subject, in common with all other proprietors, to state 

water laws. The waters of the public domain belonged originally to 

the Federal Government, but the usufruct thereof was conveyed by 

statute 'from time to time as the land was settled and sovereign 

States were organized. The rights of appropriation and use of the 

waters of the public-land States was conveyed,to the people by an act 

of Congress entitled "An act to provide for the sale of desert lands in 

108
WATER-POWER LEGISLATION IN UNITED STATES. 109

certain States and Territories," approved March 3, 1877 (Stat. L., 

vol. 19, p. 377). The part of the act referred to is as follows:

Provided, however, That the right to the use of water by the person so conducting the same on or to any tract of desert land of 640 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 land 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.

The effect of this law is set forth in an opinion of the supreme court 

of the State of Oregon, as follows :

Annie C. Hougli et al. v. >S'. A. D. Porter et al.

Opinion by Mr. Commissioner King.

The principal contention of appellants as first urged was that the court acted 

witMout jurisdiction in directing that all persons interested in the lands bordering'-on Silver Creek, its tributaries and channels, be made parties to the suit, 

an<J that such action on the part of the court constituted reversible error. Thgse 

questions of practice, with matters incidental thereto, were determined Sdversely to counsel's contention (95 Pac., 732), and the cause was set down jcor 

further argument on the main points involved, principal among which is that 

of riparian rights, as affected by the act of Congress of March 3, 1877, known 

as the desert-land act: ?'&., 752. This question and the points formerly determined were fully discussed at the reargument. After a reconsideration of 

the questions of practice presented we find no reason to depart from the conclusions announced in our former opinion.

We come then to a consideration of the desert-land act, as to its effect upon 

the parties hereto owning lands upon the streams involved, the rights of each 

of whom have attached since the passage of the act. This confronts us with 

the legal problem as to whether any are riparian owners; and, if so, to what 

extent and what bearing their claims as such have upon the water rights in 

question.

It has become a matter of history that prior to any laws upon the subject 

the use of water was exercised under a custom permitting any person to go 

upon a stream, or other source of water supply upon the public domain, and 

divert water therefrom wherever and whenever needed, provided the use thereof 

did not interfere with the prior rights of others. In other words, priority in 

the diversion and use determined the rights of all conflicting claimants. This 

procedure was encouraged and acquiesced in by the Government for many 

years throughout the Pacific coast States, until in recognition thereof the act 

of Congress of July 26, 1866 (7 Fed. Stat. Ann., 1090), was adopted, which 

provided:

" 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 * * *"
110 PUBLIC UTILITY OP WATEE POWERS.

This act constituted a recognition of preexisting rights rather than a creation of any new one, and accordingly recognized and assented to appropriation 

of water in contravention to the common-law rule as to continuous flow: Broder 

v. Water Company, 101 IT. S., 274; United States v. Rio Grande Irr. Co., 174 

U. S., 690; Gutierres -i'. Albuquerque Land Co., 188 U. S., 545; Davis v. Chamberlain, 51 Or., (98 Pac., ).

Supplemental to the above act, provision was made by Congress July 9, 1870, 

for incorporating a reservation in favor of such rights in all patents when 

issued, as follows: "All patents granted or preemption or homesteads allowed 

shall be subject to any vested and accrued water rights or rights to ditches 

and reservoirs used in connection with such water rights, * * * : " Rev. 

Stat, 2340. This was followed on March 3, 1877, by what is known as the 

desert-land act, parts of which, in so far as material to this discussion, are:

" That it shall be lawful for any citizen of the United States, or any person 

of requisite age 'who may be entitled to become a citizen, and who has filed 

his declaration to become such,' upon payment of twenty-five cents per acre, 

to file a declaration under oath with the register and receiver of the laud 

district in which any desert land is situated, that he intends to reclaim a tract 

of desert land not exceeding one section, by conducting water upon the same, 

within the period of three years thereafter: Provided, however, That the right 

to the use of water by the person 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 * * *": 19 Stat. (U. S.), 377; 6 Fed. 

Stat. Ann., 393.

The title of the foregoing act reads, "An act to provide for the sale of desert 

lands in certain States and Territories." Being an act of Congress, it is well 

known that it is not required that the title of the act embrace all its provisions. 

And, while a different rule prevails in some of the States, it is probably an 

exception rather than the rule that acts of Congress are limited to matters 

contained in their title. This being the rule which prevailed in Congress, we 

have only to look to the body of the act to ascertain its intention. After providing for the reclamation of arid lands and for the procuring of title thereunder, it will be observed that, in this act, as essential to the reclamation of 

lands, the water right, when located by the persons taking the land, shall depend upon bona fide prior a/ppr&priation. The reason for this is apparent; the 

object and purpose of the act was by this method to reclaim, develop, and make 

productive arid lands or those of a desert character, which, as a rule, were nonriparian.

Eor many years it was an open question whether lands through which streams 

flowed in the natural channels were subject to reclamation under this act: Sims 

v. Phalen, 11 L. D., 206. But it was finally determined that such lands could 

be reclaimed where clearly shown to be of a desert character: Houck v. Bettelyoun, 7 L. D., 425; Nilson v. Auderson, 23 L. D., 139. Considering this feature 

with the then long-existing conditions in reference to the public lands throughout 

the West, the reasons for providing that the water rights should be acquired 

under the doctrine of prior appropriation are obvious.

The first act C1866) refers to priority of possession and local customs, rules, 

regulations, etc., to which rules of construction were soon applied, the outcome
WATEE-POWEE LEGISLATION IN UNITED STATES. Ill

of which depended largely upon whether the decisions were by courts in localities of a strictly arid nature or in the humid States. If in a strictly arid 

section, the doctrine of prior appropriation prevailed; while, if humid, a middle 

ground, or what is called " the modified doctrine of riparian rights," appears to 

have been the one adhered to and deemed the most conducive to the public 

welfare. Near the time of the passage of this act conflicts had arisen from the 

application of the law. as applied to riparian rights, in the arid and semiarid 

West. In California the effect thereof on riparian rights was involved in much 

doubt and not fully determined, while in Nevada the noted case of Vansickle v. 

Haines (7 Nev., 249) had been decided, adhering to the common-law rule on 

the subject. This latter case, however, was subsequently overruled, since which 

time the doctrine of prior Appropriation has there prevailed: Jones v. Adams, 

19 Nev., 78; Reno S. Works v. Stevenson, 20 Nev., 269; Walsji v. Wallace, 26 

Nev., 299.

The act of 1866 had left somewhat in doubt not only the question of its effect 

upon riparian rights, but an uncertainty whether it thereby intended to establish a permanent rule upon the subject. And the act of 1870, requiring reservations in all patents issued, by inserting a statement therein to the effect that 

the patents were executed subject to vested and accrued water rights, etc., was 

evidently intended as a precautionary measure to remove doubts then extant 

as to the legal effect of any patents subsequently issued, so far as applicable 

to any rights acquired before the date thereof.

In order, therefore, to remove such doubts and to establish a uniform rule 

throughout the States mentioned in the act, whereby all appropriations made 

from streams flowing through public lands over which Congress had power 

to legislate, after the provisions specifying the manner in which lands taken 

under the act could be reclaimed, there was added the clause:

"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:" 19 Stat. (U. S.), 377.

This reservation of water rights for the benefit of the public was clearly 

not essential to any of the other provisions of the act. The previous statement contained sufficient to define and protect the rights of those selecting 

lands under the desert-land act, but the added proviso, or something of similar 

import, was essential to the establishment of a clear and uniform rule upon 

the subject as regards all appropriations thereafter to be made from streams 

or other bodies of water upon the public lands and to which such might be 

riparian.

The words " shall remain and be held free for the appropriation and use of 

the public for irrigation," etc., are clearly words of reservation and dedication, 

and obviously so intended. It is insisted, however, that the language quoted 

is insufficient for either a grant, trust, of dedication; that a grant presupposes 

a grantee capable of receiving it; that it is not a trust because all three essentials necessary to constitute a trust, i. e., trustee, trust res, and cestui que 

trust, are wanting; that it can not be held to be a dedication, in that the right 

there alluded to is not an easement but is usufructuary only, partaking of 

the nature of real estate an incorporeal hereditament, analogous to a " profit " 

in land, in that it depletes the riparian right. It is further observed that a 

dedication is not a grant and can not arise by grant, since it exists in favor of 

the entire public, in respect to which it was asserted, as abov£ Stftfei, that it 

can not become a grantee,
112 PUBLIC UTILITY OF WATER POWERS. '

A dedication is defined as being in the nature of a gift, inuring to the benefit 

of the public as a grant, but differing from a grant in that no grantee in esse 

is necessary to its validity: 9 Ani. and Eng. Ency. Law, 21; 13 Cyc., 439. It 

consists of devotion or giving of property for some proper object and in such 

a manner as to conclude the owner: State ex rel. Sims v. Otoe County, 6 Nebr., 

129, 133; Patrick v. Y. M. C. A., 120 Mien., 185, 193.

A " reservation" as here used is something taken from the whole thing, 

covered by the general terms making the grant, and cuts down and lessens it 

(or act, under which title to the res from which the reservation may be made) 

from what it would be except for such reservation: Words and Phrases, p. 

6140; Weynand v, Lutz (Tex. Civ. App.), 29 S. W., 1097. The latter term 

applied here; the National Government by its various laws relating to public 

lands granted to its citizens the privilege of acquiring title thereto. Construing all together as one act, the desert-land act by the language used appears to 

reserve therefrom to the entire public the right of any citizen after March 

3, 1877, to divert, use, and acquire a right in and to the unappropriated waters 

flowing through, or adjacent to, any lands, thereafter patented, such right to 

be determined by priority. Reservations of this class may be found in Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 27 Col., 1 (59 Pac., 607, 615; 50 

L. R. A., 209; 83 Am. St. Rep., 17) ; Wilcox v. McConnel, 13 Peters, 496; Wilson 

v. Higbee, 62 Fed., 723. It would not be seriously questioned that such a 

reservation might be expressly and effectively made in a deed or other evidence 

of title. Then when we take into consideration that to determine the extent 

of the title received through a conveyance of any kind from the Government, 

whether by grant, patent, or otherwise, we must look into all acts in force in 

reference to the lands intended thus to be conveyed, to ascertain what interest 

remains subject to transfer, it becomes manifest that there is no difference in 

principle between a reservation resulting from an act in force at the time and 

an express reservation in the instrument itself through which title may be 

asserted.

It would seem, however, that as to what may be the proper term by which any 

interest thus reserved may be designated, we need not inquire. Nor is it 

material whether any term has been recognized or established by the courts 

to cover the privileges and rights reserved or surrendered by the Government to 

the public, or individuals of which the public is composed. Our form of government, Constitution, and powers reserved to the Government have necessarily given rise to privileges and rights not fully covered by the common law 

or by the terms in common use under it.

The right of the Government to dispose of its public lands and to deal with 

all rights incident thereto, in such a manner as it may deem best, has long 

been fully established and recognized by all decisions upon the subject. True, 

it can not by legislation determine for any State after its admission what 

the local laws relative to riparian rights shall be (United States v. Rio Grande 

Irr. Co., 174 U. S., 690, 703), but the General Government in dealing with its 

public lands may provide for their transfer as might any other landed proprietor and make such reservations therefrom by grant, dedication, or otherwise as it may see fit. Riparian rights may become the subject of a grant or 

dedication and may be severed from the soil: Coquille Mill and M. Co. v. 

Johnson (Or.), 98 Pac., 132. This principle is clearly and concisely stated in 

an opinion by Knoeles, district judge, in Howell v. Johnson (89 Fed., 556, 558), 

as follows:

" Being the owner of these (public) lands, it has the power to sell or dispose 

of any estate therein or any part thereof. The water (in question) is an innavigable stream flowing over the public domain, is a part thereof, and the
WATER-POWER LEGISLATION IN UNITED STATES. 113

National Government c;ai sell or grant the same, or the use thereof, separate 

from the rest of the estate, under such conditions as may seem to it proper."

Decisions to the above effect are too numerous and too well understood to 

need extensive citation.

By the homestead and other land acts Congress granted to citizens of various 

States and Territories the right %t any time hereafter to enter upon the public 

domain and to select a quantity of land, in the manner there specified, and of 

thereby securing a home, notwithstanding no certain individual was designated 

to accept and receive such title. The effect of these acts was that the grantor 

of the public lands, the National Government, was to hold these lands in trust 

for the public, to be acquired by any qualified citizen thereof on compliance 

with the rules prescribed. Numerous grants in prtesenti were also made, to be 

held in trust by States designated in such grants for any company, person, or 

persons who might construct any wagon or other roads there indicated. 'For 

example: A grant was made to the State of Oregon of alternate sections of 

public lands, designated by odd numbers, three sections per mile, to be selected 

within 6 miles of what was, at the time of the passage of the act, an imaginary 

road between two given points within the State, upon the doing of certain acts 

thereafter to be performed, thus reserving to the builders, if any there might be, 

the right to select the odd section desired: 14 Stat. (IT. S.), p. 89, c. 174; Cahn 

v. Barnes, 5 Fed., 326; United States v. Dalles Military B. Co. (and seven 

others), 140 U. S., 599; s. c. 42 Fed., 351; 55 Fed., 711. Such a road in time 

became a certainty; and more than thirty years after the passage of the act 

lands were selected, in reference to which it has been held that upon selection 

thereof the right thereto relates back to the date of filing the map of definite 

location of the road, shutting out all intervening claims and settlements, regardless of patents issued to settlers thereon during the meantime and this, too, 

notwithstanding such policy was instrumental in holding in abeyance and withdrawing from settlement large tracts of the public domain for more than a 

quarter of a century: Eastern Oregon Land Co. t'. Brosman, 147 Fed., 807. 

Any settlers on such lands are held to have entered thereon with full knowledge 

of the law and to have taken them subject to the " contingent interests " in the 

land of such possible road of such company as might become the beneficiary of 

the grant: Altschul v. Cittings, 102 Fed., 36, 38.

Another and-more apt illustration is that of the policy of the National Government respecting its mineral lands, in regard to which any one acquiring 

title to any part of the public domain under the homestead or under any other 

act takes such land subject to the exception that he does not acquire title to 

the minerals known to be therein at the time of entry or of patent, whether 

located for minerals at the time of the inception of the rights of its grantee or 

not: 5 Fed. Stat. Ann., 2318, 2319; Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 

27 Col., 1. The minerals may remain unclaimed for many decades, yet the first 

mineral locator, whether on patented lands or not (if the land patented was 

known to contain the minerals at the time of entry), upon full compliance with 

the law on the subject, may become the owner thereof. The same privilege is 

extended to the patentee, but, under the law, if he neglect to exercise his rights 

in this respect, he loses to him who becomes the first locator.

It was in the exercise of a similar prerogative on the part of the Government 

that there was by the act of 1877 given to the public, or to any individual 

thereof, the right to appropriate and apply to a beneficial use the waters flowing 

through its public domain. No limit as to the time in which this right may, b& 

exercised is made, except in effect that he who first diverts the water and with 

due diligence applies it to the uses there enumerated is given the better right 

thereto. It can make no difference, therefore, whether it be termed a grant,

23321 No. 238 10 8
114 PUBLIC UTILITY OF WATER POWERS.

reservation, dedication, trust, or other privilege; this unquestioned power of 

the owner over the public domain was exercised, and any one entering upon, 

and acquiring title to, any part of the public domain after the passage of this 

act accepted such land and title thereto with full knowledge of the law under 

which the patent was issued, the import thereof being that this right incident to 

the soil was reserved by the Government to b# held in trust for the public; and 

that he who first applies the water to a beneficial use shall become the owner 

of the right thereto; and that the recipient of such title takes it subject to that 

right, which he, in common with others of the public, is privileged to exercise. 

It is elementary that the grantor can convey no greater title than he has. This 

rule as applied to cases of this nature is clearly and concisely stated in Hume v. 

Rogue River Packing Co. (51 Or.), 92 Pac., 1065, 1067. There the plaintiff was 

owner of a grant from the State, either directly to himself or by mesne conveyances to others, of all the tide lands bordering upon the river, as well as of all 

the uplands adjacent to the river above tide water, the title to which was 

acquired from the United States, and the description of which ran to the 

meander lines. In discussing this feature, this court, by Slater, C., says:

"He has no title by express grant from the State to any part of the bed and 

stream as such, but he does claim title to the entire bed of the stream at the 

mouth of the river where, by reason of the shifting of the channel of the river 

from north to south, and vice versa, and by successive purchases from the State 

as tide land of the uncovered sands on both sides of the river, his deeds overlap, 

and apparently, at least, he is, at that point of the river, the owner of the bed 

of the stream; but this fact, we apprehend, will be of no avail in support of his 

claim of ownership of the water when flowing over such land, for in any event 

he could acquire no greater rights thereby than would be given the ordinary and 

legal effect of such deed by virtue of the statute authorizing its execution and 

delivery."

It is true that the act of 1870 made it necessary to'insert in the patents a 

reservation of all vested and accrued water righs, rights of way, etc., as well 

as to make similar reservations in patents respecting minerals; but, as stated, 

so far as a legal effect of the reservation is concerned, such would have been 

unnecessary, in that the Government could grant no greater right than it had. 

Acts of this nature, like those requiring patents to be issued for lands acquired 

under railroad and other grants, under which title passes by virtue of the 

acts granting the lands, are but supplemental legislation. In this manner the 

evidence of title may more conveniently be placed on records and thereby add 

to the convenience, in many respects, of the holder of the title, but otherwise 

adds nothing thereto: Oahn v. Barnes, 5 Fed., 326, 331; Pengra v. Munz, 29 

Fed., 830, 835; Langdeau v. Hanes, 21 Wall., 521; United States v. Dalles 

Military R. Co., 140 U. S., 599; also cases cited in Rose's Notes (U. S.), vol. 

8, p. 466.

A good illustration of the power of the Government or other landed proprietor, at all times and whenever desired by it, to grant, reserve, or dedicate 

a right to a-ny one at any time to acquire title to all or 'to any part of its 

public domain in such manner as it might designate either to the land itself 

or to the incorporeal rights appurtenant thereto, whether an easement over it, 

the removal of the minerals, of the timber, or of the right to the use of all or 

any of the waters flowing through or adjacent to such land may 1 be found 

in the recent case of United States v. *Winans, 198 U. S., 371. In that case a 

suit was brought to enjoin the owners of certain lands on the Columbia River 

from interfering with the exercise by the Indians on the Yakima Indian Reservation in the State of Washington of fishing rights and privileges over, on, and 

adjacent to lands along the Columbia River, patented to the defendants therein,
WATEE-POWER LEGISLATION IN UNITED STATES. 115

which rights were claimed under the provisions of a treaty made in 1859 

between the Indians and the United States. This treaty reserved to them the 

exclusive right to fish in all streams running on and within certain lands within 

prescribed limits, and to fish in common with the citizens of the territory at 

all accustomed places in the vicinity, and further secured to such Indians the 

right of way over all lands necessary for carrying such reserved rights into 

effect, together with the privilege of erecting on any of the then public lands 

temporary buildings for the curing of fish. Subsequently the lands between the 

Columbia River and the special tract set aside and known as their " reservation " were entered by citizens of that State without reservations therein of 

any kind being issued to them. Grants from the State of Washington to the shore 

land fronting the patented lands were also procured by the patentees, together 

with licenses from the State to maintain devices for taking fish, called fish 

wheels. By virtue of these patents, grants, and right thus acquired by the 

landowners, it was maintained that they could preclude the Indians from 

fishing along the shores and from crossing the patented lands for that purpose, 

in respect to which it was argued that the Indians, under the rights reserved 

to them and recognized by the Government in the treaty, acquired " merely an 

executory license or privilege, applying to no certain and defined places, and 

revocable at will of the United States, to fish, hunt, and build temporary houses 

upon public lands, in common with white citizens, upon whom the law has conferred no title by occupancy whatever." These contentions were sustained by 

the United States circuit court in that State (United States v. Winans, 73 Fed., 

72, 74), Judge Hanford, inter alia, observing:

" The theory that lands conveyed by government patents, after being so 

conveyed and appropriated by individual citizens, still remain subservient to 

use and occupation by the Indians for travel over the same, otherwise than 

by lawfully established public highways and for camping grounds, finds no 

support in the provisions of the treaty, nor in the rules for the construction 

and interpretation of statutes, which must be applied in the interpretation of 

the treaty and of the public-land laws of the United States."

