Stanley Forman Reed

“ I am of opinion that the judgment of the Circuit Court of Appeals should be affirmed, first, because this court ought to respect and give effect to such concurrent findings which have substantial support in the evidence; secondly, because the evidence will not support contrary findings if the navigability of New River be tested by criteria long established.
1. A river is navigable in law if it is navigable in fact. [95] Indeed the issue of navigability vel non is so peculiarly one of fact that a determination as to one stream can have little relevancy in determining the status of another. ”

“ A waterway, otherwise suitable for navigation, is not barred from that classification merely because artificial aids must make the highway suitable for use before commercial navigation may be undertaken. Congress has recognized this in section 3 of the Water Power Act by defining 'navigable waters' as those 'which either in their natural or improved condition' are used or suitable for use. The district court is quite right in saying there are obvious limits to such improvements as affecting navigability. ”

“ When once found to be navigable, a waterway remains so. [27] This is no more indefinite than a rule of navigability in fact as adopted below based upon 'useful interstate commerce' or 'general and common usefulness for purposes of trade and commerce' if these are interpreted as barring improvements. [28] Nor is it necessary that the improvements should be actually completed or even authorized. The power of Congress over commerce is not to be hampered because of the necessity for reasonable improvements to make an interstate waterway available for traffic. ”

“ The fact that the Commission is willing to give a license for a power dam only is of no significance in appraising the type of conditions allowable. It may well be that this portion of the river is not needed for navigation at this time. Or that the dam proposed may function satisfactorily with others, contemplated or intended. It may fit in as a part of the river development. The point is that navigable waters are subject to national planning and control in the broad regulation of commerce granted the Federal Government. ”

“ This power of Congress to regulate commerce is so unfettered that its judgment as to whether a structure is or is not a hindrance is conclusive. Its determination is legislative in character. [76] The Federal Government has domination over the water power inherent in the flowing stream. It is liable to no one for its use or non-use. The flow of a navigable stream is in no sense private property ”

“ It has been shown, note 77, supra, that there is no private property in the flow of the stream. This has no assessable value to the riparian owner. If the Government were now to build the dam, it would have to pay the fair value, judicially determined, [89] for the fast land; nothing for the water power. [90] We assume without deciding that by compulsion of the method of acquisition provided in section 14 of the Power Act and the tendered license, these riparian rights may pass to the United States for less than their value. ”

“ Fourteen authenticated instances of use in a century and a half by explorers and trappers, coupled with general historical references to the river as a water route for the early fur traders and their supplies in pirogues and Durham or flat-bottomed craft similar to the keelboats of the New, sufficed upon that phase in the case of the DesPlaines. [55] Nor is lack of commercial traffic a bar to a conclusion of navigability where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial navigation. ”

“ The possibility of other uses of the coercive power of license, if it is here upheld, is not before us. We deem the pictured extremes irrelevant save as possibilities for consideration in determining the present question of the validity of the challenged license provisions. ”

“ The Commonwealth objects that the development of its water power resources is subjected to Federal Power Act requirements such as are detailed above in stating the respondent's objection, even to the point that Virginia itself may not build and operate a dam in navigable water without authorization and regulation by the Federal Government. ”

“ From that point it flows first in a northeast and then in a northwest direction something over 250 miles to Kanawha Falls, West Virginia. It passes through Allisonia and Radford, Virginia, and then Hinton, West Virginia. It is joined by many tributaries, the largest of which is the Gauley. At Kanawha Falls, it changes its name to the Kanawha, a navigable river of commercial importance which joins the Ohio 97 miles below. The whole territory traversed by the New is broken and mountainous. Between Hinton and Kanawha Falls, the river is swift and the gorge precipitous. ”

“ Throughout the river there is an abundance of water, and the respondent hardly denies that the flowage suffices if other conditions make the New available for navigation. [42]
It will conserve discussion to appraise the navigability of the 111-mile stretch between Allisonia and Hinton in three sections which together form the whole reach between these points: the 28 miles from Allisonia to Radford, which the United States improved between 1876 and 1883; the 59-mile stretch from Radford to Wiley's Falls, Virginia, never improved except at Wiley's Falls itself ”

“ To predetermine, even in the limited field of water power, the rights of different sovereignties, pregnant with future controversies, is beyond the judicial function. The courts deal with concrete legal issues, presented in actual cases, not abstractions. ”

“ The petitioner suggests that consideration of the validity of section 14, the acquisition clause, and the license conditions based upon its language are properly to be deferred until the United States undertakes to claim the right to purchase the project on the license terms fifty years after its issuance. ”

“ Even in miles where the declivity is rapid, the fall is apparently largely in sections containing obstructions. For instance, the 51st mile reads 'Rapid, over bowlders and gravel, 1,500 feet long; fall, 8 1/2 feet,' and the 100th mile 'Neilley's Falls and rapids; whole fall, 11 feet, 6 of it nearly vertical. A sluice 500 feet long, along left bank, will pass them, with 50 feet of rock excavation and 450 feet of bowlders and gravel.' Quite frequently where the fall is moderate, other obstructions appear, as the 78th mile 'Rapids, 500 feet long, over bowlders and gravel ”

“ United States, 177 U.S. 621, 20 S.Ct. 797, 44 L.Ed. 914, where a judgment on a jury's verdict was reversed for error in the judge's instructions as to the criteria of navigability; Economy Light Co. v. United States, 256 U.S. 113, 117, 41 S.Ct. 409, 410, 65 L.Ed. 847, where the court did not re-examine the facts but affirmed the judgment of the Circuit Court of Appeals, as that court had correctly applied the test laid down in The Daniel Ball, 10 Wall. ”