Title: Proprietary Power
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 Material Information
Title: Proprietary Power
Physical Description: Book
Language: English
Publisher: President's Water Resources Policy Commission
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - Proprietary Power
General Note: Box 12, Folder 9 ( Water Resources Law - Vol #3 - 1950 ), Item 4
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003086
Volume ID: VID00001
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navigation.1: It remains undecidediwhether a different rule
nusat be applied where such ia erevts are damaged. in a valid
exercise by the United States of commerce authority. ot relat-
ing to naiygatio n, It is nevertheless estal ihed, aswe have
alreidyj seen, that the exercise of commerce authority over
waters: under the juisdiction of Congress is isot limited to navi-
gation, but is as broad as the needs of commerce."
Finally, it should be 6otj d I at the Suprene Cqurt has held
that, with respect to a validly authorized federal project, a state
cannot:m
call a halt to the exercise of the eminent domain power
S of the federal government because the subsequent flood-
ing of the land taken will obliterate its boundary. And
the suggestion -,tat this pprojet, interferes with the
state's own program for water development and' on-r
servation is likewise 6f nb avail. That p*ogra must
bow before the "superior power" of Congress.

Proprietary Power
Additional federal authority concerning water.and land re-
sources stems from the Property Clause of the Coanstutitution,
under which Congress has proprietary power:;
to disposeof and make all needful Rules and Regulations
respecting the Territory or other Property belonging to
the United States .
This clause drew scant comment in the ConAi tutional Con-
vention. Indeed; records of the Proceedingsof the Convention
disclose that no comparable provision was included in the draft
Sof he Plan f a Federal Constitution tendered to the Conven-
tion by Charles Pinckney of South Carolina."' Toward the
Send of the Convention, however, the Property Clause was made
E USee United States v. Gerlach Live Stock Co., 339 U: S. 726, 737 (1950).
m,.seeRipr, s pp..22-~ L, See alSot.fra, p. 47.
mOM lahoma v. AtkaMfnw, 81U. .S; 08,534-385 (1941).
"2n. S. CoST, Art IV, 5Cl. 2
5 Elliot, DEBATE ON TH FE=AL CONTrITUTMON, 128-132 (rev. ed.4.184).







part of thi Constitution during debate relating to the admis-
:son of ne Astates into thef;Uniohl Thus did this "vastly
important clause" come into being almost as an afterthought."
'Potic "iLANDS.-Byr the Property Cluse, Congress is en-
tiusted with unlimitedd power over the use of federal public
lands, and it is for Congress, not the courts, to say how that trust
shall be administered Thus, C.ngress alone can prohibit
,absolutely the use of public lan s,/ without limitation fi the
terms on which they may be used."(

'1i 1. pp. 496-497. In the Dred Scott ease, discussing the historical pur-
.pose of the Property Olatu as a means of providing for control by the
Federal. Q'oer e~let overproperty hePd in ,o 0nop y the states and princi-
paIly sk a means to sell lands in order to 'pa- e war debt, the majority of
the jitsiles took the view that this proprietary authority was confined to
property; whtfchthteltats held in conmuan m" a the time the Constitution
a es*4a h ed,;hasiqn no application to prpeity which the Federal Gov-
ernment might subsequently acquire. Dred Bcoft v. Sandford, 19 How.
393, 35-442 (U. S. 1856). In this respect; however, the decision has been
regularly disregarded by the Court. See Downes v. Bidwell, 182 U. S. 244,
272-275 (1901) ; Dorr v. United 4tates8, 195:U S. I8, 139-149 (1904).
"The latter part of the'motfon was int4eided to calm the fears of those
whothought that by requiring consent of a State tp erection of a.ew State
within iis jurisdiction, the Constitution might befavoring'the claims of some
State toi vacant lanil 6eded to the United sites by the treaty of peace' with
Great Britain. Morris' motion was caned4, with only, 9ne s entinig vote
(that of Maryland) ; and it became the second clause of Article 'V, section 8,
of the-Constitution. -.l tls, way, this vastly important clause, under which
the Unted. State~ ,. s governed all its territorial possessions, came into
being, almost as an afterthought, and towards the en6d o the Convention."
Warren, THa MAKING or THE CoNaTrurTIno, p 600 (1987).
United States v. City and County of San Francisco, 810 U. S. 16, 29-30,
rei. dei., 310io' .Sti (1940).
ijiptV ni&&fJStat5e4220 U. .S3 62,C L -S7 (191)', recogniing the
constitu$tinality of thauthority to establish national forests; Unitad States
v. %Gr'ad, 2'U. 8. ~6521 (1911) holding constitutional the delegation of
authority to make rules and regulations relative to national forests; Utah
P4oboe;t Aigkt 0C. Y.% Vflit States, 243 U. S. 389, 410 (1917) 'hbOldig that
the. United States may require a license for use of public lands as sites for
works employed in generating and distributing electric energy; Ruddy v.
Rossi, 248 U. S. 104, 107 (1918) holding constitutional a provision in the
1862 Homestead Act that no lands acquired thereunder shall be liable to
satisfy any debt contracted prior to issuanee of patent therefore; Arizona v.
California, 283 U. S. 428, 464 (1981) holding that a state has no constittitional
ritgt to use, in aid of appropriation, anyl, nd of the United States, and it
dannotemiplaixof -trovisonconditi6dif1- Aese of such land. See also