But on appeal to the United States Supreme Court this decision was reversed 

(198 U. S., 381), the court holding in substance that, notwithstanding patents 

were issued to the lands by the Government, the patentees took the same subject to the rights reserved to the Indians thereafter to fish along the shores of 

the Columbia River, including a right to erect temporary structures for that 

purpose, and to retain such easements as would enable the privileges thus 

reserved to be executed. In discussing the effect of the patents the court 

say:

" The reservations were in large areas of territory and the negotiations were 

with the tribe. They reserved rights, however, to every individual Indian, as 

though named therein. They imposed a servitude upon every piece of land 

as though described therein. There was an exclusive right of fishing reserved 

within certain boundaries. There was a right outside of those boundaries 

reserved ' in common with citizens of the territory.' The land department 

could grant no exceptions from its provisions. It makes no difference, therefore, that the patents issued by the department are absolute in form. They 

are subject to the treaty as to the other laws of the land."

It is clear from the foregoing decision (1) that whether the landed proprietor 

be the Government, a tribe of Indians, or other owner, such proprietor may 

reserve or grant a right or interest in, over, and appurtenant to or in any manner connected with its lands, not necessarily to an individual alone, but to a 

class of individuals in general as well as in particular, without limit as to time, 

application, and use of the rights or privileges thus reserved, dedicated, or
116 PUBLIC UTILITY OF WATER POWERS.

granted; (2) and such right or interest in its public lauds becomes effective 

in favor of those for whom it may be reserved or to whom it may be dedicated, and against those subsequently acquiring title thereto, even though such 

rights may not be exercised until after the lauds shall have been patented to 

others; (3) and that in so far as the binding effect thereof is concerned upon 

such subsequent purchaser it is immaterial that such reservations or excep 

tious are not specified in the patents or other instruments of conveyance.

Reservations of this class are fully and ably discussed by the supreme court 

of Kentucky in Rowan's Ex'rs. v. Town of Portland, 8 B. Moiiroe, 232. The 

supreme court of New Hampshire, in the case of State v. Franklin Falls Co., 

49 N. H., 240, 256, declines either to agree with the reasoning of that court or 

to follow the rule there enunciated; but the United States.Supreme Court, in 

Morgan v. Ry. Co., 96 U. S., 716, clearly adopts the reasoning applied by the 

Kentucky court and observes that the consideration there given these questions 

is a full, able, and correct exposition of the law on the subject, with which conclusion we concur. In Rowan's Bx'rs. -v. Ry. Co., supra, the dedication related 

to certain streets adjacent to a stream and included the right of wharfage or 

right to land boats and other vessels along that part of the street bordering upon 

the river. The court, in discussing the legal effect thereof, concludes that the 

grantor holding title subject to the use to which it was dedicated held the title 

thereto in himself as trustee for the public, which his grantee took subject to 

such trust; and further observes:

" Whether the public at large was or could be the immediate grantee or recipient of this right we should consider it fruitless to inquire. The potential 

right of use in and by the public was created by the sale and conveyance of the 

lots. And whether it passed at once to the public, or remained in abeyance, or 

is the mere result of an estoppel, or vested in the purchasers of lots as a part 

of the estate conveyed to them, it was in either case alike perfect and beyond 

the future control of the original proprietor or his alienees of the title on which 

this right of use was engrafted."

Again, as stated in Pearsall v. Post, 20 Wendell, 111, 119:

" It seems to be well settled by the Supreme Court of the United States, by 

several courts in the neighboring States, to which we may, perhaps, add the 

court of chancery in this State, that dedicatons of land for religious and charitable purposes, as well as for public ways and squares, commons, parks, and 

other easements in nature of'ways, are to be upheld, although there be no person 

in esse capable of taking as a grantee at the time. It was remarked by Mr. 

Justice Thompson, in Cincinnati v. White's Lessee, 6 Peters. 429, 436, that ' the 

principle, if well founded in law, must have a general application to all appropriations and dedications for public use, where there is no grantee in esse to 

take the fee. 1 He adds: ' This forms an, exception to the rule applicable to 

private grants and grows out of the necessity of the case.' These remarks comprehend every conceivable case where a man has furnished evidence of a clear 

intent to give up his real estate for the purposes of any legitimate public use."

Privileges of this class were not unusual and were recognized as being subject to dedication, in the early history of the law upon the subject, as disclose^ 

by further remarks therein of the same court, namely: * 

" I pass over the more usual instances of easements, such as ways, commons, 

and water privileges, etc., enjoyed either by individuals, towns, or other corporations. * * * We may also pass over those which are less common, and 

 one put by Mr. Justice T/hompson, in 6 Peters, 437, from McConnell v. Lexington, 12 Wheat., 582, the reservation of a spring of water for public use. It was 

made to a corporation which might turn the spring to its own or public purposes. Thus, the user was invoked to establish an individual right. A like
WATER-POWEB LEGISLATION 1ST UNITED STATES. 117

case is mentioned in Co. Litt., 56 a, a customary watering place in the Inhabitants of Southwarke, for violating which an action was held to lie."

In the spring case alluded to it appears that the Commonwealth of Virginia 

in 1773, by an act known,as the land law, reserved 640 acres of land, upon 

which the spring was situated, for the benefit of those who had settled in a 

village or city, afterwards to be laid out into lots and divided among such settlers. The spring was in common use by the inhabitants of a village located on 

this tract and [was] afterwards claimed by one of the purported grantees of the 

lot upon which it was situated. The court, however, in an opinion by Mr. Chief 

. Justice Marshall, held that the use of the spring by the public and the recognition thereof for a long period df time constituted such a dedication; and that 

even though the claimant thereof be considered the grantee of the land upon 

which the spring was situated, its use for the purposes mentioned, although, no 

reservation was made in the deed, must be deemed to have been reserved. It 

may be said that in that case the entire public exercised the right to the use 

of the spring thus dedicated, but it must be remembered that the exercise of 

this right was merely by the individuals constituting»the public. In the case at 

bar the public exercises the right in a somewhat similar manner, except on a 

larger and more extensive scale, in that an appropriation by any individual or 

corporation gives it a right in and to the flow and use of the water appropriated for the purposes for which it is diverted, which right may afterwards be 

subject to sale and transfer. But it is clear that if a dedication can be made 

to the public of a spring or a stream in the manner indicated in the last case 

quoted, the owner of any source of water supply may make a like dedication 

in that or in any other manner determined upon. The manner of making the 

dedication, as well as its legal effect, must be determined from the act or instrument by which it is made. In the case under consideration it will be observed that the language used is that the surplus waters-of the streams and of 

other sources of water supply designated shall remain and ~be held free for the 

appropriation and use of the public for (1) irrigation, (2) mining, and (3) 

manufacturing purposes. The manner of appropriating and using the water 

for irrigation, manufacturing, and mining purposes was at that time and has 

been at all times since well understood; hence the use by the public and manner 

thereof is specified, meaning, when interpreted in the light of the then existing 

facts, the usual manner of-applying it for power purposes and of diverting it 

by means of ditches and other systems in use for irrigation, including also the 

usual methods in use by miners.

It follows that the rights reserved to the public and dedication of the surplus waters therefor were intended for use in that manner. Construed then 

with the act of 1866 and other provisions of the act of 1877, we are of the 

opinion that all lands settled upon after the date of the latter act were accepted 

with the implied understanding that (except [as] hereinafter stated) the first to 

appropriate and use the water for the purposes specified in the act should have 

the superior right thereto.

So far as we are able to determine, the question as here presented has not 

heretofore been squarely before any of the courts. But, while not deemed 

essential to ati£adjudication therein, we find the act of 1877 considered to some 

extent in the following cases: Williams v. Altnow (51 Or.), 95 Pac., 200; 

Farm Investment Co. v. Carpenter, 9 Wyo., 110; United States v. Conrad In. 

Co., 156 Fed., 123, 128; United States -v. Rio Grande Irr. Co., 174 U. S., 690; 

Gutierres V. Albuquerque Land Co., 188 U. - S., 545; Kansas v. Colorado, 206 

U. S., 46.

 In the first case mentioned, Altnow, who was the proprietor of the land upon 

which Warm Springs Creek had its source, claimed both as a prior appro-
118 PUBLIC UTILITY OF WATER POWERS.

priator and as a riparian owner. To his riparian claim it was maintained as a 

defense that his lands were settled upon after the date of the desert-land act, for 

which reason he was not a riparian proprietor in the sense that as such alleged 

riparian owner he could assert a right in the stream for irrigation; and this 

contention was in that case expressly upheld by the trial court On this point 

Mr. Chief Justice Bean observes that Altnow's claim as riparian proprietor 

(all other parties therein being in the same position in this respect) could not 

be upheld for two reasons: (1) That he relied upon his claim as prior appropriator and was bound by it; (2) that the lands having been entered since the 

year 1877, " it is a serious question whether the desert-land act does not 

abolish the so-called modified doctrine of riparian rights, which gives to 

riparian proprietors the right to use water for irrigation as to all lands through 

which nonnavigable streams flow, the title to which has been acquired from the 

Government of the United States since the passage of that act" And after 

quoting from the act, he further remarks:

" The Government of the United States, as the primary owner of the soil, 

undoubtedly has the right to make such provisions concerning the waters of nonnavigable streams thereon as it deems proper, and it is at least a debatable question whether, by the language quoted, Congress did not intend to recognize and 

assent to the appropriation of such waters in contravention to the common-law 

doctrine of riparian rights as to persons subsequently acquiring title from the 

United States. United States v. Rio Grande Irr. Co., 174 U. S., 690."

In Wyoming the doctrine of priority of appropriation for beneficial use in 

contravention to the common-law rule on the subject prevails. By legislative 

enactment of 1886 the water of every natural stream in that State was declared 

to be the property of and dedicated to the use of the public. The manner of 

appropriation and acquirement of such rights are specified, included among 

which priority of appropriation for a beneficial use was declared to give the 

better right It is thus evident that without the provisions of the desert-land 

act the court there held and was bound to adhere to that doctrine. But in 

Farm Investment Co. v. Carpenter, 9 Wyo., 110, Mr. Chief Justice Potter, in 

discussing the question as to whether an express constitutional or statutory 

declaration was necessary in the first instance to render the streams and other 

natural bodies of water the property of the public and subject to the control 

of the laws of the State, without reference to riparia-n rights, says: 

' " If any consent of the General Government was primarily requisite to the 

inception of the rule of -prior appropriation, that consent is to be found in 

several enactments by Congress, beginning with the act of July 26, 1866, and 

including the desert-land act of March 3, 1877. Those acts have been too often 

quoted and are too well understood to require a restatement at this time at 

the expense of unduly extending this opinion."

In New Mexico Territory, where the doctrine of prior appropriation also 

prevails, a similar question to that in the Wyoming case came before the court 

in Gutierres v. Albuquerque Land Co., 188 U. S., 545. The question there involved the validity of a territorial act permitting the, construction of canals 

and condemning rights of way, etc., in reference to which it was urged that 

the territorial act was invalid because it not only assumed to dispose of the 

property of the United States without its consent but was in conflict with the 

legislation of Congress and therefore void. It was there argued that .the 

waters affected by the statute were public and exclusively the property of the 

United States; but the statute alluded to permitted private parties and corporations to acquire the unappropriated waters in violation of the right of the 

Government to control and dispose of its property wherever situated. In con-
WATER-POWER LEGISLATION IN UNITED STATES. 119

sidering this feature, Mr. Justice White, speaking for the court, at page 552 

of the opinion, observes:

"Assuming that the appellants are entitled to urge the objection referred to, 

we think, in view of the legislation of Congress on the subject of the appropriation of water on the public domain, particularly referred to in the opinion of 

this court in United States v. Rio Grande Irrigation Co., 174 U. S., 690, 

704-706, the objection is devoid of merit. * * * By the act of March 3, 

1877, c. 107, 19 Stat., 377, the right to appropriate such an amount of water as 

might be necessarily used for the purpose of irrigation and reclamation of 

desert land, part of the public domain, was granted, and it was 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 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.'"

In United States i>. Rio Grande Irr. Co., the inquiry was as to the navigability 

of the Rio Graude River and to the effect a proposed darn therein would have 

on navigation. While it was there unquestioned that the common-law rule was 

that every riparian owner was entitled to the continual flow of the stream and 

that States and Territories had the power to change this rule and to permit the . 

appropriation of the flowing waters for such purposes as they deemed wise, the 

court states that this power " is limited by the superior power of the General 

Government to secure the uninterrupted navigation of all streams within the 

limits of the United States." It was urged in this connection that the desertland act of 1877 also included therein the right to appropriate the waters of any 

stream, even though the depletion caused thereby should impede navigation. 

In the opinion the desert-land act, together with that of the acts of 1866 and 

1891, are referred to, concerning which the court, by Mr. Justice Brewer, at page 

706, comments as follows:

"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 navigability 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."

These appear to be the only cases in which the attention of the court has been 

called to this act, the plain inference from which is that in the opinion of the 

eminent jurists quoted, the act of March 3, 1877, was such a reservation by the 

National Government to and for the public and such dedication thereto of all 

its rights in and to all the waters flowing through its public lands for irrigation, manufacturing, and mining purposes, as to abrogate the modified commonlaw rules upon the subject, in so far as applicable to all lands entered after 

that date.
120 PUBLIC UTILITY OF WATER POWERS.

But the effect of the language of the act that " there shall remain and be 

held free for the appropriation and use of the public for irrigation," 'etc., we 

think, while constituting words of reservation and dedication, limits the rights 

thereunder to the deprivation of the riparian lands of the water, only, in so 

far as it may be claimed by the riparians for the purposes there enumerated. 

One of the rights'inseparable from the land has always been that the owner 

of such land was entitled to an adequate supply of water flowing over it for 

domestic use, together with sufficient for the domestic animals necessary for the 

proper subsistence and maintenance of the landed proprietor and his family. 

This necessary use, no doubt, gave rise to the doctrine of riparian rights in 

the earliest development of the law upon the subject, followed by requirements for navigation, next extended to include the right to its use for 

power purposes, and later to the production of such garden and grains as 

were essential to the subsistence of the family of such riparian owner. At 

first the right of all riparians was evidently restricted to the demands upon 

the stream for the first purposes named. Lastly, as civilization progressed 

and extended over the semiarid sections throughout the different nations, the 

riparian demands accordingly became more extensive and enlarged to include irrigation, but limited at first, uo doubt, to the watering of such garden 

and other produce reasonably necessary for the riparians' domestic consumption, and as the strictly arid localities became populated, by reason of the 

correspondingly increased commercial, agricultural, and mining development, 

this right was finally extended to include the irrigation, not only for the limited purposes mentioned, but to the watering of large areas in the production 

of grains and other agricultural products, together with its expansion thereof 

to include all its present uses.

The language used in this act was clearly intended to change the rule respecting the right of riparians to the use of water for irrigation, mining, and 

power purposes; but as in the last case cited it has its limits. It does not go 

so far as to affect the rights originally giving rise to the doctrine of riparian 

rights, that is, for domestic use, including the watering of domestic animals 

and such stock as may be essential to the sus'tenance of the owners of lands 

adjacent.to the streams or other bodies of*water. And as held in the last case 

cited, although abrogating the common-law rule on the subject, the act was not 

intended to permit appropriators to deplete .the flow to such an extent as 

materially to impair the navigation of the rivers to which such streams directly or indirectly may be tributaries. The reason for this is plain; to permit an interference with navigation would be to deprive the entire public of 

a valuable right which at all times has been recognized as paramount to that 

of the individual desiring such interference; while to permit an appropriation of water depriving the owner of the land through which it may flow of 

its use for irrigation affects such person only. So far as the Government may 

be concerned by the depletion of a particular tract of land of such benefit, -if 

any, it is recouped by the reclamation of a like tract for which the diversion 

causing the injury may be made.

However, it can not be presumed that it was the intention of Congress to 

render the soil absolutely worthless by drying the lands by diversion of the 

waters flowing through them to nonriparian lands as to leave the soil without 

the water essential to the owner's domestic needs. Presumably the best possible results for all concerned were intended, which it is clear "could best be 

obtained by permitting the settler to retain the quantity of water essential to 

the sustenance of his family and to other natural wants incident thereto, but if 

he does not see proper to apply it to any of the uses specified in the act, then 

to permit the first home builder on other lands to make such use of it as .will
WATER-POWER LEGISLATION IN UNITED STATES. 121

bring into cultivation the lands not adjacent to the streams, thereby protecting 

the settlers upon both classes of lauds, and at the same time not only encourage 

home building but enable the Government to dispose of more of its lands, and 

to enhance its revenues proportionately.

It often happens that an owner of land in arid districts does not want to 

farm them, but merely wants a home where he may raise stock or engage in 

other pursuits, requiring only sufficient water supply to meet the natural wants 

incident thereto, and for which no artificial diversion or application of the 

stream may become necessary. It will'not, therefore', necessarily be presumed 

that such settler intends to irrigate his lands or that he will ever demand the 

water for such purposes, for which reason Congress evidently intended by the 

language used in the act of 1877 that if desired for such, purposes some manifestation thereof, by diversion or other sufficient notice, should be given, and if 

not desired for the reclamation of his lands that the owner should not be 

permitted to complain if another shall so apply it.

But, as regards the requirements for domestic use, the settlement, or other 

steps taken looking toward the procurement of title thereto, gives ample notice 

that the water for all necessary domestic uses is and will continue to be demanded as appurtenant to the land entered as much so as would a diversion 

of the water for such purposes; while if intended to be appropriated for mining, 

irrigation, or power purposes, some affirmative action. in that direction is 

essential, and it is but reasonable to require a clear manifestation of an intent 

or notice thereof. This requirement is vital to the initiation of such a right, 

for the same reason that some notice is exacted for the entry of the land itself. 

