Evening star., 1940-12-16
New River
Continued From First Page.)

type Of conditions allowable. It
may well be that this portion of the
river (where the dam Is located is
not needed for navigation at this
time. Or that the dam proposed
may function satisfactorily with
others, contemplated or intended.
The point is that navigable waters
are subject to national planning
and control in the broad regulation
of commence granted the Federal
Government"
Tremendous Importance in Case.
The Federal Power Commission
had looked on the case as of tre-
mendous Importance because there
are so many streams like New River
through the country. The Govern
ment lost in the lower courts in a
move to enjoin the project.
The navigability issue was stressed
in the dissent by Justice Roberts.
Justice Roberts said concurrent
findings that the stream was naviga-
BILE had been made by the two lower
courts and that the Supreme Court
Ought to respect and give effect to
such concurrent findings which have
substantial support in the evidence"
He added the evidence will not sup
port contrary findings If the naviga-
bility of New River be tested by
criteria long established" He am
plified that "the evidence supports
indeed, think it requires-a finding
that applying accepted criteria New
River is not and never has been
navigable."
The Government based the con-
tention of navigability on the fact
that keel boats had ferried freight
along the shallow rocky stream
many years ago and that Congress
had spent about $4,000 in i'm
proving two sections Of the river
between 1876 and 1882. It was also
argued that 1t was q highway for
interstate commerce because
waterfall connection was possible.
The courts opinion specifically
upheld that point of the Govern
ment's argument Justice Reed said
that 1t was not necessary that the
use of the river for commercial pur-
poses should have been continuous
to determine its navigability.
Right to Determine Value.
Under the so-called major part
license which the company now will
be required to obtain from the Fed
eral Power Commission the Govern
ment will have the right to deter
mine the value of the project and
provide for amortization reserves
which will affect the recapture price
at which the Government can take
over the property at the end of the
50-year period. On this point the
court said:
"The license conditions to which
objection Is made have an obvious
relationship to the exercise of the
commerce power. Even If there were
no such relationship the plenary
power of Congress over navigable
waters would empower 1t to deny
the privilege of constructing an OBJ
struction in these waters. It may
likewise grant the privilege on terms.
1t is no objection to the terms and
to the exertion of the power that
its exercise is attended by the same
incidents which attend the exercise
of the police powers of the States.
The congressional authority under
the commerce clause is complete
unless limited by the fifth amend
ment.
Question of Fair Value.
"The respondent urges that as
riparian owner with State approval
Of its plants, it is entitled to freedom
of the development of its property
and particularly cannot be COM
PEELED to submit to the acquisition
clause with a price fixed at less
than a fair value, in the eminent
domain sense, at the time Of taking.
Such q taking, 1t is contended,
would violate the nth amendment.
| It Is now q question whether the