The Bridgeport evening farmer., 1913-09-09

over the water power of the rapids and falls and cannot be required to pay any hypothetical additional value to a riparian owner who had no right to appropriate the current 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 qusl- flied one. It is a title which inherea in the ownership of the shore and. uu- less reserved or excluded by implica tion, passed with it as a shadow fol- lows a substance, although capable of distinct ownership. It is sdoofdtnate to the public right of navigation, ands 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 navtgable rivers. That power of use and control comes from the power to regulate commerce between the States and with foreign nations. It includes navigation, and subjects every navi- gable river to the control of Congress All means having some positive reia- ton to the end in view which are not forbidden by some other provision of the Constitution are admissible.
 eff the Judgment of Congress. the use of the bottom of the river is proper for the purpose of placing therein structures in aid of navigation, 1t is not thereby taking private prop erty for a public use, for the owners title was in it's very nature subject to that use in the interest of public nav igation. If it's Judgment be that struc- lures placed in the river and upon such submerged land are an obstruc- ton or hindrance to the proper use r-A ton, it may require their removal and forbid the use of the bed of the river by the owner in any way which in it's judgment is injurious to the dominant right of navigation. So, also, it may permit the construction and mainten- ance of tunnels under or brfd ges over the river, and may require the re- moval of every such structure placed there with or without its license, the element of contract out of the way. which it shall require to be removed or altered as an obstruction to naviga- tion."
 Another matter settled by this decis- ion-the importance of which will be increasingly evident as time goes on is the right of the Government not on ly to use for it's own purposes any eX- cess of water power which results from works which the Government may construct in the improvement of navigable rivers, but to sell. lease or otherwise dispose thereof to other par ties. The Chandler-Dunbsr Water Power Company claiming that such use of water not actually needed for navigation would be a taking of prl- vate property for commercial uses and not for the improvement of naviga- ton, 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 Nfr@I1 HagT TH Amaa HamHm for the purpose of having the water power developed. either for the direct use of the United States or by lsaae through the Secretary of War, says
 ''If the primary purpose is Iegiti-
 mate, we can see no sound objection to leasing any excess of power over the needs of the Government The practice is not unusual in respect to similar public works constructed by State Governments. In Kau3xauna Go vs. Green Bay, etc. Canal (142 .. S. 254,273), respecting a Wisconsin act to which this objection was made the court said:
 "Buf if, in the erection of a pub lie dam for a recognized public pur- pose. there is necessarily produced a surplus of water which may properly be used for manufa curing purposes, there is no sound reason why the State may not retain to itself the pow CT of controlling or disposing Of such water as an incident of it's right to make such improvement. Indeed, it {. might become very necessary to re- l tain the disposition of 1t in Its own hands in order to preserve at all times a sufficient supply for the purposes Of navigation. If the riparian owners were allowed to tap the pond at dif- ferent places and draw off the water for their own use, serious .consequen- ces might arise not only in connection frr poses of navigation but between the riparian owners themselves as to the proper proportion each was entitled to draw-controversies which could only be avoided by the State reserving to itself the immediate supervision Of the entire suppIpy. As there is no need of the surplus running to waste, there was nothing objectionable in permit ting the State to let out the use of it to private parties and thus reimburse itself for the expenses of the trn- provement."
 That the right to derive a revenue from the sale of water power will have "a most important bearing upon the development of the great connect ed system of waterways advocated by the National Rivers and Harbors Con- gress would seem to be beyond an doubt or question It Is easy to see that it may operate both to hasten the completion of works already pro jected and allow the extension of nav igatfon to portions of streams which would otherwise remain unutilized be- cause the expense of improvement would be so great as to be prohibitory. It is probable that this far-reaching decision will be the subject of an in- teresting discussion at the Tenth Con ventfon of the National Rivers and Harbors Congress. which is to be held in this city in Decem Der next