Congress could reasonably presume that if an appropriation were desired for 

the purpose mentioned in the act, some steps would be taken manifesting such 

intent, and that if the owner is not the first to move in that direction the person making an application thereof to a beneficial use within a reasonable time 

ought to be rewarded for his diligence, and he is entitled to have his rights in 

that respect recognized and protected. For this reason the settler who has 

acquired title to the land through which any stream may flow took it subject 

to the rights of the person who has or who may subsequently make the first 

use of such stream for the purpose enumerated in the act, excepting only as to 

the natural wants and needs of such settler.

Our attention is called to references in our statute to riparian rights (B. and 

C. Comp., 4994, 5000), which, it is argued, recognizes the doctrine of riparian 

rights as being in force in this State, regardless of the act of Congress under 

consideration. It could with equal strength be maintained that sec. 5002 *&.,' 

which provides that " all controversies respecting rights to water under this 

act shall be determined by the dates of the appropriations as respectively made 

by the parties," constitutes a declaration to the effect that the doctrine of prior 

appropriation shall prevail.

The statute does'not attempt to define riparian rights nor to determine the 

extent or effect of the doctrine as applied to irrigation. It has reference only 

to such rights as such riparian owner as the proprietor may have, whatever 

they may be; and the question as to what such rights are, and since 1877 have 

been, is the one under consideration here. Owners of land adjacent to bodies 

of water have riparian rights other than those presented in this controversy: 

See Morton v. O, S. L. Ry. Co., 48 Or., 444; Coquille Mill and M. Co. v. Johnson (Or.), 98 Pac., 154. As hereinbefore held, the act of 1877 only affects riparian rights to lands the title to which has been acquired since that date, and 

then only in so far as a claim to the use of water may be asserted, as riparian 

owner for the* purposes in the act enumerated. And in this connection it will 

be observed that sec. 5000, B. and C. Comp., protects the owner contiguous to
PUBLIC UTILITY OF WATER POWERS.

the stream, as against those claiming under the act of which that section is a 

part, in his right to the flow of the stream to the extent required for household, 

domestic, and other uses incident thereto, with sufficient quantity for irrigation 

purposes to the extent then actually needed and in use. An exception to that 

extent is accordingly made in favor of the landowner, as against, and only 

to the extent of, such rights as may be asserted under the act.

Our attention is called to Sturr v. Beck, 133 TJ. S., 541. That was a controversy between a riparian owner and a subsequent but prior appropriator, 

and was submitted on an-agreed statement of facts. Based upon these stipulations, the trial court made findings, among which was that the defendant's 

first settlement upon his land through which the stream flowed was in March, 

1877, and that he made a homestead filing thereon on the 25th of the same 

month. Those findings were conclusive upon the appellate court. The date 

alluded to does not disclose whether the settlement was prior or subsequent to 

March 3, 1877, the date of the desert-land act.

Owing, therefore, to the uncertainty as to the date of settlement this decision 

can not be held in point. And the further fact that no reference appears as to 

the exact date clearly indicates that either the settlement was made before that 

date, or that the question did not occur to the litigants and was accordingly 

not urged before the court, nor considered by it. But whatever view may be 

taken in this respect, its bearing on the question at hand is practically disregarded, if not overruled, by that court in its declaration on the subject through 

Mr. Justice Brewer, in United States v. Rio Grande Irr. Co., above quoted, as 

well as in the general reference to this act by the same court in an opinion by 

Mr. Justice White in Gutierres v. Albuquerque Land Co., 188 U. S., 545. To the 

extent, therefore, that Sturr i\ Beck may be deemed a precedent, - as regards 

riparian rights, its weight is materially lessened, if indeed the rule as there 

and previously enunciated on the subject is not overruled by that court in the 

recent case of Kansas v, Colorado, 206 U. S., 40. In Sturr v. Beck it was, in 

effect, held that the plaintiff could make no appropriation as against Beck, who 

was a riparian proprietor and who was entitled to the undiminished flow of the 

stream. This claim as to the law was asserted and the same application thereof 

insisted upon in Kansas v. Colorado, in which the citizens of Kansas insisted 

that large quantities of water were being diverted from the Arkansas River by 

the inhabitants of Colorado, a large number of whom were claiming as prior 

appropriators and diverting the water to nonriparian lands, as against Kansas, 

a riparian proprietor. In Kansas the modified doctrine of riparian rights prevailed, 

while in Colorado prior appropriation was and is recognized as the governing 

doctrine. The court refused injunctive relief and dismissed the bill, stating in 

substance that if the riparian doctrine should prevail in Kansas as against 

Colorado and against the nonriparian users whose rights were involved therein, 

Oklahoma and its citizens lower on the Arkansas River might invoke the same 

rule in opposition to both the citizens of Kansas and Colorado, to their great 

injury, which doctrine, it is observed, would be ruinous in its effect. The court, 

in dismissing the bill, indicated that no injunction would lie until a more substantial injury could be shown, and at the same time found that the interference by a large number of the appropriators above in the State of Colorado 

materially depleted the flow to the riparian lands of the plaintiff. This opinion 

was written by Mr. Justice Brewer, who was not a member of the court when 

the case of Sturr v. Beck was argued and submitted, for which reason, although 

a member of the court when the opinion in the latter case was filed, he took no 

part in the decision. The opinion in the Kansas-Colorado case not only brushes 

aside the rule claimed to have been announced in Sturr v. Beck, regarding 

riparian rights, but discloses what, in the opinion of the writer, is a strong and
WATER-POWER LEGISLATION IN UNITED STATES. 123

commendable tendency on the part of that great court to recognize that the 

rigid rules of common law, as interpreted and sought to be applied by those 

insisting upon the " undiminished flow" theory, are inapplicable to the many 

new and intricate questions necessarily arising under our form of government 

and through the arid and semiarid sections. For a specified statement of the 

facts in this case, disclosing many of the defendants to have been using the 

water on nonriparian lands, see the first opinion, which was on demurrer: 

Kansas v. Colorado, 185 U. S., 125.

WATER POWERS ON NAVIGABLE STREAMS.

Under existing laws and interpretations thereof the Federal Government is prevented from exercising full sovereign control over any 

waters except those in the Territories. It will therefore be of interest 

to review the character of national legislation respecting the development of water powers.

It is clear that on navigable streams the unregulated development 

of water power would interfere with navigation. Therefore, while 

the authority of the Federal Government does not extend to the 

regulation of water-power development per se, it must intervene to 

the extent necessary to preserve or to facilitate navigation. Power 

development on these streams must therefore be subject to the dictates 

of the Federal Government in so far as may be necessary to accomplish this purpose. The present national law relative to the development of water powers on navigable streams reads as follows (Rev. 

Stat., chap. 3508, vol. 34, p. 386) :

An act to regulate the construction of dams across navigable waters.

Be U enacted ~by the Senate and House of Representatives of the United 

Mates of America in Congress assembled, That when, hereafter, authority is 

granted by Congress to any persons to construct and maintain a dam for water 

power or other purposes across any of the navigable waters of the United 

States, such dams [sic] shall not be built or commenced until the plans and 

specifications for its construction, together with such drawings of the proposed 

construction and such map of the proposed location as may be required for a 

full understanding of the subject, have been submitted to the Secretary of War 

and Chief of Engineers for their approval, or until they shall have approved 

such plans and specifications and the location of such dam and accessory works; 

and when the plans for any dam to be constructed under the provisions of this 

act have been approved by the Chief of Engineers and by the Secretary of War 

it shall not be lawful to deviate from such plans either before or after completion of the structure unless the modification of such plans has previously been 

submitted to and received the approval of the Chief of Engineers and of the 

Secretary of War: Provided, That in approving said plans and location such 

conditions and stipulations may be imposed as the Chief of Engineers and the 

Secretary of War may deem necessary to protect the present and future interests of the United States, which may include the condition that such persons 

shall construct, maintain, and operate, without expense to the United States, in 

connection with said dam and appurtenant works, a lock or locks, booms, sluices, 

or any other structures which the Secretary of War and the Chief of Engineers 

at any time may deem necessary in the interest of navigation, in accordance
124 PUBLIC UTILITY OF WATE& POWEKS.

with such plans as they may approve, and also that whenever Congress shall 

authorize the construction of a lock, or other structures for navigation purposes, 

in connection with such dam, the person owning such dam shall convey to the 

United States, free of cost, title to such land as may be required for such constructions and approaches, and shall grant to the United States a free use of 

water power for building and operating such constructions.

SEC. 2. That the right is hereby reserved to the United States to construct, 

maintain, and operate, in connection with any darn built under the provisions of this act, a suitable lock or locks, or any other structures for navigation purposes, and at all times to control the said dam and the level of the pool 

caused by said dam to such an extent as may be necessary to provide proper 

facilities for navigation.

SEC. 3. That the person, company, or corporation building, maintaining, or 

operating any dam and appurtenant works, under the provisions of this act, 

shall be Jiable for any damage that may be inflicted thereby upon private prop: 

erty, either by overflow or otherwise. The persons owning or operating any 

such dam shall maintain, at their own expense, such lights and other signals 

thereon and such flshways as the Secretary of Commerce and Labor shall 

prescribe.

SEC. 4. That all rights acquired under this act shall cease and be determined 

if the person, company, or corporation acquiring such rights shall, at any time, 

fail to comply with any of the provisions and requirements of the act, or with 

any of the stipulations and conditions that may be prescribed as aforesaid by 

the Chief-of Engineers and the Secretary of War.

SEC. 5. ^Ehat any persons who shall fail or refuse to comply with the lawful **** 

order of tfe§ Secretary of War and the Chief of Engineers, made in accordance ** 

with the provisions of this act, shall be deemed guilty of a violation of this '*" 

act, and any persons who shall be guilty of a violation of this act shall be deemed ''** 

guilty of a misdemeanor, and on conviction thereof shall be punished by a fine -** 

not exceeding five thousand dollars, and every month such person shall remain * 

in default shall be deemed a new offense and subject such persons to additional 

penalties therefor; and in addition to the penalties above described the Secretary of War and the Chief .of Engineers may, upon refusal of the persons owning or controlling any such dam and accessory works to comply with any lawful order issued by the Secretary of War or Chief of Engineers In regard thereto, 

cause the removal of such dam and accessory works as an obstruction to navigation at the expense of the persons owning or controlling such dam, and 

suit for such expense may be brought in the name of the United States against 

such persons, and recovery had for such expense in any court of competent 

jurisdiction; and the removal of any structures erected or maintained in violation of the provisions of this act or the order or direction of the Secretary of 

War or Chief of Engineers made in pursuance thereof may be enforced by injunction, mandamus, or other summary process, upon application to the circuit 

court in the district in which such structure may, in whole or in part, exist, 

and proper proceedings to this end may be instituted under the direction of the 

Attorney-General of the United States.at the request of the Chief of Engineers 

or the Secretary of War; and in case of any litigation arising from any obstruction or alleged obstruction to navigation created by the construction of 

any dam under this act, the cause or question arising may be tried before the 

circuit court of the United States in any district in which any portion of said 

obstruction or dam touches.

SEC. 6. That whenever Congress shall hereafter by law authorize the construction of any dam across any of the navigable waters of the United States,. 

and no time for the commencement and completion of sucli dam is named in
WATER-POWER LEGISLATION IN UNITED STATES. 125

said act, the authority thereby granted shall cease and be null and void unless 

the actual construction of the dam authorized in such act be commenced within 

one year and completed within three years from the date of the passage of 

such act.

SEC. 7. That the right to alter, amend, or repeal this act is hereby expressly 

reserved as to any and all dams which may be constructed in accordance with 

the provisions of this act, and the United States shall incur no liability for the 

alteration, amendment, or repeal thereof to the owner or owners or any other 

persons interested in any dam which shall have been constructed in accordance 

with its provisions.

SEC. 8. That the word " persons " as used in this act shall be construed to 

import both the singular and the plural, as the case demands, and shall include 

corporations, companies, and associations.

Approved, June 21, 1906.

The above-quoted act vests no authority in the Federal Government 

to regulate corporate features of any development, nor the distribution of power, nor the rates to be charged therefor, nor any other 

matter of public interest except that of navigation. In pursuance of 

the law, seventy-eight special acts have been passed by Congress 

authorizing the construction of dams across navigable waterM 

Whe|Jier or not the authority indicated in the act confers upon tKe 

Federal Government the right to do more than to preserve the navigability of an inland waterway is a question that is in dispute at the 

present time. President Roosevelt vetoed two bills granting franchise for the construction of dams under this act, declaring that he 

would withhold his approval from all bills of this kind unless they 

provided that 

There should be a license fee or charge, which, though small or nominal at 

the outset, can in the future be adjusted so as to secure a control in the interest of the public.

The following excerpt from a report 0 presented by Hon. Knute 

Nelson, United States Senator from Minnesota, on behalf of the Senate Committee on Commerce, contains an argument against such a 

doctrine:

The President, in a communication addressed to the chairman of the Senate 

Committee on Commerce, dated March 18 last, as well as in his veto message 

of April. 17, relating to the bill (H. R. 15444) to extend the time for the construction of a dam across Rainy River, has declared it to be his policy not to 

approve of any bill permitting the construction of a dam by private parties across 

a navigable stream, although due provision is made for the conservation of the 

stream for the purposes of navigation, unless the bill provides for the payment of 

a royalty or compensation to the United States for the use of the water of the 

stream for purposes other than navigation.

This Is a new departure from the policy heretofore pursued in respect to legislation authorizing the construction of such dams, and in view of this fact it 

becomes important to inquire whether the Government of the United States has 

the right to require compensation for the use of water in such streams for purposes other than navigation.

" S. Kept. No. 585, Sixtieth Cong., 1st sess., pp. 3-9,
126 PUBLIC UTILITY OP WATER POWERS.

The common-law doctrine of England that a stream is not deemed to be a 

navigable watercourse unless the tide ebbs and flows in it is not the law in 

this country. The question whether a watercourse is a navigable stream is 

one of fact. If it is capable of being used for the purposes of trade and commerce in any mode, even for floating rafts of logs and timber, it is deemed 

to be a navigable stream.

(The Montello, 20 Wall., 430.)

(St. Anthony Water Power Company v. St. Paul Water Commissioners, 168 

U. S., 349.)

The title to the water of a navigable stream within the borders of a State is 

not in the Federal Government, but in the State; and title to the banks and 

bed of the stream, after the Federal Government has parted with its riparian 

lands, is either in the State or in the riparian owner, or both, according to the 

laws of the respective States. These principles have been laid down and 

applied by the Supreme Court of the United States in the following among 

other cases, and is the settled law of the land, to wit: Martin v. Waddell (16 

Pet., 367); Pollard v. Hagan (3 How., 212); Goodtitle v. Kibbe (9 How., 

471) ; Barney v. Keokuk (94 U. S., 324) ; St. Louis v. Myers (113 U. S., 566) ; 

Packer v. Bird (137 U. S., 661) ; Hadrin -r. Jordan (140 U. S., 371) ; Kaukauna 

Water Power Company v. Green Bay and Mississippi Canal Company (142 

U. S., 254) ; Shively v. Bowlby (152 U. S., 1) ; Water Power Company v. Water 

Commissioners (168 U. S., 349) ; Kean v. Calumet Canal Company (190 U. S., 

452) ; United States v. The Chandler Dunbar Water Power Company (U. S. 

Supreme Court, April 20, 1908).

The use of water in such a stream is a matter of state regulation and state 

control. In many of the States the common-law rule, as defined in the following language of Chancellor Kent, prevails, to wit:

" Every proprietor of lands on the banks of a river has naturally an equal 

right to the use of the water which flows in the stream adjacent to his 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 tit currere solebat 

is the language of the law. Though he may use the water while it runs over 

his land as an incident to the land, he can not unreasonably detain it or 

give it another direction, and he must return it to its ordinary channel when it 

leaves his estate."

In the mining and arid States the rule of prior appropriation for mining and 

irrigation purposes prevails, and this rule of the States has been recognized by 

federal statutes (Rev. Stat., sees. 2339-2340). In some of the States there is a 

mixed application, as in California, of the common-law rule and the rule of 

prior appropriation.

But whatever rule may prevail in any State as to the use of the water in a 

stream, it is always subject to the following limitations, laid down by the 

Supreme Court in the case of the United States u. Rio Grande Dam and Irrigation Company (174 U. S., 690) :

"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 can 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 water; 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
WATER-POWER LEGISLATION IN UNITED STATES. 127

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."

Where the Federal Government is not interested as the owner of riparian 

lands the only interest it has in the water of a stream is as to its use for purposes of navigation, and it can lay no claim to the use of the water for any other 

purpose, not even for irrigation. (Kansas v. Colorado, 206 U. S., 46.)

In this case the United States appeared as intervener, but inasmuch as it 

founded its claim not on the question of navigation but on the question of 

irrigation, the court held that it had no ground for intervention and dismissed 

its petition. In reference to this subject the court says:

" It follows from this that if in the present case the National Government 

was asserting, as against either Kansas or Colorado, that the appropriation for 

the purpose of irrigation of the waters of the Arkansas was affecting the navigability of the stream, it would become our duty to determine the truth of the 

charge. But the Government makes no such contention. On the contrary, it 

distinctly asserts that the Arkansas River is not now and never was practically 

navigable beyond Fort Gibson, in the Indian Territory, and nowhere claims 

that any appropriation of the waters by Kansas or Colorado affects its navigability.

" It rested its petition of intervention upon its alleged duty of legislating for 

the reclamation of arid lands. * * *

" Turning to the enumeration of the powers granted to Congress by the 

eighth section of the first article of the Constitution, it is enough to say that no 

one of them by any implication refers to the reclamation of arid lands. * * *

" While arid lands are to be found mainly if not only in the Western and 

newer States, yet the powers of the National Government within the limits of 

those States are the same (no greater and no less) than those within the limits 

of the original thirteen, and it would be strange if, in the absence of a definite 

grant of power, the National Government could enter the territory of the States 

along the Atlantic and legislate in respect to improving, by irrigation or otherwise, the lands within their borders. Nor do we understand that hitherto Congress has acted in disregard to this limitation."

It was the doctrine at common law that a grant of land upon the borders of a 

navigable stream carried the grant only to high-water mark, while a grant of 

land bordering upon a nonnavigable stream carried the ownership to the center 

or thread of the stream, subject to the public easement.

In the case of Hardin v. Jordan (140 U. S., 384), the Supreme Court states:

" The United States have not repealed the common law as to the interpretation of their own grants, nor explained what interpretation or limitation should 

be given to or imposed upon the terms of the ordinary conveyances which they 

use except in a few special instances; but these are left to the principles of 

law and rules adopted by each local government where the land may lie. We 

have adopted the common law, and must therefore apply its principles to the 

interpretation of their grant."

Further on the court states the same principle in this form:

" In our judgment the grants of the Government for lands bounded on 

streams and other waters without any reservation or limitation of terms are 

to be construed as to their effect according to the laws of the State in which 

the lands lie."

The rule of riparian ownership as to grants of land bordering on a navigable 

stream is diverse in the various States. Some States hold that the grant
128 PUBLIC UTILITY OP WATER POWERS.

extends only to high-water mark; other States hold that it extends to low-water 

mark, while another class of States and perhaps the most numerous hold 

that the grant extends to the middle of the stream, subject to the public easement in the water of the stream. But whatever may be the law in this respect 

as to the effect of the grant, it only relates to the proprietorship in the banks 

and bed of the stream and not to the ownership of the water in the stream.

