The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-09-01
HITS A MONOPOLY
Supreme Court Decision in a
Water Power Case.
Deals Death Blow to Trust
Control of Streams.
THE STATE RETAINS CONTROL
OF All Rights That Are Not
Specifically Granted.
Even to the Source and Bed
of River. 5.
THE STATE RETAINS CONTROL


Washington, D.. c., Sept IA SUI
preme court decision which win cut
the claws of any water power trust,
whether present or prospective, and
may finally carry the control of the
federal government over waterways
clear to the spring house on the farm
and the trout. brook in the mountains
a decision which with one stroke of the
pen wiped out aH@title to property for
which a value of $3450, 900 was claimed
and an award of s550,O00 had been made
by lower court--seems to have, been
almost entirely overlooked by the press
of the country.
Not since the far-reaching and
epoch making opinion of Chief Justice
Marshall. delivered nearly ninety years
ago in the case of Gibbons VS.. Ogden,
which has come to be considered by
bench and bar the leading case on the
powers granted by the commerce
clause of the constitution. has Il more
important opinion relating to water
ways been handed down by the su-
preme court than the one rendered in
the case of the United States VS.. Chan
dler-Dunbar Water Power Co.
The government found it necessary
to condemn the property of the Water
Power company in order to provide for
the astounding growth of commerce at
locks are already in use, two on the
American side and one on the Cana
dian. During 1912 there We're carried
through these locks 72472, go tons of
freight. and the indications are that
this amount will be largely exceeded
this year. To provide for the further
increase of tonnage which is certain to
come, third American lock, 1850 feet
long and so feet wide, is now under
construction and will be opened for
traffic in 1914. and fourth lock of the
same dimensions has already been au-
thorized
Federal Control.
Senator Theodore E. Burton, who for
years was chairman of the rivers and
harbors committee of the house of rep
resentatives and is not member of
the commerce committee of the upper
branch of tho national legislature and
an authority upon the naVigable wa
terWays of the country. believes that
the decision of the supreme court ''sus-
tains the views of the most advanced
advocates of federal control of water
power. 1t establishes not merely the
paramount coI1sTef of the federal gov
eminent for purposes of naViga ton, but
also the right OF congress to control
and dispose pot zsuch water power as
may be developed in the Improvement
of. naviga ton In view of other deci-
sions it would seem beyond question
that such control extends not only to
the navigable portion of rivers but to
every reach of a stream and its trib-
utarieS. even to their source.
The decision will undoubtedly af-
ford the strongest impulse to the
movement for the development of
water power, and that. too, under
conditions such that this invaluable
asset will not become monopolized,
but be retained for the use of the
people in the industrial and domestic
life of the country.
1t was Senator Burton's further
opinion that the decision makes the
federal goVernn. ent supreme in the
harmonious development of water
courses, especially when they form or
cross the boundaries of states, to pre-
vent monopoly of water power en-
terprises and to exercise control over
rates of service when necessary, par
ticula~ly when the business becomes
Interstate in character
The water power of the country"
said Senator Burton. lis an asset of
a value beyond the dreams of avarice
and it may be confidently expected
that. as the coal supply which is
readily available is diminished. it will
assume it's naturally potential place
in the industrial and domestic life of
the country"
History of the Case.
The case of the United States VS..
L
pany turned upon the question
whether the Chandler-Dunbar Co
had any private property in the wa
ter power capacity of the rapids and
falls of the ST. Mary's river in the
state of Michigan. Justice Lurton,
in delivering the unanimous opinion
of the court. which is believed by
many eminent lawyers to be as vital
in its way as was the opinion OF
Chief Justice Marshall in the case of
hn16 hot tIoe
Chandler Dunbar company. as ri
parian owners, had no vested prop
erty right in the water power in
herent in the falls and rapids of the
river, and no right to place in the
river the works essential to any prac-
teal use of the flow of the river.
and the government cannot be justly
required to pay for an element of
value which did not inhere in these
parcels as upland. The government
of the rapids and falls and cannot
be required to pay any hypothetical
additional value to riparian owner
who had no right to appropriate the
to his own use
Further along in the opinion, and
this is the crux of the decision. JUS
tice Lurton said:
THE title of the owner of fast
land upon the shore of a naVigable
river to the bed of the river is at
best a quan1leO one 1t Is Il llIle .
which inheres in the ownership of
the shore land. unless reserved or
excluded by implication, passed with
it as shadow follows a substance, !
although capabl of distinct owner
ship. 1t is subordinate to the public
right of navigation, and. however
helpful in protecting the owner
against the acts of third parties, is
of no avail. against the exercise of
the great and a absolute power of con- /
gress over the improvement of nay t
igable rivers. That power of use and :
control comes from the power to reg
ulate commerce between the states t
and with foreign nations 1t includes 1