In Winters v. United States,14 which involved the question of whether a treaty with the Indians, setting aside for them certain lands as a reservation in the state of Montana, but saying nothing as to the waters flowing through the land, nevertheless created a right to the use of water by implication, Mr. Justice McKenna, writing the opinion in favor of the Indians, and apparently strong in his belief that the disposition of the waters is in the federal government, said: "The power of the government to reserve the waters and exempt them from appropriation under the state laws is not denied and could not be." In Boquillas Land & Cattle Company v. Curtis, 15 wherein the controversy was as to whether a riparian United States patentee claiming under an United States patent confirming a Mexican grant, had a riparian right in the water, the court by Mr. Justice Holmes deciding against riparian rights and recognizing the right even of a territory to reject the riparian system, said: "It is not denied that what is called the common-law doctrine of riparian rights does not obtain in Arizona at the present date. Revised Statutes of Arizona, 1887, sec. 3198. But the plaintiff contends that it had acquired such rights before that statutory declaration, and that it cannot be deprived of them now; . . . They [the provisions relating to priority] simply follow what has been understood to be the law for many years. Clough v. Wing, 2 Ariz. 371. The right to use water is not confined to riparian proprietors . . . such a limitation would substitute accident for the rule based upon economic considerations, and an effort, adequate or not, to get the greatest use from all available land." In Los Angeles F. & M. Co. v. City of Los Angeles,16 the court, by Mr. Justice Day, declared that it was for the state of California to say whether a Mexican grant made prior to the cession to the United States carried a riparian right, the grant itself being silent as to waters. The state court had held against the existence of the rights. I quote from the opinion: "In its opinion on the case at bar the Supreme Court of California said that in this respect it was following Hardin v. Jordan, 140 U. S. 371, 14 207 U. S. 564 (1908). 15 213 U. S. 339 (1909). and this court has frequently held that the extent of the right and title of a riparian owner under a patent is one of local law. See recent decision of Whitaker v. McBride, 197 Ü. S. 510, a case therein cited." It also is interesting to note that the United States Circuit Court of Appeals, Eighth Circuit, in Snyder v. Gold Dredging Co.1 in holding that as between a prior riparian patentee and a subsequent appropriator in Colorado the patentee had no riparian rights, said: "That by the settled rule of decision in the Supreme Court of the United States, conveyances by the United States of public lands on nonnavigable streams and lakes, when it is not provided otherwise, are to be construed to have effect according to the law of the state in which the lands are situated in so far as the rights and incidents of riparian proprietorship are concerned. . . . Here it is not provided otherwise either by statute or by patent, and as has been seen the local law does not recognize a conveyance of the land as carrying any right to the unappropriated waters of the stream." From the foregoing opinions it appears that the Supreme Court has leaned, or allowed itself to be quoted as leaning, at one time toward the idea of state disposition of waters, then toward federal disposition, then back again, and that the opinion of Mr. Justice Brewer in United States v. Rio Grande Irr. Co. is scarcely consistent with itself, for if the state as against the United States itself cannot reject the riparian rule yet may do it as against the grantees of the United States, it would seem either that the United States itself had no property right at all in the right to use the waters and, therefore, could not complain of the rejection by the state, as against the United States, or else that having such property right Congress ought to be permitted to dispose of it to grantees under Art. IV, 3, cl. 2, conferring on that body "the power to dispose of . . . the territory or other property of the United States." § DISTINCTION BETWEEN SOVEREIGN JURISDICTION AND OWNERSHIP The question being an open one in the Supreme Court let us, with deference, assume to consider what the decision ought to be. In the ensuing discussion, the phrase "political state," tautological though it may be, will be used as the equivalent of the term 17 181 Fed. 62 (1910). 66 "state" in political science, a particular portion of mankind viewed as an organized unit," 18 and in contradistinction from a member state of the Union. For such a member the word state or commonwealth is reserved. Viewed from the standpoint of political science the federal government and the commonwealth are but agencies of that one of the world's political states called the United States of America. With confusion of terms out of the way the first thing for us to do is to acknowledge the distinction 19 between sovereignty and ownership, between imperium and dominium. For it may be said that if prior to the statehood of the priority states the relation of the United States to the running streams was one of ownership or property either in the waters themselves or in their use, then the United States is the owner still, for it is not permissible to argue that there is anything in the conferment of statehood, which any more requires a transfer to the state of property in respect to waters, than in respect to lands or anything else. All that is necessary is a transfer not of property but of sovereign jurisdiction. Of whatever, on conferment of statehood, the United States remained the owner, of that, Congress, under the constitutional provision already alluded to, retained full power of disposition. But if the relation of the United States to the waters was one of