Republican River

“ In connection with this I would also recommend the encouragement of a canal for purposes of irrigation from the eastern slope of the Rocky Mountains to the Missouri River. As a rule I am opposed to further donations of public lands for internal improvements owned and controlled by private corporations, but in this instance I would make an exception. Between the Missouri River and the Rocky Mountains there is an arid belt of public land from 300 to 500 miles in width, perfectly valueless for the occupation of man, for the want of sufficient rain to secure the growth of any product. ”

“ When an objection has been made to an appropriation for clearing the snags out of the Ohio River, I have answered it with the question, “Would you not vote for an appropriation to clear the Atlantic Ocean of snags, were the navigation of your coast thus obstructed? The people of the West contribute their portion of the revenue to fortify your sea-coast, and erect piers, and harbors, and light-houses, from which they derive a remote benefit, and why not contribute yours to improve the navigation of a river whose commerce enriches the whole country?” ”

“ Examining the affidavits and other evidence introduced in this case, it is clear to us that the Rio Grande is not navigable within the limits of the territory of New Mexico. The mere fact that logs, poles, and rafts are floated down a stream occasionally and in times of high water does not make it a navigable river. ”

“ But there is no constitutional reason why Congress or the courts should be blind to the engineering prospects of protecting the nation's arteries of commerce through control of the watersheds. There is no constitutional reason why Congress cannot under the commerce power treat the watersheds as a key to flood control on navigable streams and their tributaries. Nor is there a constitutional necessity for viewing each reservoir project in isolation from a comprehensive plan covering the entire basin of a particular river. We need no survey to know that the Mississippi is a navigable river. ”

“ That if these reservoirs are so constructed by Colorado, vast and enormous quantities of water which would otherwise flow into the state of Kansas will be taken and held and sold and used for the irrigation of arid and nonriparian lands not now irrigated, and will be forever lost to the river and the state of Kansas, which will cause in Kansas in said valley a vast and ruinous decline in agriculture, and great diminution of the wealth and revenues of the state, and in its population and prosperity. ”

“ It is to be observed, as preliminary to an examination of the acts of the general government in the special matter before us, that the whole system of river and lake and harbor improvements, whether on the sea-coast or on the lakes or the great navigable rivers of the interior, has for years been mainly under the control of that government, and that, whenever it has taken charge of the matter, its right to an exclusive control has not been denied. ”

“ We disagree, however, with the Master's holding that the Secretary is powerless to charge States for diversions from the mainstream above Lake Mead. What Congress was doing in the Project Act was providing for an apportionment among the Lower Basin States of the water allocated to that basin by the Colorado River Compact. The Lower Basin, with which Congress was dealing, begins at Lee Ferry, and it was all the water in the mainstream below Lee Ferry that Congress intended to divide among the States. ”

“ The United States contends that Nebraska's equitable share of natural flow water should be limited to that which is in fact being diverted and used by any or all of the designated canals within the specified limitations in acre-feet and second-feet. It is said that these provisions of the proposed decree are the operative provisions which determine the amount of natural flow to be passed into the Whalen-Tri-State Dam section of the river. ”

“ We see no reason why the same principle should not apply to cases where the state legislature, exercising its police power, directs a certain dam to be built, and thereby incidentally impairs access to lands above the dam. In both cases the soverign is exercising its constitutional right,-in one case in improving the navigation of the river, and in the other, in draining its lowlands, and thereby enhancing their value for agricultural purposes. ”

“ Because of this, there is a temptation for those who undertake such study and planning to assume that river basins have, or ought to have, human unity as well—unity in politics, economics, and culture—with a consequent "basin public" inclined to think in basin terms. Basin identity of this sort would facilitate conservation, development, and management. It would "make sense," and clearly enough a a great deal of sense needs to be made, and soon, if people are going to have any hope of balancing their use of resources against the inevitable continuing requirements of the long future. ”

“ If this be so the river is navigable in fact, although its navigation may be encompassed with difficulties by reason of natural barriers, such as rapids and sand-bars.'
The government invites a comparison with the conditions found to exist on the Rio Grande river in New Mexico, and the Red river and the Arkansas river, above the mouth of the Grand river, in Oklahoma, which were held to be nonnavigable, but the comparison does not aid the government's contention. Each determination as to navigability must stand on its own facts. ”

“ Although, in view of the conclusion just stated, it is unnecessary to refer to the power of Congress to build the levees under the paramount authority vested in it to improve the navigation of the river, we cannot fail to point out the complete demonstration which that power affords of all want of legal responsibility to the complainant for the building of the levees complained of. ”

“ In terms of the overall good of the people of the metropolis and the Basin and the country, the water situation at Washington now and during the near future hardly bears a desperate enough aspect to warrant the sacrifice of much of the main flowing river to a reservoir which, like the freshwater estuary, could not be meshed with upstream needs but would serve only the urban areas at and below the Fall Line. ”

“ On a great public highway like the Mississippi, supporting an immense commerce and bearing it to every part of the globe, purchasers must have obtained lands for the beneficial use of the river as well as for the land. Can it be presumed that the United States would make grants of lands bordering upon this river, with its turbulent current, and subject to constant change in its banks by alluvion upon the one side and avulsions upon the other, and then claim all accretion formed by the gradual deposition of sand and soil, and deprive the grantee of his river front? ”

