The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-09-01
sion of the constitution are admis
Paramount Rights.

IF on the Judgment of congress, the
use of the bottom of the river is pro-
| per for the purpose of placing therein
structures in aid of navigation, it is
! not thereby taking private property for
a public use, for the owners title was
in it's very nature subject to that use
in the interest of public navigat ton. IT
/ it's Judgment be that structures placed
in the river and upon such submerged
land are an obstruction or hindrance
to the proper use of the river for pur-
poses of navigation, it may require
their removal and forbid the use OF
the bed of the river by the owner in
any way which in its judgment is in
furious to the dominant right of navi-
cation. So. also. it may permit the
construction and maintenance of tun-
nels under or bridges over the river,
and may require the removal of every
such structure placed there with or
without it's license, the element of con-
tract out of the way, which it shall
require to be removed or altered as an
obstruction to navigation
Another matter settled by this de-
cision-the Importance of which will
be increas ingly evident as time goes on
is the right of the government not
only to use for it's own purposes any
excess of water power which results
from works which the government may
construct in the Improvement of navi-
gable rivers. but to sell, lease or other
wise dispose thereof to other parties.
The Chandler-Dunbar Water Power
company claimed that such use of wa
ter not actually needed for navigation
would be a taking of private property
for commercial uses and not for the
Improvement of navigation but the
court, after pointing out that the 18th
section of the act of 1909 declares that
conservation of the flow of the river,
While primarily for the benefit of nav
igatiOn. is incidentally for the purpose
of having the water power developed,
either for the direct use of the United
States or by lease through the secre-
tary of war, says:
IF the primary purpose is legitimate,
we can see no sound objection to leas-
ing any excess of power over the needs
of the government. The practice is not
unusual in respect to similar public
works constructed by state govern
mentS- In Kaukauna Co. vs.. Green
Bay. etc. Canal 142 L. S. 254 273) re-
speeding a Wisconsin act to which this
objection was made, the court said:
Surplus Belongs to State.
But if. in the erection of a public dam
Tor a recognized public purpose, there is
necessarily produced a surplus of water
which may properly be used for manu-
featuring purposes. there is no reason
why the state NAV not retain to itself the
power, of controlling disposing of such
water as an incident of it's right to make
such Improvement. Indeed, it might be-
come very necessary to retain the dis
position of it in its own hands in order
to preserve at all times a sufficient sup
ply for the purposes of navigation. If the
riparian owners We're allowed 10 tap the
pond at different places and draw off the
water for their own use, serious conse
quences might arise not only in connection
with the public demand for the purposes
of navigation but between the riparian
owners themselves as the proper proper
ton each was entitled to draw-contro-
versies which could only be avoided by
the state reserving to itself the immediate
supervision of the entire supply As there
Is 70 need of the surplus running to
waste there was nothing Objectionable in
permitting the state to let out the use of
to private parties and thus reimburse
itself for the expenses of the improve
me-t'
That the right to derive revenue from
tie sale of water power will haye a most
important bearing upon the development
of the great connected system of water