sovereign jurisdiction and not of ownership, then, it may be that the power of disposition passed, upon conferment of statehood, to the states and now belongs to them. There are some who, assuming that the United States had a property in the waters or in the use of them, contend that the property right passed to such of the priority states as had state constitutional provisions asserting state or public ownership of the waters. If this be the only theory of supporting a power in the state to dispose of the waters, only some of the states would have the power, for only some have constitutional provisions of this character. Furthermore, since the primary purpose of the process of admitting a state into the Union is to admit it into the Union rather than to make contracts transferring property of the United States to the state, there are good reasons to doubt, especially as to certain 18 Burgess on Political Science & Constitutional Law, p. 53. 19 Mobile v. Eslava, 16 Pet. (U. S.) 234 (1842); Willey v. Decker, supra n. 10. states, whether such provisions should have the contractual effect thus ascribed to them. Let us recur to the distinction between sovereignty and ownership. For a political state to exercise sovereignty throughout its geographical sphere is one thing; to own in a strict proprietary sense what is within that sphere is another. Most political states do not own the greater number of things within their borders, but permit them to be owned privately, exercising, however, sovereign jurisdiction over them. Many things, of course, political states actually own; for example, governmental buildings, museums, libraries, and frequently, public service instrumentalities. In these instances the political states sustain the dual relation of sovereign and owner. More things, indeed everything, could be owned by the political state if the latter wanted to become the owner. All that would be necessary would be the exercise of the sovereign jurisdiction in that behalf. Such a complete exercise, however, would be unwise and is unlikely. As to lands of the United States situated within a state the relation of the United States thereto is one of ownership, not of sovereignty, while that of the state is one of sovereignty, not ownership, except that where the lands are bought by the consent of the state legislature for "forts, magazines, arsenals, dockyards, and other needful buildings" the sovereign and proprietary powers are, under the federal constitution 20 united in the United States. Said the United States Supreme Court in Pollard v. Hagan 21 in a case involving the relation of the United States to certain of its lands within a state: "The United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a state or elsewhere, except in the cases in which it is expressly granted.” The same court in Kansas v. Colorado 22 declared: "These arid lands are largely within the Territories, and over them by virtue of the second paragraph of section 3 of Article IV heretofore quoted, or by virtue of the power vested in the National Government to acquire territory by treaties, Congress has full power of legislation, subject to no restrictions other than those expressly named in the Constitu 20 U. S. Const., Art. I, § 8, cl. 16. 22 Supra. 21 3 How. (U. S.) 212 (1845). tion, and, therefore, it may legislate in respect to all arid lands within their limits. As to those lands within the limits of the states, at least of the Western states, the National Government is the most considerable owner and has power to dispose of and make all needful rules and regulations respecting its property. We do not mean that its legislation can override state laws in respect to the general subject of reclamation. While arid lands are to be found, mainly if not only in the Western and newer states, yet the powers of the National Government within the limits of those states are the same (no greater and no less) than those within the limits of the original thirteen, and it would be strange if, in the absence of a definite grant of power, the National Government could enter the territory of the States along the Atlantic and legislate in respect to improving by irrigation or otherwise the lands within their borders. Nor do we understand that hitherto Congress has acted in disregard to this limitation." The distinction between sovereign jurisdiction and ownership is not one of quantity, as between the whole and the part, but of cause and effect. It is one of the functions of sovereign jurisdiction to create ownership, — in other words, to determine what things are not subject to ownership and what things are, and as to the latter, who shall own them and how the ownership may come about, and what shall be the estates in the thing owned. The ownership created may be either private or in the political state itself, but whether in the one or in the other, or not created at all, the political state still possesses what is greater, although different, - the supreme power of sovereign jurisdiction over persons and things within its geographical sphere, and through its exercise, now in this direction, now in that, may accomplish this or that result of legal significance, whether it be ownership, rule of contract, definition of crime, or what not. It is to be noted, however, that because sovereign jurisdiction has the power to accomplish this or that result we are not to infer necessarily that it has done so. A result cannot exist before it is caused. There are many things which sovereign jurisdiction can do, but which it has not done. Declaring all crimes capital is one of them. Making statutes of limitations different from what they are is another. Possibly to come directly to our question and to take the United States as an example, the creation of ownership or property in the United States either in running waters, or in the use of the running waters, on the public domain, later and now included within the priority states, is yet another. |