In those States which hold that the title of the riparian owner only extends to the high or low water mark the title to the bed of the stream is deemed 

to be in the State, and whether the title to the bed of the stream is in the 

riparian owner or in the State, in either case the general title to the water of 

the stream is deemed to be in the State, but it holds it not absolutely but in. 

trust for all lawful public uses. The State's interest in such a stream is 

akin to that of a riparian owner, though more comprehensive and general in 

its nature, and does not exist in hostility to or in diminution of the rights of the 

riparian owner.

(Rossmiller v. State, 114 Wis., 169.)

(Peoples Ice Co. v. Davenport, 149 Mass., 322.)

(Brown v. Cunningham, 82 Iowa, 512.)

(Braston v. Rockport Ice Co., 77 Maine, 100.)

(Martin et al. v. Waddell, 16 Peters, 367.)

From the foregoing it will appear that there are three different parties who 

are interested in the waters of a navigable stream (1) the United States; 

(2) the State in which the stream is located; (3) the riparian owner. The 

interest of the United States is derived from and rests upon that paragraph of 

the Constitution which gives Congress the power to regulate interstate commerce, and this power only extends to the extent of conserving the navigability 

of the stream. Beyond that the Federal Government has no interest or property in the stream.

The interest of the State in the stream is derived from its sovereignty and it 

hold« its property in the stream in trust for all public uses but in subrogation 

to the rights of the Federal Government as to navigation and of the riparian 

owner. The right to the use of the waters of a stream for any lawful purpose, 

outside of the right of navigation, belongs wholly to the State and the riparian 

owner.

(Martin et al. v. Waddell, 16 Peters, 367.)

Chief Justice Shaw, in the case of Elliott v. Fitchburg Railroad Company 

(10 Gushing, 191), describes the rights of the riparian owner in the use of 

water in a stream in the following language, which states the enlarged and 

modified common-law doctrine:

"The right to flowing water is now well settled to be a right incident to 

property in the land; it is a right public! juris, of such a character that, while 

it is common and equal to all through whose land it runs and no one can obstruct or divert it, yet, as one of the beneficial gifts of Providence, each proprietor has a right to a just and reasonable use of it as it passes through his 

land; and, so long as it is not wholly obstructed or diverted or no larger 

appropriation of the water running through it is made than a just and reasonable use, it can not be said to be wrongful or injurious to a proprietor lower 

down. What is such a just and reasonable use may often be a difficult question, 

depending upon various circumstances. To take a quantity of water from a 

large running stream for agricultural or manufacturing purposes would cause 

no sensible or practicable diminution of the benefit, to the prejudice of a lower 

proprietor; whereas, taking the same quantity from a small, running brook 

passing through many farms would be of great and manifest injury to those 

below, who need it for domestic supply or watering cattle; and therefore it
WATER-POWER LEGISLATION IN UNITED STATES. 129

would be an unreasonable use of the water, and an action would lie in the 

latter case and not in the former. It is therefore to a considerable extent a 

question of degree; still the rule is the same, that each proprietor has a right 

to a reasonable use of it, for his own benefit, for domestic use, and for manufacturing and agricultural purposes. * * *

"That a portion of the water of a stream may be used for the purpose of 

irrigating land we think is well established as one of the rights of the proprietors of the soil along or through which it passes. Yet a proprietor can 

not, under color of that right or for the actual purpose of irrigating his own 

land, wholly abstract or divert the watercourse or take such an unreasonable 

quantity of water or make such unreasonable use of it as to deprive other 

proprietors of the substantial benefits which they might derive from it if not 

diverted or used unreasonably. * * *

" This rule, that no riparian proprietor can wholly abstract or divert a watercourse, by which it would cease to be a running stream, or use it unreasonably 

in its passage and thereby deprive a lower proprietor of a quality of his property, deemed in law incidental and beneficial, necessarily flows from the principle that the right to the reasonable and beneficial use of a running stream is 

common to all the riparian proprietors, and so each is bound to use his common 

right as not essentially to prevent or interfere with an equally beneficial enjoyment of the common right by all the proprietors. * * *

" The right to the use of flowing water is public! juris, and common to all 

the riparian proprietors; it is not an absolute and exclusive right to all the 

water flowing past their land, so that any obstruction would give a cause of 

action; but it is a right to the flow and enjoyment of the water, subject to a 

similar right in all the proprietors to the reasonable enjoyment of the same 

gift of Providence. It is therefore only for an abstraction and deprivation 

of this common benefit or for an unreasonable and unauthorized use of it that 

an action will lie."

The doctrine of prior appropriation, already referred to, is thus described 

by Justice Field in the case of Jennison v. Kirk (98 TJ. S., 453). After describing the system of discovery and appropriation and development of mining 

claims, he adds the following:

" But the mines could not be worked without water. Without water the 

gold would remain forever buried in the earth or rock. To carry water to 

mining localities when they were not on the bank of a stream or lake became 

therefore an important and necessary business in carrying on mining. Here, 

also, the first appropriator of water to be conveyed to such locality for mining 

or other beneficial purposes was recognized as having, to the extent of actual 

use, the better right. The doctrine of the common law respecting the right 

of riparian owners was not considered as applicable, or only in a very limited 

degree, to the conditions of miners in the mountains. The waters of rivers 

and lakes were, consequently, carried great distances in ditches and flumes, 

constructed with vast labor and enormous expenditures of money, along the 

sides of mountains and through canyons and ravines, to supply communities 

engaged in mining as well as for agriculturists and ordinary consumption. 

Numerous regulations were adopted, or assumed to exist from their obvious 

justness, for the security of these ditches and flumes, and for the protection 

of rights to water, not only between different appropriators, but between them 

and the holders of mining claims. These regulations and customs were appealed 

to in controversies in the state courts, and received their sanction; and properties to the value of many millions rested upon them. For eighteen years, 

from 1848 to 1866, the regulations and customs of miners, as enforced and 

molded by the courts and sanctioned by the legislation of the State, consti23321 No. 238 10 9
130 PUBLIC UTILITY OP WATER POWERS.

tuted the law governing property in mines and in water on the public mineral 

lands."

These water rights, by prior appropriation, as described by Justice Field, were 

recognized and confirmed by congressional legislation in 1866 and in 1870. 

Those acts are now sections 2339 and 2340 of the Revised Statutes. Justice 

Field further adds:

" It will thus be seen that the federal statutes merely gave a formal sanction 

to the rules already established. Those rules had been built up in reliance on 

the tacit acquiescence of the United States, the true owner of the lands and 

waters on which appropriations were made, and these statutes acquiesced 

therein expressly, ' a voluntary recognition of the preexisting right rather than 

the establishment of a new one.'"

In the case of Broder v. Natoma Water Company (101 U. S., 274) the 

Supreme Court, in referring to the contention that these statutes established a 

new right, uses the following language:

"We are of the opinion that it is the established doctrine of this court that 

rights of miners who had taken possession of mines and worked and developed 

them, and the rights of persons who had constructed canals and ditches to be 

used in mining operations and for purposes of agricultural irrigation, in the 

region where such artificial use of the water was an absolute necessity, are 

rights which the Government had, by its conduct, recognized and encouraged 

and was bound to protect before the passage of the act of 1866, and that the 

section of the act which we have quoted was rather a voluntary recognition 

of a preexisting right of possession, constituting a valid claim to its continued 

use, than the establishment of a new one."

These decisions of Judge Shaw, of Massachusetts, and of Justice Field, of the 

Supreme Court, describe fully the rights of the riparian owners to the use of 

the water both under the doctrine of the common law and under the so-called doctrine of prior appropriation, and the case of Rossmiller v. The State (114 Wis., 

169), and the cases therein referred to, as well as the case of Martin et al. v. 

Waddell (16 Peters, 367), show the interest and property of a State in the 

waters of a stream.

From the foregoing statement and citation of authorities it is evident that the 

only use of the waters of a stream in which the United States has any property 

is its use for purposes of navigation. In the use of the stream for any other 

purpose the Federal Government has no property, and hence has nothing to sell 

or to exact compensation for.

The plan proposed by the President would deprive the States and the riparian 

owners of their rights in the use of the water of a navigable stream now vested 

in them by law, and would concentrate the entire disposal and control in the 

Federal Government, a power which neither the States nor the riparian owners 

can, with justice or safety, for a moment concede. But, assuming for the sake 

of the argument that the Federal Government can lay a tribute in such cases 

as is proposed by the President, it can not be under the interstate-commerce 

clause of the Constitution, but must be under section 8 of article 1, which reads 

as follows:

" SEC. 8. The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and 

general welfare of the United States; but all duties, imposts, and excises shall 

be uniform throughout the United States."

Such a tribute must be either a direct tax or in the nature of an impost or 

excise tax. If a direct tax, it can not be levied directly by the Federal Government, but must be apportioned among the States, leaving each State to make the 

collection; and if an impost or excise tax, then it must be levied by the rule
WATER-POWER LEGISLATION IN UNITED STATES. 131

of uniformity upon every dam and water power in the United States not constructed directly or indirectly by the Federal Government. In other words, 

there must be a general excise law on the subject. The power of the Federal 

'Government over the navigable streams of the country is no greater in the socalled Western or public-land States than in the New England States. If a 

tribute can be levied on a dam and water power in Minnesota or Colorado, it 

can be levied on a dam and water power in Maine or Massachusetts, for the 

power of the Federal Government over navigable streams is the same in the one 

case as in the other. In the case of Pollock y. Farmers Loan and Trust 

Company (157 U. S., 557) the court states:

" Thus in the matter of taxation the Constitution recognizes the two great 

classes of direct and indirect taxes, and lays down two rules by which their 

imposition must be governed, namely, the rule of apportionment as to direct 

taxes and the rule of uniformity as to duties, imposts, and excises."

In the case of Thomas v. United States (192 U. S., 363), Chief Justice 

Fuller says:

"And these two classes, taxes so called, and 'duties, imposts, and excises,' 

apparently embrace all forms of taxation contemplated by the Constitution. 

As was observed in Pollock v. Farmers Loan and Trust Company (157 U. S., 

429, 557), 'Although there have been from time to time intimations that there 

might be some tax which was not a direct tax nor included under the words 

" duties, imposts, and excises," such a tax for more than one hundred years of 

national existence has as yet remained undiscovered, notwithstanding the 

stress of particular circumstances has invited thorough investigation into 

sources of revenue.' * * *

" There is no occasion to attempt to confine the words duties, imposts, and 

excises to the limits of precise definition. We think that they were used comprehensively to cover customs and excise duties imposed on importation, consumption, manufacture, and sale of certain commodities, privileges, particular 

business transactions, vocations, occupations, and the like."

An act authorizing the construction of a dam is, so far as the United States 

is concerned, a mere revocable license or privilege, and if a tax can be imposed 

on such a privilege it must be general and uniform throughout the United 

States. It must apply to all dams and water powers on navigable streams 

throughout the entire country.

Nearly all navigable streams in their upper and more remote courses are 

not, as a matter of fact, navigable, and in such reaches of the river dams can 

be erected and water powers created under state authority and state liceuse, 

and so long as such dams and water powers do not materially injure or diminish 

the navigability of the stream in its navigable portions the Federal Government has no ground for interference. It has been customary, however, in 

many of such cases to apply to Congress for a federal license, and the granting 

of it, while not necessary, serves a twofold purpose, first, that it authorizes 

the Federal Government, through the War Department, to control and direct 

the construction of the dam, and, second, that it recognizes the fact, which 

might otherwise require proof, that the dam will not affect.the navigability 

of the stream in its navigable portions.

(Kansas r. Colorado, 206 U. S., 46.)

(United States v. Rio Grande Company, 174 U. S., 690.)

And in such cases it is of as much advantage to the United States as to the 

grantee of the license to have congressional action and recognition, but in such 

cases the Federal Government has nothing to sell, and, therefore, has no moral 

or legal ground to demand compensation in any form.
132 PUBLIC UTILITY OF WATER POWERS.

An adverse comment on the above report, made as a private memorandum on May 11, 1908, by Morris Bien, supervising engineer in 

charge of land and legal matters, United States Reclamation Service, 

is presented below:

MAY 11, 1908.

Memorandum upon report of Committee on Commerce of Senate to accompany 

H. R. 1^707, Sixtieth Congress, first session, Senate Report 585.

The report discusses the power of Congress to authorize charges for the use 

of waters of navigable streams for power and other purposes in connection 

with darns authorized to be constructed across such streams. A number of decisions are cited tending to show that the ownership of the waters of navigable 

streams is in the States. In many of the decisions cited the particular point of 

ownership is not necessary to the decision of the case and the expressions quoted 

are from the general discussion of the subject.

A careful study of the cases will lead to the conclusion that the general principle of ownership by the States of the waters of navigable streams has not been 

decided, nor can it be expected that such a principle will be adopted by the 

courts because it is manifestly contrary to the fundamental idea of the Constitution that Congress shall have the power " to regulate commerce with 

foreign nations, and among the several States, and with the Indian tribes."

In the case of Gilman v. Philadelphia (3 Wall., 713-724) the United States 

Supreme Court held as follows:

" Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than 

those in which they lie. For this purpose they are the public property of the 

nation, and subject to all the requisite legislation by Congress."

In the case of the United States r. The Rio Grande Darn and Irrigation Company (174 U. S., 690), there was involved the right of the company to operate 

under a grant of right of way approved by the Secretary of the Interior under 

the general right-of-way act of March 3, 1891. It was claimed that as the proposed reservoir would impound practically all the waters of the Rio Grande the 

effect upon navigation was injurious and the company should be prohibited from 

utilizing the grant claimed under the act of Congress.

The Supreme Court, after discussing several acts of Congress relating to the 

use of waters upon lands in the West, continues as follows:

" 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 can not 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." 

(P. 706.)

Proceeding then to discuss the act of September 19, 1890, prohibiting the obstruction of the navigable capacity of any waters over which the United States 

has jurisdiction, the court holds that 

"Any obstruction to the navigable capacity, and anything, wherever done or 

however done, within the limits of the jurisdiction of the United States which 

tends to destroy the navigable capacity of one of the navigable waters of the 

United States, is within the terms of the prohibition. Evidently Congress, per-
WATER-POWER LEGISLATION IN UNITED STATES.

ceiving that the time had come when t 

that the navigable waters of the Unit 

control of the National Government, 

State tending to destroy that naviga 

National Government, enacted the sta 

properly ignore the scope of this lan 

very limits of navigation of a naviga

This case involved the waters of 

Territory of New Mexico and it might 

to have a general effect and applicah 

the limits of States.

This is, however, not th« case, bees 

Congress over interstate commerce a 

is applicable solely to the Territorie

This is made more evident by the il 

to the waters of the Hudson River, 

navigable, stream, at least from Alb; 

of the State of New York to appropi 

that while the State might authorize 

taries of the Hudson and the United S 

unless the navigability of the Hudso 

York should, even at a place above t 

volume of the waters as to destroy 

National Government undoubtedly w 

of the Attorney-General to institute p 

(P. 709.)

While the word " navigation" is 

merce " comprehends it. (Gibbons v 

States can have no power to exercise

navigable streams that will in any 

commerce by Congress. In the case 

vania (114 U. S., 196-203) the Uni 

power to regulate commerce " is the 

shall be governed; that is, the condit

Congress has in many cases requir 

talities of commerce and navigation, 

the charge of toll for vessels using c

the like. These are not taxes, but ar

The requirements of fees or char,

nected with the power to regulate an

133

e growing interests of commerce required 

1 States should be subjected to the direct 

ind that nothing should be done by the 

ility without the explicit assent of the 

ute in question. And it would be to imuage to limit it to acts done within the 

le stream." (P. 708.) 

he Rio Grande within the limits of the 

therefore be doubted that it was intended 

to waters of navigable streams within

use the decision rests upon the power of 

d is not based upon any principle which

ustration which the court gives in regard 

ailing attention to the fact that it is a 

ny southward, and discussing the rights 

ate the waters of its tributaries, stating 

the diversion of the waters of the tribuates may not question such appropriation 

be disturbed, yet if the State of New 

tie limits of navigability, so diminish the 

its navigability the jurisdiction of the 

uld arise and it would become the right 

oceedings to restrain such appropriation.

ot in the Constitution the word " coinOgden, 9 Wh., 1-222.) Accordingly the 

ownership or control over the waters of

manner interfere with the regulation of

f Gloucester Ferry Company y. Pennsyld States Supreme Court held that the

)ower to prescribe the rules by which it

ons upon which it shall be conducted; to

determine when it shall be free and when subject to duties or other exactions."

d payment for the use of the instrumenMany instances may be cited, such as

nals, charges placed on immigrants, and

in the nature of license charges. 

's of various kinds is inseparably conhas been so held in numerous instances.

This question was fully discussed i.i the Head Money Cases (112 U. S., 580). 

This case involved the constitutionality of the immigration act, requiring payment of a duty of 50 cents for ever^ passenger brought into the country who 

was not a citizen of this country, l.ie constitutionality of the act was upheld 

upon the ground that it was a proper form of regulation of commerce.

Objection was made to the act, am, ng other things, that this duty of 50 cents 

per head was not a proper exercise of the taxing power conferred upon Congress 

by the Constitution. The court, howt ver, held that this was not a tax, and said:

" We are clearly of the opinion tL. 't, in the exercise of its power to regulate 

immigration and in the very act of exercising that power, it was competent for 

Congress to impose this contribution cm the shipowner engaged in that business."

The matter reduces itself to the following propositions, which seem selfevident. Congress has the power o regulate commerce between the States,
134 PUBLIC UTILITY OF WATER POWERS.

which includes navigation upon navigable waters; and the power to regulate 

the use of navigable waters includes the power to make appropriate charges for 

the use of all instrumentalities connected therewith.

A further comment on the same doctrine, by Charles Edward 

Wright, is as follows: °

In certain quarters it is denied that the United States has power to impose a 

charge in such a case. It is argued that the charge would be either a direct 

tax or in the nature of an impost or excise tax. If the former, it must be 

apportioned among the States rather than levied directly by the Federal Government itself; if the latter, it must be uniformly levied on every dam and water 

power in the entire country.

The latter objection, however, is not altogether sound. Uniformity, in the 

sense of the constitutional provision respecting taxation, means a geographical 

uniformity, the tax operating on all similar properties. That is, in every 

instance where the Federal Government approves the location and plans of a 

dam, thereby authorizing its construction, whether in a navigable waterway 

east, west, north, or south, the tax must be uniformly laid. But a water power 

developed on a nonnavigable stream, without let or license from the National 

Government, would stand in another category. Any rule of conformity would 

not necessarily involve the inclusion of such dams or water-power privileges; 

it would merely require the levy of such a tax upon every power privilege 

similarly authorized or confirmed by the Federal Government.

Recurring to the act of Congress establishing the California Debris Commission, already noticed in part, we find provisions for a " tax" which applies 

with no " geographical uniformity" throughout the country, but is restricted 

in operation to only a part of the State of California.