“ Returning to the question of the Mississippi river, let our national government build a permanent levee, which, like the great highways of ancient Rome, should be built to endure for generations.
“There are,” says ex-Governor Lionel Sheldon, “over twenty-three million acres exposed to overflow from the mouth of the Ohio to the Gulf of Mexico. ”

“ The error has been, in some degree, corrected in Robinson's new map of Louisiana, lately published at Natchez, which may be esteemed the best map extant respecting that section of country. He calls it Pine river.
Black river is a large, deep, and gentle stream, composed of numerous auxiliaries, which draw their waters from the counties of Wayne, New Madrid, and Lawrence; the two former lying in Missouri Territory, and the latter in Arkansas. It is navigable with boats of the largest burden, at all seasons of the year, for more than one hundred miles. ”

“ The interest that the River States have in increasing the artificial flow from Lake Michigan is not a right, but merely a consideration that they may address to Congress, if they see fit, to induce a modification of the law that now forbids that increase unless approved as prescribed. The investment of property in the canla and the accompanying works took the risk that Congress might render it valueless by the exercise of paramount powers. ”

“ Either state stands to lose river bed as a result of natural changes in the river; likewise, each state has the potential of acquiring additional river bed as a result of accretion and erosion. For example, if an island existed in 1787 but was subsequently eliminated by gradual erosion, the boundary would be moved to the advantage of South Carolina, and river bed previously owned by Georgia would then be owned by South Carolina. ”

“ Let it be assumed that the Pennsylvania statute, in its regulation of rights, established the commissioners' high-water line as the permanent boundary of the island, and conferred upon the riparian owner, so far as it was within the competency of the state to confer it, the right to fill in and to erect structures to the limit of this line, regardless of subsequent changes in the actual high-water line caused by the washing away of the banks of the river. ”

“ The legislatures of the respective states were asked to appoint examiners to view the doubtful portions of the South Branch (from Cumberland to the mouth of Stony Creek) and the Cheat (from established navigation and Dunkard Bottom) and lay out a road between the heads of practicable navigation on each. It was also suggested that Virginia and Maryland ask permission of Pennsylvania to lay out a road from Cumberland to Turkey Foot on the Youghiogheny.
Accordingly Virginia and Maryland passed laws authorizing the formation of a company for the improvement of the Potomac River. ”

“ Could Virginia license or authorize a nuisance on a public river, flowing, which rose in Pennsylvania, and passed along the border of Virginia, and which, by compact between the states, was declared to be 'free and common to all the citizens of the United States?' If Virginia could authorize any obstruction at all to the channel navigation, she could stop it altogether, and divert the whole commerce of that great river from the state of Pennsylvania, and compel it to seek its outlet by the railroads and other public improvements of Virginia. ”

“ I believe that the opinion doesn't hold good, any longer, as a matter of right, that because a man has secured a franchise, and his charter permits him to build a dam across a river or the mouth of a lake, he is thereby entitled to all the power and control and profit he can get from that river or lake without return in direct payment on that power to the people of the state. We know it's by constitutional law that the people own the river and the lake. I'm putting in a report on this whole matter to the incoming legislature, Senator Corson. ”

“ Beginning in 1886 Congress made several appropriations looking to the improvement of the river from a point in Arkansas, not far from the Oklahoma boundary, westward to the mouth of the Washita, and about $500,000 was expended on the project. The officer in charge of the work several times recommended that it be discontinued, because not likely to result in any commercial navigation ”

“ In response to the claim of California, the people of Nevada, in which it appears they are backed up by the U.S. Reclamation Service, contend that Nature has already determined whither the overflow waters of Lake Tahoe shall go. That, while they do not wish in the slightest to restrict the proper use of the waters of the Truckee River by the dwellers upon that river, they insist that no one else is entitled to their use, and that every drop of superfluous water, legally and morally, belongs to them, to be used as they deem proper. ”

“ As a result of past and present populations and their activities, conditions in the Basin—including the river system—are necessarily [Pg 25b] far from natural, for specific structural development is not the only form of change. The Potomac environment has been adapted to man's use, and in places where that use has been unreasonable it is already in trouble. Clearly it is going to have to be manipulated artificially to some extent to meet people's demands on it and to guard it against the worst effects of their numbers. ”

“ Louis, New Orleans and Kansas City, where the river is wide and the land across the river not attractive, the river forms practically an absolute bar to growth. At Toledo, Portland, Ore., Cincinnati, Pittsburg and Des Creeks are of chief importance when their erosion has worn a deep and wide ravine, the difference in level constituting a bar to a city's growth rather than the creek itself. When the creek is narrow it is frequently covered over and ceases to exert any influence, as in New York, Richmond, and other cities. ”

“ The next and perhaps the most important question is as to the effect of the sudden and violent change in the channel of the river that occurred in the year 1876, and which both parties properly treat as a true and typical avulsion. It is settled beyond the possibility of dispute that where running streams are the boundaries between States, the same rule applies as between private proprietors, namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream ”

“ The owners of land adjacent to a non-navigable stream own the river bed, but the surveys of public lands stop with the banks of navigable streams; conveyances by the United States of land located on a navigable river carry no interest in the river bed under federal law. ”

“ At the same time it is obvious that if the depletion of the waters of the river by Colorado continues to increase there will come a time when Kansas may justly say that there is no longer an equitable division of benefits, and may rightfully call for relief against the action of Colorado, its corporations and citizens, in appropriating the waters of the Arkansas for irrigation purposes. ”