The daily Gate City. [volume] (Keokuk, Iowa) 1855-1916, 1913-09-12
Federal Water Riahts.

Federal Water Rights.
Sioux City Journal: A United States
supreme court decision that received
little attention when rendered is now
cited by Senator Theodore Burton as
completely confirming the absolute
control of the federal government
over navigable waterways, water
power included, from mouth to source.
The case was one in which the fed
eral government found it necessary to
condemn the property of the Chand-
ler-Dunbar Water Power company.
This property was needed to permit
the construction of another lock on
the American side at the outlet Of
Lake Erie. Incident to the condem-
nation proceedings the Chandler-Dun-
bar company set up the claim to
private water right in the falls of the
st. Mary's river, and claimed compen-
sation to the amount of S3.450,000 for
its loss. That the company had some
rights in the premises was conceded
by the lower court in which an .awara
OF $550,000 damages was made. The
final ruling by the supreme court an
nulled the damages awarded by the
lower court and completely wiped out
the claimed water power rights of the
company.
The supreme court opinion. by JUS
tice Lurton, as now quoted by Sena-
tor Burton, seems to clear up some
points that have been much in dis
| cussion in connection with the quesp
ton of water power conservation. AS
to the question of control Of the water
power, sinvolving the main issue. Judge
Lurton held that the riparian owners
had mo vested property right in the
| falls and rapids of the river: and no
! right to place IN the river the works
essential to any practical use OF the
/ flow of the river. and the government
cannot be justly required to pay for
4 an element of value which did not in
! here In these parcels as upland" If
this were not direct enough Justice
Lurton added: "The government had
dominion over the water power of the
4 rapids and falls and cannot be re-
CURED to pay any Hypothetical addi-
tional value to a riparian owner who
had no right to appropriate the cur
rent to his own use.'
On the question OF the rieht of the
! riparian owner to control the bed OF
4 the stream Justice T.urton expressed
the opinion of the court as follows:
"The title of the owner of land up-
On the shore of navigable river to
j the bed Of the river is at bess a quail.
! fed one It Is title which inheres
4 in the ownership of the shore. and
unless reserved or excluded by in1pli-
cation passes with it IS shadow fol-
lows substance Although capable
OF distinct ownership, it is subordin-
ate to the public right CT navigation
and however helpful in protecting the
owner against the acts of third par
ties, Is Of no avail against the exer.
else OF the great and absolute power
! OF CONGRESS over the improvement of
navigable rivers. That power of use
and control comes from the power to
regulate commerce between the states
and with foreign nations"
1t follows, OF course, that II the
rights OF the riparian owners are thus
subordinated to the federal NAVIGATION
interests the rights Of the state to
regulate water power must be SINH
larry subordinated
The question whether the fed. raj
4 government has the right to develco
and lease water power in connection
with works intended primarily for
navigation also was raised by the de-
PENDANT company in this case. The
company commended that the use of
water not actually needed for nayiga-
ton would amount to the taking of
private property for commercial uses.
AS to this the court speaking through
Justice Lurton said "Jf the primary
object is legitimate we can sec no
legitimate objection to leasing any
excess Of power over the needs of the
government"
The whole effect of the decision as
Interpreted by Senator Burton is to
give congress the right to set the pace
In water power conservation by devel.
oping and leasing power in connec.
ticn with works in the interest of nav.
igation. 1t is the Ohio senator's con
tention that the federal control over
navigable steams extends not only to
the navigable portion. but to every
reach of stream and its tributaries
even to their source. It is his nre.
diction that the new definition of fed.
eral rights will serve as strong
stimulant to the development of water
power under rational regulation in
II in.ereat Of the nublic.