Briefly, the hydraulic process in mining may not be employed about the 

tributaries of certain navigable streams in that State without permit from 

the commission, the permit to be granted upon petition and hearing. The license, 

if granted by a majority of the board, embodies directions and specifications 

in detail as to the manner in which operations may proceed; what restraining 

or impounding works shall be built and maintained, and where they shall be 

located; " and in general set forth such further requirements and safeguards 

as will protect the public interests and prevent injury to the said navigable 

rivers, and the lands adjacent thereto, with such" further conditions and limitations as will observe all the provisions of this act in relation to the working 

thereof and the payment of taxes on the gross proceeds of the same. Provided, 

That all expense incurred in complying with said order shall be borne by the 

owner or owners of such mine or mines." (Act of March 1, 1893, sec. 13.) 

The " taxes on the gross proceeds " are imposed by the twenty-third section of 

the act, which provides that the operators of the mines affected by the act " shall 

pay a tax of three per centum on the gross proceeds " of the mine so worked, said 

" tax " to be ascertained and paid in accordance with regulations to be adopted 

by the Secretary of the Treasury and to be paid into the Federal Treasury to the 

credit of the " debris fund," which shall be expended by said commission under 

the supervision of the Chief of Engineers and direction of the Secretary of 

War in the construction and maintenance of restraining works and settling 

reservoirs in aid of the purpose Congress had in mind in passing the act.

This act had been held to be constitutional, as already noted. Yet in terms 

it provides for the collection of a " tax " which is neither " apportioned " among

0 The scope of state and federal legislation concerning the use of waters, by Char lea 

Edward Wright, Assistant Attorney to the Secretary of the Interior: Annals Am. Acad. 

Polit. and Social Sci., 1909, pp. 577-581.
WATEB-POWER LEGISLATION IN UNITED STATES. 135

the States nor is levied by any rule of uniformity. Rather than a general 

excise law, it is one of special and circumscribed application. Still, the charge 

imposed is christened a " tax." If it Were a tax, there can be little doubt of 

the unconstitutionality of the act. Wherein does such a " tax" differ from 

that to be charged upon the grant of special privileges for power purposes in 

a navigable stream? Both find their reason for existence in the conservation 

of navigation, although the miners may be required to pay for privileges connected directly with nonnavigable inti'astate tributaries, while the power producers operate directly in the navigablte stream itself.

But the charge is not a " tax " in th^ constitutional sense; it is of the nature 

of a license the according of a special right or privilege to do a thing, which, 

without permission, would be unlawful. It is leave and liberty enjoyed as a 

matter of indulgence at the will of the Federal Government. * * *

The power to charge for a special privilege is not necessarily an exercise 

of the power to tax. It is rather the right to exact a quid pro quo. Public 

interests are bound to be jeopardized, even though certain advantages to a 

locality accrue from the establishment of the power plant. One has already 

been suggested the operation of a lock; for the very fact that gives the 

Federal Government any measure of control viz, the navigability of the 

stream involves the conservation of Navigation through artificial means. The 

charge imposed liquidates this that otherwise would be a burden in the nature 

of a tax upon the public. Aside from this, another potential element of cost 

to the public is involved the possibility that the Government may be obliged 

to remove the obstruction caused by t|he building of the dam at its own cost. 

Ordinarily this has been guarded against by the exaction of a bond in a 

large penal sum, the burden of carrying which is an annual charge upon the 

owners of the franchise. What vital objection can there be to the adoption of 

a plan whereby the licensee, in lieu of annual tribute to a bonding company, 

pays such premiums into the Federal Treasury a measure of insurance against 

the loss that might be occasioned were the franchise holder bankrupt and the 

needs of navigation were to require the removal of the dam? The fund 

created by the payment of these charges may be either devoted directly to the 

betterment of navigation, particularly Jn the removal of obstructions, or turned 

into the Treasury as a part of the general fund, indirectly serving the same 

purpose by relieving the taxpayer. If the Federal Government has the power 

to withhold approval, it has power to bestow approval upon such terms as it 

may deem necessary to impose in order! to protect the present or future interests 

of the United States. If it has the power to exact a bond to protect the public 

against loss when, in the interest of navigation, it becomes necessary to remove 

the obstruction, it has the power to create a fund for the same purpose. If 

the public in general contribute to that fund, their contributions are in the 

nature of a tax. If, however, the special beneficiaries of the granted permission contribute to establish such a fund, it is not a tax, but a license charge, 

the sole similarity being that both are a rendering to Caesar of the things that 

are Caesar's.

Moreover, it is entirely competent for Congress to insist "that no privileges a 

affecting navigable streams shall be granted to any corporation unless said corporation operates under a federal charter. The United States has authority 

to create a corporation as a means of carrying into effect any of its sovereign 

powers. (McCulloch v. Maryland, 4 Wheat., 316, 411.) Such a corporation 

may be authorized to construct a dam and lock in aid of navigation, and the 

incidentally developed power may be disposed of by the creature as well as by

<* That is. privileges other than the use of the stream for natural navigable purposes. 

C. E. W.
136 PUBLIC UTILITY OF WATER POWERS.

the sovereign itself under such terms and conditions as Congress sees fit to 

impose. This would bring every power company using the navigable waters 

of the nation directly under the visitorial control of a federal commission the 

Interstate Commerce Commission, for instance with power to regulate charges 

and'to prevent the formation of unlawful or monopolistic combinations. It is 

only natural that such companies should receive their corporate animation from 

the power which controls and regulates interstate commerce, because the ulterior purpose of their being, thus created, would be the production and transmission of power, in itself a feature of commerce which, in its development and 

utilization, will acknowledge no state bounds. In the incorporation of such 

companies, coupled with the grant of these privileges in the waterways of the 

nation, the imposition of charges, the tribute that the creature pays to its creator, will follow easily, logically, and lawfully.

GOVERNMENT DAMS ON NAVIGABLE STREAMS.

Another phase of the water-power situation on navigable streams 

appears at those points where, by reason of abrupt or excessive fall 

in the channel, it is necessary to canalize the river in order to maks 

it possible or safe for navigation. Canalization involves the construction of a dam, and by such construction the United States is 

often the creator of a water-power site. It is probably true that the 

Government can not, by authority of the Constitution, construct 

water powers for commercial purposes, such powers as it is forced to 

construct in the canalization of a river being merely incidental to the 

purposes of navigation. But it has generally been conceded that, 

although the Federal Government does not own the corpus of the 

water, it does own the power that it creates, and it follows logically 

that it can and really does dispose of such power by lease. The practice, however, is not general, and the Government is by no means obtaining proper returns for the power that it has incidentally created, 

chiefly because many of the power sites are not yet in commercial demand. The reasons for this are numerous. At many of the dams 

shortage of water occurs during the summer season, and at such times 

'the primary power is therefore reduced. At other points the amount 

of power available is limited by the low head afforded by the dams, 

and it will not therefore be utilized until the commercial demand is 

increased. Another reason is that many of the government sites are 

in unfavorable localities. Again, their development may be checked 

by the low price of fuel power. But these factors will not always 

be predominant, and we may expect a far greater demand for the 

power developed at government dam sites than there has been in the 

past if the difficulty existing at so many places, namely, the lack of 

water during dry seasons, is overcome. The construction by the 

Federal Government of reservoirs in the uplands and the preservation 

of forests would accomplish this end. Such reservoirs would clearly 

benefit navigation and they would at the same time incidentally 

Benefit the water power. It thus appears that under some conditions
WATEB-POWER LEGISLATION IN UNITED STATES. 137

the Federal Government may have control over certain water powers 

on navigable streams by right of proprietorship.

According to a statement made by the Chief of Engineers, U. S. 

Army, to the National Conservation Commission in 1908, the power 

generated at government dams is sold to the amount of 3,243 horsepower, the revenue therefrom being $5,578.97. The power so used 

is located principally on Muskingmn, Green, and Kentucky rivers in 

the Ohio Valley.

WATER POWERS ON THE PUBLIC LANDS.

Federal laws providing for the development of water powers on 

the public lands have so far consisted merely of clauses or phrases in 

certain land laws regarding rights of way. They provide for no 

regulation of water power, nor do they effectively prevent the diverse abuses that have grown up in connection with water-power 

operation and manipulation, except in the national forests, later to 

be discussed. The two principal laws relative to this matter are 

as follows:

[26 Stat, 1095.]

SEC. 18. 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.

SEC. 19. That any canal or ditch company desiring to secure the benefits of 

this act shall, within twelve months after the location of 10 miles of its canal, 

if the same be upon surveyed lands, and if upon unsurveyed lands within twelve 

months after the survey thereof by the United States, file with the register 

of the land office for the district where such land is located a map of its 

canal or ditch and reservoir; and upon the approval thereof by the Secretary 

of the Interior the same shall be noted upon the plats in said office, and thereafter all such lands over which such rights of way shall pass shall be disposed 

of subject to such right of way. Whenever any person or corporation, in 

the construction of any canal, ditch, or reservoir, 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.

SEC. 20. That the provisions of this act shall apply to all canals, ditches, or 

reservoirs heretofore or hereafter constructed, whether constructed by corpora-
138 PUBLIC UTILITY OF WATEB POWERS.

tions, individuals, or association of individuals, on the filing of the certificate 

and maps herein provided for. If such ditch, canal, or reservoir has been or 

shall be constructed by an individual or association of individuals, it shall be 

sufficient for such individual or association of individuals to file with the Secretary of the Interior and with the register of the land office where said land is located a map of the line of such canal, ditch, or reservoir, as in case of a corporation, with the name of the individual owner or owners thereof, together 

with the articles of association, if any there be. Plats heretofore filed shall 

have the benefits of this act from the date of their filing, as though filed under 

it: Provided, That if any section of said canal or ditch shall not be completed 

within five years after the location of said section the rights herein granted 

shall be forfeited as to any uncompleted section of said canal, ditch, or reservoir, to the extent that the same is not completed at the date of the forfeiture.

SEC. 21. That nothing in this act shall authorize such canal or ditch company 

to occupy such right of way except for the purpose of said canal or ditch, and 

then only so far as may be necessary for the construction, maintenance, and care 

of said canal or ditch.

General Land Office regulations relative to the administration 

of the above-quoted act contain the following statements: °

3. Control of water. While these acts grant rights of way over the public 

lands necessary to the maintenance and use of ditches, canals, and reservoirs, 

the control of the flow and use of the water is, so far as this act is concerned, 

vested in the States or Territories, the jurisdiction of the Department of the 

Interior being limited to the approval of maps carrying the right of way over 

the public lands. If the right of way applied for under this act in any wise 

involves the appropriation of natural sources of water supply, the damming of 

rivers, or the use of lakes, the maps should be accompanied by proof that the 

plans and purposes of the projectors have been regularly submitted and approved in accordance with the local laws or customs governing the use of water 

in the State or Territory in which such right of way is located. No general rule 

can be adopted in regard to this matter. Each case must rest upon the showing 

filed.

4. Nature of grant. The right granted is not in the nature of a grant of 

lands, but is a base or qualified fee. The possession and right of use of the 

lands are given for the purposes contemplated by law, but a reversionary 

interest remains in the United States, to be conveyed by it to the person to 

whom the land may be patented, whose rights will be subject to those of the 

grantee of the right of way. All persons settling on a tract of public land, to 

part of which right of way has attached for a canal, ditch, or reservoir, take 

the land subject to such right of way, and at the total area of the subdivision 

entered, there being no authority to make deduction in such cases. If a settler 

has a valid claim to land existing at the date of the filing of the map of definite 

location, his right is superior, and he is entitled to such reasonable measure of 

damages for right of way as may be determined upon by agreement or in the 

courts, the question being one that does not fall within the jurisdiction of this 

department. Section 21 of the act of March 3, 1891, provides that the grant of 

a right of way for a canal, ditch, or reservoir does not necessarily carry with it 

a right to the use of land 50 feet on each side, but only such land may be used 

as is necessary for construction, maintenance, and care of the canal, ditch, or 

reservoir. The width is not specified.

0 Regulations concerning right of way over public lands and reservations for canals, 

ditches, and reservoirs, and for use of right of way for various purposes; approved June 

6, 1908, pp. 4, 5.
WATER-POWER LEGISLATION IN UNITED STATES. 139

The second right-of-way act is entitled "An act relating to rights 

of way through certain park reservations and other public lands," 

approved February 15, 1901 (Stat. L., vol. 31, p. 790), as follows:

Be it enacted by the Senate and House of Representatives of the United 

States of America in Congress assembled, That the Secretary of the Interior be, 

and hereby is, authorized and empowered, under general regulations to be fixed 

by him, to permit the use of rights of way through the public lands, forest 

and other reservations of the United States, and the Yosemite, Sequoia, and 

General Grant national parks, California, for electrical plants, poles and lines 

for the generation and distribution of electrical power and for telephone and 

telegraph purposes and for canals, ditches, pipes and pipe lines, flumes, tunnels, 

or other water conduits, and for water plants, dams, and reservoirs used to 

promote irrigation or mining or quarrying, or the manufacturing or cutting of 

timber or lumber, or the supplying of water for domestic, public, or any other 

beneficial uses to the extent of the ground occupied by such canals, ditches, 

flumes, tunnels, reservoirs, or other water conduits or water plants or electrical 

or other works permitted hereunder and not to exceed fifty feet on each side 

of the marginal limits thereof, or not to exceed fifty feet on each side of the 

center line of such pipes and pipe lines, electrical, telegraph, and telephone 

lines and poles, by any citizen, association, or corporation of the United States, 

where it is intended by such to exercise the use permitted hereunder or any 

one or more of the purposes herein named: Provided, That such permits shall 

be allowed within or through any of said parks or any forest, military, Indian, 

or other reservation only upon the approval of the chief officer of the department under whose supervision such park or reservation falls, and upon a 

finding by him that the same is not incompatible with the public interest: 

Provided further, That all permits given hereunder for telegraph and telephone 

purposes shall be subject to the provision of title sixty-five of the Revised 

Statutes of the United States, and amendments thereto, regulating rights of 

way for telegraph companies over the public domain: And provided further, 

That any permission given by the Secretary of the Interior under the provisions 

of this act may be revoked by him or his successor in his discretion, and shall 

not be held to confer any right, or easement, or interest in, to, or over any 

public land, reservation, or park.

FOBEST SERVICE REGULATIONS.

The only water-power regulation attempted by the Federal Government is that exercised by the United States Forest Service on the 

national forests. Authority for such regulations is based on several 

federal laws relating to forest reservations, viz:

[Act of June 4, 1897 (30 Stat. 11).]

All the public lands heretofore designated and reserved by the President of 

the United States under the provisions of the act approved March 3, 1891, the 

orders for which shall be and remain in full force and effect, unsuspended and 

unrevoked, and all public lands that may hereafter be set aside and reserved as 

public forest reserves under said act, shall be as far as practicable controlled 

and 

#####*#

administered in accordance with the following provisions.

The Secretary of the Interior shall make provisions for the protection against 

destruction by fire and depredations upon the public forests and forest reserva-
140 PUBLIC UTILITY OP WATER POWERS.

tions, which may have been set aside or which may be hereafter set aside, 

under the act of March 3, 1891, and which may be continued; and he may make 

such rules and regulations, and establish such service as will insure the objects 

of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction. * * *

A later law, approved February 15, 1901 (31 Stat., 790), already 

quoted on page 139, specifies further powers with reference to national 

forests. Under an act approved February 1, 1905, the execution of 

all laws relative to national forests, or forest reserves, as they were 

known at that time, was transferred to .the Secretary of Agriculture, 

and it is section 5 of that act which, in the opinion of the Department of Justice, confirms the opinion that Congress did, in the previous act above quoted, clothe the Secretary of the Interior with authority to issue permits and make regulations for the establishment 

and maintenance of water powers therein. The text of section 5 is as 

follows:

That all money received from the sale of any product or the use of any land 

or resource of said forest reserves shall be covered into the Treasury of the 

United States and, for a period of.five years from the passage of this act, shall 

constitute a special fund available until expended as the Secretary of Agriculture may direct, for the protection, administration, improvement, and extension of federal forest reserves.

In response to a request made by the Secretary of the Interior to 

the Department of Justice for an opinion as to the powers conferred 

upon said Secretary by the terms of these acts, Attorney-General 

(now Mr. Justice) Moody rendered the following decision on May 

31, 1905:

Under the act of 1897 you are simply directed to so regulate the occupancy 

and use of these reservations as to insure the objects thereof and preserve the 

forests thereon from destruction. The act contains nothing inconsistent with 

the making of a reasonable charge on account of the use of the reserves under 

the permit granted by you. By the act of 1905 you are to cover into the Treasury money received from the " use of any land or resources " of the reservations, which " shall constitute a special fund * * * for the protection, administration, improvement, and extension of the federal forest reserves." Any 

sums of money realized in this connection would thus tend to preserve the 

forests and insure the objects of reservations, and it might therefore be contended that Congress, in authorizing you to regulate their use and occupation, 

considered the incidental question of charging for their use a proper subject to 

be left to your judgment and discretion. That such was the Congressional intent finds support in the fact that services somewhat analogous to compensation have been required for several years without any indication of a disapproval thereof on the part of Congress.

Furthermore, your power to prohibit absolutely the use or occupation of any 

forest reserve, when such action is deemed by you essential to insure its objects and preserve the forests from destruction, would probably be unquestionable, and that the authority to prohibit carries with it the right to attach conditions to a permission is well established. (22 Opin., 13, 27.)

In answer to your third question, therefore, I have to advise you that, in my 

opinion, you are authorized to make a reasonable charge in connection with tlie
WATER-POWER LEGISLATION IN UNITED STATES. 141

use and occupation of these forest reserves, whenever, in your judgment, such 

a course seems consistent with insuring the objects of the reservation and the 

protection of the forests thereon from destruction.

Attorney-General Bonaparte, in a later opinion relative to this 

matter, under date of October 5, 1907, said:

The question under consideration in that case (referring to Attorney-General 

Moody's opinion above quoted) was whether you had authority to make a reasonable charge as a condition of a permit under the act approved June 4, 1897 

(30 Stat., 35), which authorized the Secretary of the Interior to "make such 

rules and regulations and establish such service as will insure the objects of 

such reservations, namely, to regulate their occupancy and use, and to preserve 

the forests thereon from destruction."

It will be observed that neither of these acts conferred upon the Secretary 

of the Interior, expressly, any authority to make a charge of any kind as a 

condition of granting the permits which they respectively authorized. It was 

held, however, by Attorney-General Moody, that such authority was implied in 

the power conferred upon the Secretary by the act of 1897 to grant or refuse 

the permits, in his discretion, and the act of 1905 was referred, to as substantially a legislative recognition of this authority on his part. If, however, the 

act of 1897 conferred upon the Secretary of the Interior, and therefore, afterwards, upon the Secretary of Agriculture, the authority in his discretion to 

req.uire payment of a reasonable charge as a condition of issuing any such permits as are authorized by said act, it seems to me quite clear that the act of 

1901, above quoted, conveys the like authority. The language of the later act 

appears to me more explicit than that of the former, and the intention of the 

Congress to leave the privileges granted under that act revocable in the discretion of the Secretary, as is expressly stated in the last proviso, above quoted, of 

the act of 1901, seeing to be more nearly consonant with a purpose to intrust 

to his discretion all matters connected with the granting of such permits than 

is any relevant provision to be found in the act of 1897. I conclude, therefore, 

that you are authorized by the act of 1901 to make the granting of permits for 

the purposes contemplated by that act dependent upon the payment, by the persons receiving such permits, of such charges as you may deem reasonable for 

the purposes contemplated by the law.

