SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY TO CONSIDER SENATE RESOLUTION NO. 44. KNUTE NELSON, of Minnesota, Chairman. WILLIAM E. CHILTON, of West Virginia. POWER OF THE FEDERAL GOVERNMENT OVER NAVIGABLE AND NONNAVIGABLE STREAMS REPORT OF THE SUBCOMMITTEE OF THE COMMITTEE ON THE JUDI- POWER WITHIN THE RESPECTIVE STATES POWER OF THE FEDERAL GOVERNMENT OVER THE DEVEL OPMENT AND USE OF WATER POWER. Mr. Nelson, from the subcommittee of the Committee on the Judiciary, submitted the following report, to accompany Senate resolution 44: To the Committee on the Judiciary: Your subcommittee, which was directed to report on the following resolution: Resolved, That the Committee on the Judiciary of the Senate be, and it is hereby, directed to report to the Senate, at as early a date as possible in the next regular session of Congress, upon the power and authority of the National Government over the development and use of water power within the respective States, and especially: First. Has the National Government any authority to impose a charge for the use of water power developed on nonnavigable streams, whether State or interstate? Second. Has it any authority in granting permits to develop water power on a navigable stream to impose and enforce conditions relating to stated payments to the Government, regulation of charges to consumers, and determination of the right to make use of such developed power? Third. Has it authority in disposing of any of its lands, reserved or unreserved, necessary and suitable for use in connection with the development or use of water power on a nonnavigable stream, whether State or interstate, by lease or otherwise, to limit the time for which such development may continue, or to impose and enforce charges for the use and development of such water power, or to control and regulate the disposition of such water power to its consumers? have considered the same and report as follows: The interrogatories embraced in the foregoing resolution involve the rights of riparian owners, the rights of the States, and the rights of the Federal Government in the navigable and nonnavigable streams and watercourses of the country. A solution and understanding of these several rights will tend to answer and solve the questions propounded. NAVIGABLE STREAMS. The rule of the common law, that only those streams are held navigable in which the tide ebbs and flows, and only so far as such ebb and flow, has not been adopted and does not prevail in this country. With us the question of navigability is one of fact in each case. If a stream can be used for commerce or trade, in any form, to any substantial extent, even for the floating of rafts of logs or lumber, it is held to be a navigable stream. (The Genessee Chief, 12 How., 443; the Daniel Ball, 10 Wall., 557; the Montello, 20 Wall., 430; Barney v. Keokuk, 94 U. S., 324; Waterpower Co. v. Water Commissioners, 168 U. S., 349.) Most of our streams and watercourses are, in fact, more or less navigable in some of their reaches, and the nonnavigable portions serve as feeders for, and are so connected with, the navigable sections that it is difficult and scarcely practicable to apply a separate rule for 7 |