Memorandum of acts of Congress concerning power privileges at Government dams— Continued..

Do.

Do.

United
States.

United States reserves right to Private.
control dams and pool level and
to construct locks. Land for
lock and approaches to be con-
veyed to United States free of
charge, and United States to
have free water power for build-
ing and operating locks. Fish-
ways to be constructed.
The Secretary of War authorized
and directed to fix from time to
time reasonable charges to be
paid for use of power.
Dam to be built so that the
United States may construct a
lock in connection therewith.
The grantee to have the right
to use Government land neces-
sary for the construction and
maintenance of the dam and
appurtenant works, to convey
to the United States free of cost
such suitable tract or tracts as
may be selected by the Chief of
Engineers and the Secretary of
War for establishment of locks
and approaches, and to furnish
the necessary clectric current to
orerate locks and for lighting
grounds.
Water power to be leased by the
Secretary of War upon such
terms and conditions as shall be
best calculated, in his judg-
ment, to insure the develop-
ment thereof. A just and rea-
sonable compensation to be
paid for use.
Secretary of War authorized to
grant leases or licenses for pe-
riods not exceeding 20 years at
such rate and on such condi-
tions as may seem to him just,
equitable, and expedient.
A reasonable compensation for
leases of water power shall be
secured to the United States.
The dam to be property of the
United States free of charge.
Grantee to have water-power
rights for 50 years. United
States to have right to con-
struct a lock and to have free
electric current for operating
and lighting. Grantee to raise
height of dam at Lock No. 4
and to stop leaks. Beginning
in 1925, grantee shall pay to
United States $1 per 10-hour
horsepower, with an increase if
natural flowage is increased by
storage reservoirs.

Withdrawal of water shall be
under the direction and control
of the Secretary of War.
Secretary of War authorized to
permit erection of a power sta-
tion in connection with United
States dam. Grantee to waive
certain claims against United
States.

Do.

Do.

Private.

United

States.

Do.

S. Doc. 246, 64—1——3

Memorandum of acts of Congress concerning power privileges at Government dam
Continued.

NATIONAL CONTROL OF SURPLUS WATER POWERS

INCIDENTALLY CREATED IN THE ERECTION

OF IMPROVEMENTS IN AID OF NAVIGATION

VIEWS OF MR. CULBERSON

ON S. RES. 44, A RESOLUTION DIRECTING THE COMMITTEE ON THE
JUDICIARY TO REPORT TO THE SENATE ON THE POWER OF

THE GOVERNMENT OVER THE DEVELOPMENT AND USE
OF WATER POWER WITHIN THE RESPECTIVE STATES

335

VIEWS OF MR. CULBERSON.

Sovereignty, dominion, and control of the flowing waters of all streams, navigable or otherwise, within its borders are reserved to a State, subject only to such powers as are vested in the Federal Government by the commerce clause of the Constitution, and such rights as may accrue to it as the actual owner of riparian lands.

The opinion (in Shively v. Bowlby, 152 U. S., 1) refers to all the cases which we have above cited and many others upon the various questions which are discussed in the case and recognizes the rule that it belongs to the States to decide as to the character and extent of the riparian rights of owners upon navigable streams within such States.

The jurisdiction of the State over this question of riparian ownership has been always, and from the foundation of the Government, recognized and admitted by this court. (Water Power Co. v. Water Commissioners, 168 U. S., 366.)

While this is undoubted, and the rule obtains in those States in the Union which have simply adopted the common law, it is also true that as to every stream within its dominion the State may change this common-law rule and permit the appropriation of the flowing waters for such purposes as it deems wise.

*

* *

Although this power of changing the common-law rule as to streams within its dominion undoubtedly belongs to each State, yet two limitations must be recognized: First. That in the absence of specific authority from Congress the State can not by its legislation destroy the right of the United States as the owner of lands bordering on a stream to the continued flow of its waters, so far at least as may be necessary for the beneficial uses of the Government's property. Second. That it is limited by the superior power of the General Government to secure the uninterrupted navigability of all navigable streams within the limits of the United States. (U. S. v. Rio Grande Co., 174 U. S., 702-703.)

Grants by Congress of portions of the public lands within a Territory to settlers thereon, though bordering on or bounded by navigable waters, convey of their own force no title or right below high-water mark and do not impair the title and dominion of the future State when created, but leave the question of the use of the shores by the owners of uplands to the sovereign control of each State, subject only to the rights vested by the Constitution in the United States. (Shively v. Bowlby, 152 U. S., 58.) But it is useless to pursue the inquiry further in this direction. It is enough for the purposes of this case that each State has full jurisdiction over the lands within its borders, including the beds of the streams and other waters [citing numerous authorities]. (Kansas v. Colorado, 206 U. S., 93.)

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. (Ib., p. 92.)

The fact that a stream may constitute the boundary between the United States and a foreign country does not change the general rule. Concerning a question of riparian right on the Sault Ste. Marie River, the boundary river between the United States and Canada, the court said: "The fact that it is a boundary has not been held to make a difference;" that is, a difference in the rule of law applying to riparian rights in the State of Michigan. (U.S. v. Chandler-Dunbar, etc., 209 U. S., 453.)

It being clear, then, that dominion, sovereignty, and control of the flowing waters of a navigable stream within its borders rest with the State, and that it may enact such laws as it deems suitable for the

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