Whether charges based upon the three grounds specifically enumerated in 

your letter requesting an opinion would or would not be reasonable is not, 

under the circumstances of this case, a question proper to be determined by 

this department, but a matter left by the law entirely to your discretion. In 

Riverside Oil Company v. Hitchcock (190 IT. S., 325), referred to in the opinion 

of Attorney-General Moody, above quoted, the court says: " The responsibility 

as well as the power rests with the Secretary, uncontrolled by the courts." 

This would seem to be no less true as to the question presented in the present 

case.

It may be well for me to say, however, that I do not think it clear, as seems 

to be assumed in some of the papers forwarded with your letter, that no charge 

can be made for water used by persons to whom permits may be granted under 

the act approved February 15, 1901. Such persons, independently of their 

permits, would have no right or authority to appropriate the waters within 

the forest reserves; at all events, for such a purpose as the production of 

electric power. It is true that the Congress and the courts have recognized a right to appropriate water on the public lands under state laws or 

local customs, but lands within the forest reserves are not covered by general 

statutes referring to the public lands; and the right to use water on such re-
142 PUBLIC UTILITY OF WATER POWERS.

serves can be secured, it would seem, only under the provisions of the act approved June 4, 1897, and of other legislation specifically referring to the 

reserves, unless, perhaps, such rights existed before the particular reserve in 

question was created. I do not, however, consider it necessary to express a 

positive opinion on this subject, since I understand from your letter that you 

do not intend to consider the value of the mere use of the water itself in 

fixing the compensation to be paid as a condition for permits for its use.

I advise you, therefore, in conclusion that, in my opinion, you have the right 

to make what you believe to be a reasonable charge, as condition of issuing 

permits under the act of February 15, 1901, and that your determination is 

decisive as to what charge is or is not reasonable for such purpose.

Under the authority of the law construed by the Department of 

Justice as set forth above, the Forest Service enforces a power agreement upon parties making use of the national forests for the generation or transmission of water power or the construction of reservoirs for storage for water-power purposes. The form of the power 

agreement is as follows:

UNITED STATES DEPARTMENT OF AGRICULTURE. 

FOREST SERVICE.

___________________________ Uses___________________ 

(Name of forest.)

_____________________:_______ Power_____________________

(Name of applicant.)

(Use applied for. I (Date of application.) 

Power ayrcemrnt.

CLAUSE 1. The ________ company, hereinafter called the permittee, a 

corporation organized and existing under the laws of the State, or Territory, 

of ________, and having its office and principal place of business at 

________, in said State, or Territory, hereby applies for permission to 

occupy and use certain lands of the United States and rights of way reserved 

by the United States within the ________ National Forest, by constructing, 

maintaining, and operating thereon, for the purpose in this clause below set 

forth, the following works:»

(Cancel such of the three following items (a), (b), (c) as may not be applicable.)

(o) ____ dam_ approximately ____ feet in height, respectively, and 

____ reservoir_ to flood approximately ____ acres, whereof approximately 

___ acres are national-forest land.

(6) ___ conduit_ approximately ___ miles in length, whereof approximately ___ miles will lie upon national-forest land or land within national 

forests over which a right of way for ditches or canals, constructed by the 

authority of the United States, is reserved by the act of August 30, 1890 (26 

Stat., 391).

(c) ____ power house_ and appurtenant structures to occupy approximately ____ acres, whereof approximately ____ acres are national-forest 

land; all approximately as shown on ____ certain tracing_, executed by 

_________ on ________, 19__, respectively, filed in _______ on 

_______, 19__, respectively, and marked by the designation hereto prefixed, which tracing _ hereby made a part of this instrument.
WATER-POWEE LEGISLATION IN UNITED STATES. 143

The works for which a permit is hereby applied for are to be constructed, 

maintained, and operated for the purpose of storing, conducting, and/or using 

water for the generation of electric energy.

The permittee does hereby, in consideration for the permit hereby applied 

for, promise and agree for itself and its successors to comply with all regulations and instructions of the Department of Agriculture governing national 

forests, and especially with the following conditions:

CLAUSE 2. The permittee shall pay to the ________ National Bank of 

 __ (United States depositary), or such other government depositary 

or officer as shall hereafter be duly designated by the United States, to be placed 

to the credit of the United States, a construction charge of ________ dollars ($___), annually in advance from ________ until the beginning of 

the use, for the purpose aforesaid, of the work or works for which permit is 

hereby applied for, being at the approximate rate of one dollar per acre and 

five dollars per mile for the land occupied by said works, at which time the 

permittee shall be entitled to a credit toward the operation charge hereinafter 

provided for of part of such annual construction charge so last paid, proportionate to the remaining part of the year for which such last payment was made; 

and annually thereafter a net operation charge fixed by the Forester and 

calculated as follows: The gross operation charge for any year shall be calculated by the Forester upon the basis of the quantity of e 

in such year at a maximum rate which shall not exceed 

per thousand kilowatt-hours:

For the first year______________________. 

second year___________________

third year_____________________.

fourth year________________________

fifth-year________________________________

sixth to tenth years, inclusive____________

eleventh to fifteenth years, inclusive_- ___ 

sixteenth to twentieth years, inclusive--__ 

twenty-first to twenty-fifth years, inclusive, 

twenty-sixth to thirtieth years, inclusive_ 

thirty-first to thirty-fifth years, inclusive_. 

thirty-sixth to fortieth years, inclusive--- 

forty-first to forty-fifth years, inclusive---., 

forty-sixth to fiftieth years, inclusive_____

ectric energy generated 

the following amounts

Cents.

.______________ 2 

.____________ 4

10

-I2i

15

17*

20

224

25

274

30

324

CLAUSE 3. From the gross operation charge for any ytar, calculated as aforesaid, deductions shall be made as follows:

(a) A sum bearing approximately the same ratio to one-half such gross operation charge as the area of unreserved lands and patented lands on the watershed furnishing the water stored, conducted, and/or used in the works for 

which permit is hereby applied for bears to the total area of the watershed, as 

of the beginning of each year.

(6) A sum bearing approximately the same ratio to one-half such gross operation charge as the length of the conduit for which permit is hereby applied for 

upon unreserved lands and upon patented lands over which a right of way for 

ditches and canals is not reserved by the act of August 30, 1890 (26 Stat, 391), 

bears to the total length of such conduit, as of the beginning of each year.

(c) A sum bearing approximately the same ratio to the balance 'remaining 

after said deductions " a ' and " 6 " as the quantity of electric energy generated 

from water stored artificially by the permittee over and above what is generated 

by the natural flow bears to all electric energy generated.
144 - PUBLIC UTILITY OF WATER POWERS.

The sum remaining after all the aforesaid deductions have been made shall 

be the net operation charge for such year.

Provided, That the term " unreserved lands," as above used in this clause, 

shall be deemed and taken to mean lands of the United States not reserved as a 

part of any national forest, and that this permit shall not affect such lands or 

restrict in any manner the right and duty of the United States to control the 

occupancy and use thereof through the department or officer lawfully charged 

with their custody or control.

Provided further, That the term "patented lands," as above used in this 

clause, shall include all lands to which title has been perfected in persons, 

corporations, States, and Territories; also all lands outside the United States.

Provided further, That the word " conduit," as used in this and other clauses 

of this permit, shall include ditches, canals, pipe lines, and all other means for 

the conveyance of a flow of water.

CLAUSE 4. The decision of the Forester shall be final as to all matters of fact 

upon which the gross operation charge for any year, the deductions for such 

year, and the net operation charge for such year depend.

CLAUSE 5. The permittee shall install and maintain in good operating condition, free of any expense to the United States, accurate meters and other 

instruments approved by the Forester, adequate for the measurement of the 

electric energy on which said gross operation charge is to be calculated, and 

accurate measuring weirs and other devices approved by the Forester, adequate 

for the determination of the quantity of water used in the generation of 

electric energy from the natural stream flow and, separately, the quantity of 

water stored by the permittee so used over and above the natural stream flow; 

and the permittee shall keep accurate and sufficient records, to the satisfaction 

of the Forester and free of any expense to the United States, showing the 

quantity of electric energy generated in each year, the quantity of water used 

in such generation of electric energy from the natural stream flow, and, separately, the quantity of water stored by the permittee so used over and above 

the natural stream flow; and the authorized agents of the Forest Service shall 

at all times have free access to the aforesaid meters, weirs, instruments, devices, 

and records of the permittee. In case the permittee fails for any year to so 

install and maintain such meters, weirs, instruments, and devices, and to keep 

such records, the Forester shall fix by estimate the amount of the gross charge 

and of the deductions for such year, using such information as he can readily 

obtain.

CLAUSE 6. If the United States shall hereafter, for permits of this nature 

in national forests, reduce the general scale of maximum rates below those 

above provided for in clause 2 hereof, or shall wholly abolish charges for permits of this nature, then and thereupon the charges to be calculated and fixed 

hereunder, as provided in clause 2 hereof, shall be reduced or abolished in like 

degree.

CLAUSE 7. The permittee shall pay to the United States depositary or officer, 

as above set forth in clause 2 hereof, the full value of all merchantable live 

or dead timber cut, injured, or destroyed in the construction of the said 

works, title to which, at the time of such cutting, injury, or destruction, is in 

the United States, according to the scale, count, or estimate of the forest officer 

in charge or other duly authorized officer or agent of the United States, such 

full value of timber cut, injured, or destroyed in the construction of said 

works shall be deemed and taken to be, and payment therefor shall be made in 

advance as required by such forest officer or other duly authorized officer or 

agent of the United States.
WATER-POWEE LEGISLATION IN UNITED STATES. 145

CLAUSE 8. The permittee shall dispose of all Drush and other refuse resulting 

from the necessary clearing of or cutting of timber on the lands occupied under 

the permit hereby applied for as may be required by the forest officer in charge.

CLAUSE 9. The permittee, its employees, contractors, and employees of contractors shall do all in their power, both independently and upon the request 

of the forest officers, to prevent and suppress forest fires.

CLAUSE 10. The permittee shall, on demand of the district forester or other 

duly authorized officer or agent of the United States, pay to the United States 

depositary or officer, as above set forth in clause 2 hereof, full value as fixed 

by such district forester or other duly authorized officer, for all damage to the 

national forests resulting from the breaking of, or the overflowing, leaking, or 

seepage of water from the works constructed, maintained, and/or operated 

under the permit.hereby applied for; and for all damage to the national forests 

caused by the neglect of the permittee, its employees, contractors, or employees 

of contractors.

CLAUSE 11. The permittee shall build new roads and trails as required by the 

forest officer or other duly authorized officer or agent of the United States to 

replace any roads or trails destroyed by the construction work or flooding under 

the permit hereby applied for, and to build and maintain suitable crossings as 

required by the forest officer, or other duly authorized officer or agent of the 

United States, for all roads' and trails which intersect the conduit, if any, constructed, operated, and/or maintained under the permit hereby applied for.

CLAUSE 12. The permittee shall within ______ months from the date of approval hereof, begin bona fide construction of the works for which permit is 

hereby applied for,* and shall, within ___ years from the date of said approval, complete such construction and begin to operate.said works for the purpose in clause 1 hereof set forth, unless the time is extended by written consent 

of the Forester; it being understood that such consent will usually be given 

only because of physical obstacles to construction, such as floods or engineering 

difficulties which could not reasonably have been anticipated.

CLAUSE 13. In constructing any dam or reservoir under the permit hereby 

applied for, the permittee shall follow the usual precautions in the ordinary 

methods of dam construction. This obligation, however, shall not be construed 

so as to relieve the permittee from any requirement of state law regarding the 

construction of dams and storage of water.

CLAUSE 14. The permittee shall sell electric energy to the United States 

when requested at as low a rate as is given to any other purchaser for a like 

use at the same time: Provided, That the permittee can furnish the same to 

the United States without diminishing the measured quantity of energy sold 

before such request to any other consumer by a binding contract of sale: Provided further, That nothing in this clause shall be construed to require the 

permittee to increase its permanent works or to install additional generating 

machinery.

CLAUSE 15. The permit hereby applied for shall be uontransferable (U. S. 

Rev. Stat., sec 3737) and shall be subject to all prior valid claims which are 

not by law subject thereto.

CLAUSE 16. No Member of or Delegate to Congress shall be admitted to any 

share or part of this agreement or to any benefit to arise thereupon. (U. S. 

Rev. Stat, sees. 3739 to 3742, inclusive.)

CLAUSE 17. No person undergoing a sentence of imprisonment at hard labor 

imposed by any court of the several States, Territories, or municipalities having 

criminal jurisdiction shall be employed in the performance of this contract. 

(Executive order, May 18, 1905.)

23321 No. 238 10 10
146 PUBLIC UTILITY OP WATEE POWERS.

CLAUSE 18. The permittee shall, except when prevented by the act of God or the 

public enemy or by unavoidable accidents or contingencies, continuously operate 

for the generation of electric energy the works to be constructed under the permit 

hereby applied for, in such manner as to generate after such generation begins 

not less than the following percentages of the full hydraulic capacity of the said 

works measured in kilowatt-hours: In the first year ____ per cent; in the 

second year ___ i>er cent; in the third year ___ per cent; in the fourth 

year ___ per cent; in the fifth year ____ per cent; and in every year thereafter ___ per cent.

CLAUSE 19. If any of the works for which permit is hereby applied for shall 

be owned, leased, trusteed, possessed, or controlled by any device permanently, 

temporarily, directly, indirectly, tacitly, or in any manner whatsoever so that 

they form part of or in any way effect any combination or are in anywise controlled by any combination, in the form of an unlawful trust, or form the subject of any contract or conspiracy to limit the output of electric energy or in 

restraint of trade with foreign nations or between two or more States or 

Territories or within any one State or Territory, in the generation, sale, or distribution of electric energy, the permit hereby applied for shall be forfeited 

to the United States by proceedings instituted by the Attorney-General of the 

United States in the courts for that purpose.

CLAUSE 20. The permit hereby applied for shall cease and be void upon the 

expiration of fifty years from the date of approval hereof, but it may then be 

renewed in the discretion of the duly authorized officer or agent of the United 

States and upon such conditions as he may in his discretion»fix: Provided, That 

such .officer or agent, in fixing such conditions, shall consider the actual value 

at that time for power and all other purposes of the lands and rights of way 

within national forests occupied and used under the permit hereby applied for 

and the actual value at that time of all improvements lawfully made by the 

permittee within national forests under the permit hereby applied for, but 

neither the property of the permittee, if any, outside of national forests, nor 

the permit, franchises, bonds, capital stock, or other securities of the permittee 

shall be considered in fixing such conditions.

CLAUSE 21. Nothing herein contained shall be construed to prevent the Forest 

Service from having the same jurisdiction over the lands above specified, including the issuance of further permits, as over other national-forest lands, 

not inconsistent with the occupation and use hereby applied for.

In witness whereof the permittee has executed this application in duplicate at 

________on this____day of___, 19__.

[SEAL.] By ___________________________________

President. 

Attest:

Secretary.

ACKNOWLEDGEMENT. 

STATE OF_________)

loo

County of________.J

On this___day of___, 19_, before me, a notary public in and for said 

county, duly commissioned and sworn, my commission expiring________, 

19_, 'personally came________, to me personally known, who being by me
WATER-POWER LEGISLATION IN UNITED STATES. 147

duly sworn, did depose and say that he resides in________; that he is the 

_ _of the____,___Company; that said company is the corporation which 

is described in and which executed the foregoing instrument; that he knows the 

seal of said corporation, that the seal affixed to such instrument is such corporate seal, that it was so fixed by order of the board of directors of said corporation, and that he signed his name thereto by like order; and the said 

_ ______acknowledged said instrument to be the free act and deed of said 

corporation.

Witness my hand and official seal the day and year first above written.

[NOTARIAL SEAL.] _________________________________________

Notary Public in and for____________County.

Approved________, 19_, and permission granted subject to the conditions 

set forth.

Forester. 

STATE LEGISLATION.

Several States have begun to realize the necessity for water-power 

legislation. New York, Pennsylvania, Oregon, and certain other 

States have laws on this subject, which, so far as they go, are of good 

purport. Their principal defect is that they do not confer upon the 

authorities sufficient initiatory powers. Progress, in these three 

States especially, may be expected in. the near future, but these isolated examples are not sufficient to establish a common policy. This 

country can not afford to be wise merely in spots. We will review 

briefly some of the state laws. 

i

PENNSYLVANIA.

A water-supply commission of five members was created in the 

State of Pennsylvania under an act approved in May, 1905. This 

act gave the commissioners authority to collect information relative 

to the condition of the water supply and provided that no letterspatent should be issued to any company desiring to be incorporated 

for the purpose of supplying water to the public until the application 

had first received the indorsement of a majority of the commission.

An act approved in June, 1907, increases the scope of the commission's powers by providing that no application for the charter of a 

corporation for supplying water to the public or for the development 

of storage or transportation of water power for commercial and 

manufacturing purposes shall be approved until the same has received 

the approval of the water-supply commission, or unless such application shall contain the name of the river, stream, or other body of 

water from which it is proposed to take or use water or water power. 

The act also provides practically the same requirements in the case of 

agreements for the merger or consolidation of two or more corporations for the same purposes, and further provides that said cor-
148 PUBLIC UTILITY OF WATEK POWERS.

porations, before merger, shall surrender all the rights theretofore 

existing to the Commonwealth. There is ji further useful requirement that safeguards the stockholders of {he companies proposing 

to consolidate, which provides that no such agreement of merger and 

consolidation shall be approved by said water-supply commission of 

Pennsylvania or by the governor until each of the corporations or 

parties thereto shall have placed in the office of the water-supply 

commission a written acceptance, under the seal of said corporation 

and authorized by a majority of the stockholders thereof, both of this 

act and of the act approved April 13,1905, entitled "An act providing 

that the right of eminent domain, as respects the appropriation of 

streams, rivers, or waters, or the lands covered thereby, shall not be 

exercised by water companies incorporated under law," agreeing to be 

subject to and bound by the provisions of both of said acts, with like 

effect as if said corporations had been formed subsequently to the 

passage of both of said acts.

Another section of the act provides that no sale, assignment, disposition, or transfer of any franchise of a corporation theretofore 

or thereafter formed for the supply of water or water power shall be 

valid until the same has been formally presented to the water-supply 

commission of Pennsylvania and has received its approval. It is 

further provided that 110 corporation for the supply of water or 

water power, formed or created subsequently to the passage of the 

act, or subject to its provisions, requiring new or additional source 

of supply, shall acquire the same until the facts have been placed 

befdre the commission, especially the facts concerning the necessity for. such new or additional source of supply, and have been approved by the commission and the governor, and a certificate has 

been issued.

The effect of the Pennsylvania law has been extremely beneficial 

to the State, and the commission and its agents have been able to collect a large amount of fundamental information that will in the 

future, as well as in the present, be of immense value to the people. 

The law now in force is merely a good beginning, and one of its 

principal benefits is to provide publicity of intent upon the part of 

water-power companies. Under it all the plans and proposals of 

development must be matters of public record, and a great advantage 

undoubtedly accrues by reason of the authority of the commission 

to deny its approval to plans and schemes that do not attain the 

standards established by the commission. Beyond this, however, the 

law does not go. It does not give to the commission the power to 

regulate rates at which power shall be furnished, nor does it establish any standard or classification of powers, such as is attempted 

under the French proposals. Undoubtedly, this development of the 

state power of regulation will be a matter of growth, and it is certain
WATER-POWER LEGISLATION IN UNITED STATES. 149

that in spite of these omissions of the law, the Commonwealth of 

Pennsylvania is far in advance of all but a few States of the Union 

in matters of water-supply regulation and the relation thereof to 

the public.

NEW YORK.

The State of New York has enacted laws concerning water powers 

which, while they do not extend in the same direction as those of 

Pennsylvania, are none the less praiseworthy. In one respect the 

New York laws are far in advance of any others in this country, for 

they recognize and establish the interests of the State in waterpower ownership and development.

The New York water-supply commission was originally constituted to control and regulate the establishment of municipal water 

supplies by municipal corporations or other civil divisions. The 

law provides that no such corporation shall have any power to 

acquire or take up lands for any new or additional sources of municipal water supply until plans, profiles, and specifications and a statement of needs for such supply shall have been approved by the commission. The law further provides an orderly course of procedure, 

by which these matters may be equitably adjudicated.

This commission was later given powers previously conveyed to 

a river-improvement commission, the object of which was to secure 

and provide means for the regulation of flow of water, the rectification of channels, and the making of reports on the best methods of 

accomplishing these purposes. This law gave to the commission 

an indirect relation to the water-power development of the State, but 

the final law, under which the commission is now acting, with reference to the development of water powers (chapter 5G9, laws of 1907) 

authorizes and directs the commission to devise plans for the progressive development of the water powers of the State, for public use 

under state ownership and control. The law directs that the commission shall proceed to collect information relating to the water 

powers of the State and shall devise plans for the development of 

such water powers as it deems available, and may devise plans for 

the development of such other water powers as shall be brought to 

its attention by the officers of municipalities. It further directs that 

detailed plans for such development shall be presented in reports 

made to the governor of the State, and that all other necessary information be furnished to enable the State to establish itself as a 

developer and owner of water power, for the public benefit.

The powers of the commission do not extend to the construction 

of reservoirs and water powers favorably reported on by it, a special 

act of the legislature being necessary in each case.

As in Pennsylvania, no power is conferred upon the commission to 

regulate the sale of water power, nor to control in any way the re-
150 PUBLIC UTILITY OF WATER POWERS.

lations between the owner of such power and the public which he 

serves with this utility. An indirect control may in some cases be 

effected if in the future the legislature shall provide for the construction of the storage works recommended.

The following statement a indicates clearly how the conditions impressed the members of the commission after they had expended a 

year in study of the subject under the guidance of one of the foremost engineers of the time. So general is the application of this 

statement that each of the States of the Union would do well to provide that copies of it be widely distributed among its citizens.

There are at this time opportunities for the State to acquire at a minimum 

cost the necessary lands and rights for the construction of large storage dams 

for the control of flood waters and for the development of water powers which 

can be made to yield generous returns to the people, if built, developed, and 

controlled by the State; but these same lands and rights will in a short time, 

like our forests, rapidly increase in price in the hands of private and corporate 

ownership. These valuable sites, like all natural resources, where nature has 

stored up immense treasure, grow more valuable each year as population becomes denser and the demand for their use increases.

We have only to look across our northern border to the Dominion of Canada 

to see how our mistakes in allowing private interests to acquire natural resources 

have been avoided by the statesmanship of the Dominion government. Another 

lesson may be learned from the policy of the Federal Government in obtaining 

a revenue from the national forests.

OREGON.

Two laws have recently been enacted by the legislature of Oregon 

relating to water rights, the beneficial use of water, and the development of water power. The first is an act providing a system for the 

regulation, control, distribution, use, and right to the use of water 

and for the determination of existing rights thereto within the 

State of Oregon, providing penalties for its violation, and appropriating money for the maintenance thereof and declaring an emergency. 

This law went into effect February 24, 1909. The second is an act 

providing for granting franchises of water power by the State and 

collecting fees therefor, in effect May 22, 1909.

The first law provides that, subject to existing rights, all waters 

within the State may be appropriated for beneficial use as provided 

therein and not otherwise, but nothing therein contained shall be 

so construed as to take away or impair the vested right of any person, 

firm, corporation, or association to any water. The State is divided 

into two water divisions, each under the charge of a superintendent, 

whose duties are to execute the laws relative to the distribution of 

water and to perform such other functions as may be assigned to 

him. He is vested with authority to make reasonable regulations to

« Third Ann. Kept. New York State Water-Supply Commission, 1908, pp. 300-301.
WATER-POWER LEGISLATION IN UNITED STATES. 151

secure the equal and fair distribution of water in accordance with 

the determined water rights.

The acts provide for the creation of a board of control, to consist 

of the state engineer and the superintendents of the two water divisions above mentioned, to which is given supervision of the waters 

of the State and their appropriation, distribution, arid diversion. 

Appeal from the decision of a superintendent of a water division is 

made to the board of control, and the decisions of said board are 

subject to appeal to the circuit and supreme courts of the State.

It is provided that on petition to the board of control, signed by 

one or more water users upon any stream requesting the determination of the relative rights of the various claimants to the waters of 

that stream, it shall be the duty of the board of control, if, upon 

investigation, it finds the facts and conditions are such as to justify 

intervention, to make a determination of said rights, and if suit is 

brought in the circuit court for a determination of rights to the use 

of water the case may, in the discretion of the court, be transferred 

to the board of control for determination. The act prescribes an 

orderly course of procedure in such cases, which includes suitable 

notice of proceedings, statements of claimants, taking of testimony, 

and all other features necessary to an equitable determination of the 

facts; provides for the entry of the decision of the board of control 

in the office of the county clerk of each county involved in the decision ; and further provides that water-right certificates shall be issued 

by the board of control to the parties to whom water rights are 

granted in any case.

The act provides further that water divisions shall be divided by 

the board of control into water districts, each under the charge of a 

duly appointed water master, who shall divide the water of the 

natural streams and other sources of supply among the several 

ditches and reservoirs according to the rights of each party, and it 

further vests such water masters with the necessary legal authority 

and power of arrest.

The procedure prescribed relative to the appropriation «of water 

within the State of Oregon is as follows:

SEC. 45. Application. Any person, association, or corporation hereafter intending to acquire the right to the beneficial use of any waters shall, before 

commencing the construction, enlargement, or extension of any ditch, canal, or 

other distributing or controlling works, or performing any work in connection 

with said construction, or proposed appropriation, make an application to the 

state engineer for a permit to make such appropriation. Any person who shall 

willfully divert or use water to the detriment of others without compliance 

with law shall be deemed guilty of a misdemeanor. The possession or use of 

water, except when a right of use is acquired in accordance with law, shall be 

prima facie evidence of the guilt of the person using it.

SEC. 46. Applications, nature of. Each application for permit to appropriate 

water shall set forth the name and post-office address of the applicant, the
152 ^ PUBLIC UTILITY OF WATER POWERS.

source of water supply, the nature and amount of the proposed use, the location 

and description of the proposed ditch, canal, or other work, the time within 

which it is proposed to begin construction, the time required for completion 

of the construction, and the time for the complete application of the water to 

the proposed use. If for agricultural purposes, it shall give the legal subdivisions of the land and the acreage to be irrigated, as near as may be. If 

for power purposes, it shall give the nature of the works by means of which the 

power is to be developed, the head and amount of water to be utilized, and 

the uses to which the power is to be applied. If for the construction of a 

reservoir, it shall give the height of the dam, the capacity of the reservoir, and 

the uses to be made of the impounded waters. . If for municipal water supply, 

it shall give the present population to be served and, as near as may be, the 

future, requirements of the city. If for mining purposes, it shall give the 

nature of the mines to be served, the methods of supplying and utilizing the 

water. All applications shall be accompanied by such maps and drawings, in 

duplicate, and such other data as may hereafter be prescribed by the board of 

control, and such accompanying data shall be considered as a part of the 

application.

SEC. 47. Applications, approval of. Upon receipt of an application it shall 

be the duty of the state engineer to make an indorsement thereon of the date of 

its receipt and to keep a record of the same.- If upon examination the application is found to be defective, it shall be returned for correction or completion, 

and the date of and reasons for the return thereof shall be indorsed thereon and 

made a record in his office. No application shall lose its priority of filing 

on account of such defects, provided acceptable maps and drawings are filed 

in the office of the state engineer within thirty days from the date of said 

return to the applicant. All applications which shall comply with the provisions of this act shall be recorded in a suitable book kept for that purpose, and 

It shall be the duty of the state engineer to approve all applications made in 

proper form, which contemplate the application of water to a beneficial use, but 

when the proposed use conflicts with determined rights, or Is a menace to the 

safety and welfare of the public, the application shall be referred to the board 

of control for consideration. It shall be the duty of the board of control to 

enter an order directing the refusal of such application, if, after full hearing, 

the public interest demands. An application may be approved for a less 

amount of water than that applied for, if there exist substantial reasons 

therefor, and in any event shall not be approved for more water than can be 

applied to a beneficial use. Applications for municipal water supplies may be 

approved to the exclusion of all subsequent appropriations, if the exigencies of 

the case demand, upon consideration and order by the board of control.

SEC. 48. Application, how indorsed. The approval or rejection of an application shall be indorsed thereon and a record made of such indorsement in the 

state engineer's office. The application so indorsed shall be returned immediately to the applicant by mail. If approved, the applicant (shall be authorized, 

on receipt thereof, to proceed with the construction of the necessary works, and 

to take all steps required to apply the water to a beneficial use, and to perfect 

the proposed appropriation. If the application is refused, the applicant shall 

take no steps toward the construction of the proposed work or the diversion 

and use of water so long as such refusal shall continue in force.

SEC. 49. Assignment of permit. Any permit or license to appropriate water 

may be assigned, subject to the conditions of the permit, but no such assignment shall be binding except upon the parties hereto, unless filed for record 

In the office of the state engineer.
WATEE-POWEE LEGISLATION IN UNITED STATES. 153

SEC. 50. Limitation on time of completing work. Actual construction work 

shall begin within one year from the date of approval of the application and 

the construction of any proposed irrigation or other work shall thereafter be 

prosecuted with reasonable diligence and be completed within a reasonable 

time as fixed in the permit, not to exceed five years from the date of such 

approval. The board of control shall, for good cause shown, extend the time 

within which irrigation or other works shall be completed, or the right perfected under any permit which may be submitted for its consideration by the 

state engineer.

SEC. 51. Appeals. Any applicant may appeal to the board of control for 

relief, which board may modify the decisions of the state engineer if it 

shall appear that he has abused the authority reposed in him by law. Such 

appeal shall be taken within thirty days from the date of such decision by 

the state engineer and shall be perfected when the applicant shall have filed 

in the office of the board a copy of the order appealed from, together with a 

petition setting forth the appellant's reason for appeal, and such appeal shall 

be heard and determined upon such competent proofs as shall be adduced by 

the applicant and such like proofs as shall be adduced by the state engineer. 

The state engineer shall not sit as a member of the board on such appeal.

SEC. 53. Water-right certificate. Upon it being made to appear to the 

satisfaction of the board of control that any appropriation has been perfected 

in accordance with the provisions of this act, it shall be the duty of the board 

of control to issue to the applicant a certificate of the same character as that 

described in section 25. Said certificate shall be recorded and transmitted to 

the applicant, .as provided in said section. Certificates issued for rights to the 

use of water for power development acquired under the provisions of this act 

shall limit the right or franchise to a period of forty years from date of 

application, subject to a preference right of renewal under the laws existing at 

the date of expiration of such franchise or right.

SEC. 54. Date of right. The right acquired by such appropriation shall 

date from the filing of the application in the office of the state engineer.

SEC 55. Head-gate, maintenance of. The owner or owners of any ditch or 

canal shall maintain, to the satisfaction of the division superintendent of the 

division in which the irrigation works are located, a substantial 'head-gate at 

the point where the water is diverted, which shall be of such construction that 

it can be locked and kept closed by the water master; and such owners shall 

construct and maintain, when required by the division superintendent, suitable 

measuring devices at such points along such ditch as may be necessary for the 

purpose of assisting the water master in determining the amount of water 

that is to be diverted into said ditch from the stream or taken from it by the 

various users. Any and every owner or manager of a'reservoir located across 

or upon the bed of a natural stream shall be required to construct and maintain, 

when required by the division superintendent, a measuring device of a plan 

to be approved by the state engineer, below such reservoir, and a measuring 

device above such reservoir on each or every stream or source of supply discharging into such reservoir for the purpose of assisting the water master or 

superintendent in determining the amount of water to which proprietors are 

entitled and thereafter diverting it for such appropriators' use. When it may 

be necessary for the protection of other water users, the division superintendent' 

may require flumes to be installed along the line of any ditch. If any such 

owner or owners of irrigation works shall refuse or neglect to construct and 

put in such head-gates, flumes, or measuring devices after ten days' notice, the 

division superintendent may close such ditch, and the same shall not be opened
154 PUBLIC UTILITY OF WATER POWEES.

or any water diverted from the source of supply, under the penalties prescribed 

by law for the opening of head-gates lawfully closed, until the requirements 

of the division superintendent as to such head-gate, flumes, or measuring device 

have been complied with, and if any owner or manager of a reservoir located 

across the bed of a natural stream shall neglect or refuse to put in such measuring device after ten days' notice by. the division superintendent, such superintendent may open the sluice gate or outlet of such reservoir and the same shall 

not be closed, under penalties of the law for changing 01 "interfering with headgates, until the requirements of the division superintendent as to such measuring 

devices are complied with.

SEC. 65. Water appurtenant to land for irrigation purposes. All water used 

in this State for irrigation purposes shall remain appurtenant to the land upon 

which it is used: Provided, That if for any reason it should at any time become 

impracticable to beneficially or economically use water for the irrigation of any 

land to which the water is appurtenant, said right may be severed from said 

land, and simultaneously transferred and become appurtenant to other land, 

without losing priority of right theretofore established, if such change can be 

made without detriment to existing rights, on the approval of an application of 

the owner to the board of control. Before the approval of such transfer an 

inspection shall be made by the proper division superintendent, who shall submit his report to the board of control, whereupon, by order, the board shall 

approve or disapprove such transfer and prescribe the conditions therefor. 

Such order shall be subject to appeal as in this act provided.

SEC. 66. Unlawful use of water and waste. The unauthorized use of water 

to which another person is entitled or the willful waste of water to the detriment of another shall be a misdemeanor, and the possession or use of such 

water without legal right shall be prima facie evidence of the guilt of the 

person using it. It shall also be a misdemeanor to use, store, or divert any 

water until after the issuance of permit to appropriate such waters.

SEC. 67. Obstructing works. Whenever any appropriator of water has the 

lawful right of way for the storage, diversion, or carriage of water, it shall be 

unlawful to place or maintain any obstruction that shall interfere with the use 

of the works or prevent convenient access thereto. Any violation of the provisions of this section shall be a misdemeanor.

SEC. 70. Vested rights preserved. 1. Nothing in this act contained shall 

impair the vested right of any person, association, or corporation to the use 

of water.

2. Actual application of water to beneficial use prior to the passage of this 

act by or under authority of any riparian proprietor, or by or under authority 

of his or its predecessors in interest, shall be deemed to create in such riparian 

proprietor a vested righ't to the extent of the actual application to beneficial 

use, provided such use has not been abandoned for a continuous period of two 

years.

3. And where any riparian proprietor or, under authority of any riparian 

proprietor or his or its predecessors in interest, any person or corporation shall, 

at the time this act is filed in the office of the secretary of state, be engaged 

in good faith in the construction of works for the application of water to a 

beneficial use, the right to take and use such water shall be deemed vested in 

such riparian proprietor: Provided, Such works shall be completed and said 

water devoted to a beneficial use within a reasonable time after the passage 

of this act. The board of control, in the manner hereinafter provided, shall 

have power and authority to determine the time within which such water shall 

be devoted to a beneficial use. The right to water shall be limited to the
WATER-POWEK LEGISLATION IN UNITED STATES. 155

quantity actually applied to a beneficial use within the time so fixed by the 

board of control.

4. Nor shall anything in this act contained affect relative priorities to the 

use of water between or among parties to any decree of the courts rendered in 

causes determined or pending prior to the taking effect of this act.

5. Nor shall the right of any person, association, or corporation, to take and 

use water be impaired or affected by any of the provisions of this act where 

appropriations have been initiated prior to the filing of this act in the office of 

the secretary of state, and such appropriators, their heirs, successors, or 

assigns, shall, in good faith and in compliance with laws existing at the time 

of filing this act in the office of the secretary of state, commence the construction of works for the application of the water so appropriated to a beneficial 

use, and thereafter prosecute such work diligently and continuously to completion, but all such rights shall be adjudicated in the manner provided in this 

act.

6. The board of control shall have authority, and shall for good cause, shown 

upon the application of any appropriate!' or user of water under an appropriation of water made prior to the passage of this act, or in the cases mentioned 

in subdivisions 3 and 5 of this section, where actual construction work has been 

commenced prior to said time or within the time provided in law existing at 

the time of filing this act in the office of the secretary of state, to prescribe 

the time within which the full amount of the water appropriated shall be 

applied to a beneficial use, and in determining said time shall grant a reasonable time after the construction of the works, or canal, or ditch, used for the 

diversion of the water, and in so doing shall take into consideration the cost 

of the appropriation and application of such water to a beneficial purpose, the 

good faith of the appropriate!', the market for water or power to be supplied, 

the present demands therefor, and the income or use that may be required to 

provide fair and reasonable returns upon the investment. Upon making such 

order the board of control shall direct the state engineer to issue a certificate 

showing such determination. For good cause shown the board of control may 

extend the time by granting further certificates.

7. And where appropriations of water heretofore attempted have been undertaken in good faith, and the work of construction or improvement thereunder 

has been in good faith commenced and diligently prosecuted, such appropriations shall not be set aside or avoided, in proceedings under this act, because 

of any irregular-ity or insufficiency of the notice by law, or in the manner of 

posting, recording, or publication thereof.

8. All rights granted or declared by this act shall be adjudicated and determined in the manner and by the tribunals as provided in this act. This act 

shall not be held to bestow upon any person, association, or corporation, any 

riparian rights where no such rights existed prior to the time this act takes 

effect.

SEC. 72. Eminent domain. The United States, the State, or any person, foreign or domestic corporation, or association may exercise the right of eminent 

domain to acquire for a public use any property or rights now or hereafter 

existing when found necessary for the application of water to beneficial uses, 

including the right to enlarge existing structures and use the same in common 

with the former owner. Any right of way so acquired shall be so located as 

to do the least damage to private or public property, consistent with proper 

and economical engineering construction. Such property or rights may be 

acquired in the manner provided by law for the taking of private property for 

public use.
156 PUBLIC UTILITY OF WATER POWERS.

The right to conduct water from or over the land of another for any public 

use, including the right to raise any water by means of dams, reservoirs, or 

embankments to a sufficient height to make the same available for the use 

intended, and the right to any and all land necessary therefor, may be acquired 

upon payment of just compensation in the manner provided by law for the 

taking of private property for public use.

The law providing for granting franchises of water power in the 

State of Oregon is as follows: °

An act providing for granting franchises of water power by the State, and

collecting fees therefor.

Be it enacted by the people of the State of Oregon:

SECTION 1. All water within the State from, all sources of water supply 

belong to the public.

SEC. 2. That every person, firm, or corporation, except municipal corporations 

(hereinafter called the appropriator), who shall appropriate water after the 

passage of this act for the purpose of applying the same to the development 

of power shall, during the life of such appropriation as fixed herein, pay to the 

State of Oregon not less than 25 cents or more than $2 per annum in advance, 

on or before the 2d day of January of each year, for each and every horsepower represented by the said appropriation. The amount of the payment shall 

be determined by the board of control and adjusted from time to time, based 

upon the percentage of power appropriated which is put to beneficial use. 

For the purpose of this act a horsepower is hereby defined to be 550 pounds of 

water per second of time for each foot of available fall.

SEC. 3. The appropriator shall pay to the board of control the fees required 

by section 2 of this act, proportionate to the remainder of the current year, and 

no appropriation of water for power purposes shall be deemed complete until 

such payment of fees is made. Immediately upon the receipt of such fees the 

board of control shall pay them over to the state treasurer, taking his receipt 

therefor, who shall place the same in the general fund of the state treasury. 

On or before the 2d day of January of each year thereafter every appropriator 

of water for power purposes shall forward to the board of control the fees 

provided for in section 2 of this act.

SEC. 4. Upon the completion of the appropriation of water for power purposes, as now or hereafter provided by law, and compliance with the provisions of this act, the appropriator thereof shall own and enjoy all of the uses 

thereof so long as he pays the annual fees therefor herein required, for a 

term not exceeding forty years from the date of appropriation, and shall have 

a preference right to inappropriate such water under such conditions'as may 

be prescribed by law at the expiration of such term of years provided all fees 

have been paid. If any appropriator shall fail to pay any annual fee, or 

shall fail or refuse to renew the appropriation at its expiration, the State shall 

have a preference lien therefor prior to all other liens or claims, except for 

taxes, upon the improvements of the appropriator for developing and applying 

such appropriation of water and the real estate upon which the same are located, 

and upon notice from the board of control the attorney-general shall* proceed to 

foreclose the lien and collect any unpaid fees in the same manner as other 

liens on real property are foreclosed, and the water shall be again subject to 

appropriation.

« Ch. 221. Laws of 1909 of the State of Oregon.
WATEE-POWEE LEGISLATION IN UNITED STATES. 157

SEC. 5. Any person, firm, or corporation who believes himself or itself injured 

in any material right by any decision of the board of control shall have the 

right of appeal from such decision to the circuit court for the county in which 

the proposed appropriation of water is situated.

SEC. 6. In case the board of control is not created by law with power to 

supervise the appropriation, distribution, and use of the water of the State, then 

the duties imposed upon the board of control as prescribed by this act shall 

devolve upon and be assumed by the state engineer.

Filed in the office of the secretary of state February 24, 1909.

OTHEE STATES.

Several other States of the Union have passed water laws which 

govern, in greater or less degree, the development of water power. 

Wyoming was the first State to enact a code of water laws, and Nebraska, Idaho, Utah, Nevada, North and South Dakota, Oklahoma, 

and New Mexico have laws that differ slightly but have the same 

purport. It will be unnecessary to review them, because the Oregon 

law, which is the latest, has already been quoted extensively.

CONCLUSIONS.

The water powers of this country have a higher ultimate significance than is generally conceded to them. They are certain to have a 

dominating effect upon the material progress and integrity of this 

Republic. In the Old World it has been decided to be a proper function of the Government to declare water powers of public utility 

and to place them under appropriate laws, the assumption being that 

the public has a dominant interest in the development of this great 

natural resource.

No one can safely predict the final form of laws to be enacted to 

this end. Whether they will lead to government ownership and control and whether, in this country, the State or the National Government shall control are matters for the future to determine. Our 

present form of government may prove to be all-sufficient in this respect. At least three European countries have found it necessary to 

make water power a national matter. This report is not to be considered as a plea for nationalization. The American author, at any 

rate, does not at present support that view, but he is impressed with 

the fact that necessity, and not legal precedent, must eventually direct 

the course of procedure. It can hardly be expected that when the 

necessity arrives it will be readily recognized and accepted. Acceptance will be postponed, at enormous cost, until the people can secure 

a clear vision above the mist of legal precedents. The great difficulty 

will not be to regulate water-power development and operation, but 

to convince the people that such regulation is necessary even though 

it may involve a change in our laws and our habits of thought.
158 PUBLIC UTILITY OF WATER POWERS.

The power sites of the West that are still in federal ownership 

present a suitable opportunity for the initiation of policies similar 

to those that have been found necessary in older countries. That the 

President of the United States appreciates this opportunity is indicated by the following extract from a special message on the conservation of natural resources, transmitted to the two Houses of 

Congress January 14, 1910:

With respect to the public land which lies along the streams offering opportunity to convert water power into transmissible electricity, another important 

phase of the public-land question is presented. There are valuable waterpower sites through all the public-land States. The opinion is held that the 

transfer of sovereignty from the Federal Government to the territorial governments as they become States include the water power in the rivers, except so 

far as that owned by riparian proprietors. I do not think it necessary to go 

into a discussion of this somewhat mooted question of law. It seems to me 

sufficient to say that the man who owns and controls the land along the stream 

from which the power is to be converted and transmitted owns land which is 

indispensable to the conversion and use of that power. I can not conceive how 

the power in streams flowing through public lands can be made available at 

all except by using the land itself as the site for the construction of the plant 

by which the power is generated and converted and securing a right of way 

thereover for transmission lines. Under these conditions, if the Government 

owns the adjacent land indeed, if the Government is the riparian owner it 

may control the use of the water power by imposing proper conditions on the 

disposition of the land necessary in the creation and utilization of the water 

power.

The development in electrical appliances for the conversion of the water 

power into electricity to be transmitted long distances has progressed so far 

that it is no longer problematical, but it is a certain inference that in the 

future the power of the water falling in the streams to a large extent will 

take the place of natural fuels. In the disposition of the domain already 

granted, many water-power sites have come under absolute ownership, and 

may drift into one ownership, so that all the water power under private ownership shall be a monopoly. If, however, the water-power sites now owned by 

the Government and there are enough of them shall be disposed of to private 

persons for the investment of their capital in such a way as to prevent their 

union for purposes of monopoly with other water-power sites, and under conditions that shall limit the right of use to not exceeding fifty years, with proper 

means for determining a reasonable graduated rental, and with some equitable 

provision for fixing terms of renewal, it would seem entirely possible to prevent 

the absorption of these most useful lands by a power monopoly. As long as 

the Government retains control and can prevent their improper union with 

other plants, competition must be maintained and prices kept reasonable.
INDEX.

A.

Page.

Agricultural improvement service, work of. 102-107 

Agriculture, rights of........................ 13

utilization of water by.................. 103

See also Irrigation.

Albuquerque Land Co., Gutierres v., case of. 118,119 

Altnow, Williams v., case of............... 117-118

Authorizations, definition of................ 45-46

See also Italy; Permits. 

B.

Baudin-Dupuy proposed law, nature of..... 77 

Baudin-Mlllerand proposed law, discussion of. 85-88

text of.................................. 85-92

Beck, Sturr »., case of....................... 122

Beneficial use, doctrine of................. 109,114

Oregon law on........................ 151-152

Berne, Switzerland, concessions in........... 56-58

Blen, Morris, on fees for dam construction. 132-134 

Broder v. Natoma Water Co., case of......... 130

C. 

California Debris Commission, taxing power

and............................. 134

Carpenter, Farm Investment Co. v., case of.. 118 

Coal, cost of, water-power charges based on.. 10 

Coal, white, definition of.................... 12

Colorado, Kansas v., case of............ 122-123,127

Commerce, control of, by United States Government. ...................... 125-136

Commissions, French, organization of........ 94-96

Competition, foreign, dangers from.......... 9-11

Concessions. See France; Italy; Switzerland. 

Consolidation, inevitableness of........... 7,21,158

progress of............................... 21

Consumer, burden on........................ 6

Corporations, abuses by..................... 5-7

Costs, basis of............................... 10

D. 

Dams, construction of, fees for............. 125-136

law for................................ 123-125

State control of....................... 125-136

government construction of............ 136-137

Dedication, nature of...................... 111-117

Desert-land act, application of, to lands bordering streams............. 110,120-121

effect of................................ 108-123

on riparian rights.................. 118-119

provisions of............................. 110

Ditches for irrigation, cost of................. 15,24

cost of, comparison of pumping cost and. 22-26

experiments in.......................... 14-16

limitations of............................ 25

Diversion. See Stream diversion.

Draining. See France.

Purance River, reservoirs on, problems of... 33-34

E.

Page.

Economic conditions, outline of............. 16-21

Electric transmission, consequences of.. 7-8,38,158 

early application of...................... 12

encouragement of, in France............ 97-98

laws governing................... 33,47-48,158

Elliot v. Fitchburg Railroad Co., case of... 128-129

Factories, regulation of...................... 102

Farm Investment Co. v. Carpenter, case of... 118 

Farmers Loan and Trust Co., Pollock v., case

of............................... 131

Fishing, rights of.......................... 114-115

Fitchburg Railroad Co., Elliot v., case of.. 128-129 

Foreign competition, dangers from.......... 9-11

Forest Service regulations, water power control by ........................ 139-147

France, authorizations in. See Permits.

concessions in... 43-44,61-63,64-74,82-84,86-91 

conservation in........................... 96

draining in...................... 98-99,103-104

electric transmission in.................. 97

factory regulation in..................... 102

farm buildings in...................... 105-106

governmental control in................. 39-42

75-76,77,80,85-89,96 

irrigation in............ 18,22-30,93-94,100-101

legislation for.................. 26-30,76,81

methods of.................... 14-16,25-26

lands in, redistribution of............. 104-105

legislation in................. 30-31,38-45,74-92

application of........................ 39-40

defects of............................ 40-42

reform of............................. 42-45

municipal supplies in............... 97,101-102

permits in....... 30-31,43,63,75-78,79-80,8S-89

public utilities in......... 61-63,74,82-84,85,86

riparian rights in........................ 37-41,

43,60-62,66-67,74-75,77-78,81-82,85-89 

power privileges and.... 38-41,43,46,60-62

soil improvement in..................... 106

streams in, classes of............ 60-61,74,78,93

improvement of.................... 99-100

regulation of............... 63-64,84-85,101

subsidies in.............................. 96-97

usages in.............................. 66,74-75

water-power developmentin............. 9,42

water-power plants in, classes of... 63,68,85,88 

establishment of............... 40-41,78-79

weather service in....................... 107

See also Hydraulic service; Agricultural

improvement service.

Frei Land Society, Switzerland, recommendations of.................... 53,59-60

159
160 INDEX.

G.

Page.

Gloucester Ferry Co. v. Pennsylvania, case of. 133 

Government, authority of. See France; Italy;

Switzerland; United States. 

Gutierres v. Albuquerque Land Co., case of. 118-119 '

H.

Hardin v. Jordan, case of.................... 127

Head, value of.............................. 19

Head Money cases, decision in............. 133-134

Horsepower, calculation of................... 18-19

Horsepower, storage of, in reservoirs......... 19

Hough, A. C., et al., v. Porter, S. A. D., et al.,

opinion in..................... 109-123

Hydraulic plants. See Water-power plants. 

Hydraulics and agricultural improvements,

bureau of: 

organization of ......................... 93-96

work of................................. 96-107

Hydraulic service, work of.................. 96-102

Hydro-electric properties, profits from....... 6

I.

Idaho, water laws in......................... 157

Illumination, power for...................... 20

Indian lands, laws concerning............. 114-116

Indians, fishing rights of................... 114-115

Industry, power for, demands of............. 20

Irrigation, effect of power diversions on...... 18

encouragement of............;........... 93-94

methods of........................ 14-16,25-26

power development and harmonization

of................................ 26-30

relations of.......................... 22-26

See also France. 

Italy, antimonopoly provisions in........... 50-51

authorizations and concessions in........ 45-47,

49-50,51-52 

rentals for, changes in............... 51

governmental control in.............. 47,49,52

legislation in.......................... 31,45-52

public waters in, classification of......... 45

water-power development in............. 9,42

progress of, conditions of............. 51

regulation of......................... 47-52

J. 

Jenison v. Kirk, case of.................... 129-130

Jordan, Hardin v., case of.................... 127

Jouart, M.,proposed law of.................. 77

K.

Kansas v. Colorado, case of............ 122,123,127

Kirk, Jenison v., case of................... 129-130

L.

Land grants, conditions of................. 111-116

Leases. See Concessions.

Lebrun, Albert, law proposed by............ 74-85

Legislation, remedial, need of............... 6

See also particular counties.

Leighton, M. O., introduction by............ 5

note by.................................. 59-60

on water-power legislation in the United

States......................... 108-158

M.

Page.

Manufacturing, power for, demands of....... 20

Mineral rights, locator of..................... 113

Monopoly, charges of........................ 32

charges of, basis of....................... . 10

creation of............................... 32

See also Consolidation. 

Municipal supplies. See France.

N. 

National forests, water powers in, regulation

of.............................. 139-147

National laws, discussion of............... 108-147

Natoma Water Co., Broder v., case of........ 130

Navigable streams, authority of national government over.............. 108,132-136

dams on, law on....................... 123-125

water powers on, regulation of......... 123-147

Navigation, meaning of....................... 133

Nebraska, water laws of..................... 157

Nelson, Knute, on fees for water power

dams.......................... 125-131

Nevada, water laws in....................... 157

New Mexico, water laws in................ 118,157

New York, legislation of .................. 149-150

storage proposed in...................... 150

North Dakota, water laws in................ 157

O.

Oklahoma, water laws of.................... 157

Oregon, eminent domain in................. 156

legislation in.......................... 150-157

water-power grants in............. 150,156-157

water regulation in.................... 150-156

See also Beneficial use. 

P.

Pennsylvania, Gloucester Ferry Co. v., case of 133

legislation of........................... 147-149

Permits, use of. See France; Italy.

Pollock v. Farmers Loan & Trust Co., case of. 131

Porter, S. A. D., et al., Hugh, A. C., et al., v.,

opinion in..................... 109-123

President Taft, message of................... 10

Prior application, doctrine of............ 108-110,

118-119,121-123,126-131

See also Beneficial use. 

Public control, basis of..................... 8

Public lands, authority of Government over 112-116

grants of, subject to prior usage........ 114-116

Public lands, water powers on, laws on.... 137-139

Public use, definition of..................... S

Public utility, laws of....................... 9,157,

nature of................................ 9,61

See also France. 

Public waters, classification of............... 45

Pumping for irrigation, cost of............... 23

cost of, comparison of ditch loss and..... 22-24

employment of....................... 14,24-26

Pyrenees, streams from, special problem of.. 33

R. 

Railways, water power used by.... 12-13,48-49,55

Regulation, arguments pro and con.......... 32-33

laws for................................. 30

See also particular countries.

necessity for............................. 7
INDEX. 161

Page.

Reservoirs, storage of, measured in horsepower. .......................... 19

Rhone River, irrigation from................ 34-35

Rights of way, laws concerning............ 137-139

Rio Grande Irrigation Co., United States v.,

case of.'............ 119,126-127,132-133

Riparian rights, existence and extent of.. 108-111, 

118-123,126-127,129-130 

See also France; United States; Prior application.

S. 

Soil, drainage of........................... 103-104

improvement of......................... 106

South Dakota, water laws of................ 157

Spring, use of............................. 116-117

States, control of water powers by, argument

for and against................ 126-136

water-power legislation by............. 147-157

See also particular States. 

Streams, classification of.................... 30,60

dams on. See Dams.

diversion of, for power purposes, effect

of............................ 17-18,39

flow of, investigation of....:............. 26-30

measurement of..................... 26-29

regulation of....................... 101-102

technical expression of............... 28

improvement of........................ 99-100

See also France. 

Sturr v. Beck, case of........................ 122

Switzerland, Cantons of, legislation in. 54,55,58-59 

concessions in..................... 56-58,60,86

governmental control in.............. 52-55,60

legislation in.......................... 31,52-60

water-power development in....... 9,42,58-59

T.

Tavernier, Rone1 , on French and foreign water-power legislation............. 37-73

on hydraulic power and irrigation....... 12-36

paper by................................

Taxation, powers of national government

over................... 130-131,133-135

Thomas v. United States, case of............. 131

U.

Underground water, pumping of............ 14

pii raping of, advantages of............... 24-26

cost of............................... 23-24

United States, water-power legislation in.. 108-158 

water development in................... 35-36

United States Government, authority of,

over streams............... 108-109,158

authority of, arguments for and against. 123-136

Page.

United States Government. See also 

Navigable streams; Desert-land 

law; National laws; State laws, 

dams built by......................... 136-137

riparian rights of.................. 108-109,158-

taxing powers of............... 130-131,133-135-

United States v. Rio Grande Irrigation Co.,

case of............. 119,126-127,132-133-

United States, Thomas v., case of........... 131

Use, public, definition of.................... &

Utah, water laws in......................... 157

W.

Water, storage of, benefits of................ 18-20-

utilization of.......................... 103,126-

Water, undergound. See Underground water. 

Water powers, comparison of, with transportation.......................... 8-9,17

cost of, regulation of.................... 1O

development of....................... 9,42,44

national regulation of............. 123-147

precariousness of.................... 6

investigation of......................... 26-30

legislation concerning, in national forests........................... 139-147

on public lands................... 137-139-

monopoly of............................ &

riparian rights and...................... 38-41

See also Riparian rights, 

sale of, by government................. 136-137

Water-power plants, classification of, in

France....................... 63,68,85

consolidation of.......................... 7

consequences of...................... 7,21

progress of........................... 21

development of.......................... 16-17

irrigation and harmonization of...... 26-30

relations of...................... 22-26

economic conditions governing........... 16-21

establishment of, obstacles to............ 40-41

horsepower of............................ 18-20

demands on......................... 20

profits from.............................. &

regulation of......................... 30-33,157

Water-power policy, nature of............... 157

recommendation for.................... 10,158-

Water rights, disputes over................. la

intervention of Government in. See

France; Italy; Switzerland, 

riparian owners and............ 37-38,41,43,46

Weather protection. See France.

White coal, definition of..................... 12

Williams v. Altnow, case of............... 117-llft

Wright, C. E., on fees for dam construction. 134-136 

Wyoming, water laws in.................. 118,157

o

23321 No. 238 id 11