For example,' ii uthbriing th ie ty l rnd County o San
Frateisec to construct 6t1e Hetch-'Hetchy Project oli itbic
1andc (C6gress provided for municipal distribution 6f th& ec-
tric energy with a proviso against the transfer "f that function
t~a privathutility." The Siprei e Cobit sustained anT in-
junction against violation of that proviso when the City and
-Co~tnty arranged for distribution by a private-utility-company,

S'hus, Qongress may constitutionally limit the dissi-
f oiti of the-public 'domain to a mainmr conslstetittW
its views of public policy. And the policy to govetr dib-
"pose of rightst6 develop' fydideo tried power in such
-.i i-p lie~ lands tmry, if Congress choose, be! ehe designed
i avoid monopoly and to bring about swide-spread dis-
tribution of benefits. :
:' Thef authority of congresss to require a conditional:liednse
foerdevelopment of electric energy on public lands was recog-
nisedrby'the'Supreme Coturt in,1917 in Utak Power d&Light
Co.v. United States.' Recently, however, conditions imposed
in a Federal Power Act license for use of public lands have been
questioned by the Idahd Power Company. :
: There has been almost uniform acceptance of the power of
Congress to legislate lb connection with property held by the
'United States in the several states. And the Supreme Court
has observed that "in the instances where it has beer ques-
tioned in.this court its validitybhas b6en ui~il iand its suptem-
acy over state enactments sustained." f The Court had arliqr
held that admission of a state into the Union did not deprive

CogeshsKat v. atfedS St& tes, 95 F. 2d 086, 989 (0. A. 4, 1988) uphotdiig
federal power to condemn lands necessary solely for Ipotecti n of a national
forest '
Act of becemnber 19,'913, 8,8 Stat. 24C, 245.
l! #~ited States v. c&tyiand Ciount of San Francisco, 310 U. 8. 18, 80,
reh. den., 310 U. S. 657 (1940).
*24sti i.89 S.l19 ).
This case is now before the United States Court of Appeals for the Dis-
trict of ColUdbia ieuit idaho Power Oo. v. Federal Power 0omMi*ton,
Case No; i10~0, Oct6ber ilerm, 1950. -
'Utah i r 'i ght o. v. Unite? States, 243 U. S. ,89; 404-405 (1917).
911611--1----







thb piitedL tgtes of thee powerto rpte4t adequately its own
piqperty, ayisg th ,t a .diterent r le would place the pu1t .c
domain. ogf the Unadt statess completely at the mercy of the
state legislatiopp."2' it
SFederal authority over the use of public lands is thus com-
plete and plear. :
SRiorrs To USE or WATER.-Although states may adopt leg-
islation respecting the character of rights to the use of water
_which may be pquired in streams under their dominion, the
upremP..o,urt held over a half-century ago that states may
nit,,y legislation and without ttecoqisent of Congress: '2
iw '- destroy the right of the United States, as the owner of
.'r, i~?lands boidering on a stream, to the continued flow of its
-i, li : Iwaters; so faarat least as may be necessary for the bene-
ficial uses of the government ~'operty ,
":iBecause of. the direct importance to our survey, we turn
to9-.a-onsideration of rights to use of water.1Lm It is elementary
that1 a water right is a right only to the use of water-a right
usufructuary in character, not a right to the corpus of the water
itself. 'But such' a water right is held to be real property,
deemed as "fundamental under the law of riparian rights as
under the law of appropriation." Moreover; the right to
have water flow from a stream into a ditch is likewise held to
be.real property, and a.wrongful diversion of water an injury

_!P4PfWe ld v. United Statea, 167 U. S. 18, 528,(1897).
SUkited states v. Rio' Orande Irrigation Co., 174 U. S. 690, 703 (1899) ;
Sa .ag v'.' oaorado, L'0 U. S. 46 (1907).
':''Speaking of the needfior supremacy bf ithe. United States an its field of
delegated authority, Mr. Chief Justice Marshall said in M'Clloch v. Mary-
.It4, "T'o impose pn it the necessity of resorting to meaus-which it cannot
control' which another goverAment may furnish or withhold, would render
its course precarious, the result of its measures uncertain, and create a
dependence on other governments, which might disappoint its most im-
portant designs, and is incompatible with the language of the constitution."
4 Wheat. 316, 424 (U. S. 1819).
"For a more extensive discussion of these matters, particularly in
their relation to irrigation, see infra, pp. 154-167.
SSee, e. g., Luz v. Haggin, 69 Cal. 255, 390, 10 Pac. 674, 753 (1886); Met-
tier v. Ames Realty do., 61 Mont. 152, 161-162, 201 Pac. 702, 704 (1921),
"'I Wiel, WATER RWCrTS. THFp WESTERN TATES, 18, p. 1 C3d ed. 1911).







tofretal property.' It has been said thatfi right by appropria-
tibiito the use of water has 'all the dignity 6f and is an etate
of fee simple, or a freehold." i ::,,
On numerous occasions and in a variety of ways, the United
States has acquired rights to the use df water. By cessions
from France, Spain, M1exico, Great Britain Texas, a-d ei
Indian Tribes, huge territories were acquired by the United
States. With these sessions, the United States became the
owner, subject to, private rights already vested,, of the lanai
and of at least the right to use the waters.'" In this con-
nection, Vattel has said: !
When a nation takes' possessrii 6f -, country, with a
view to settle :there, it takes possession of everything
included in it,as lands, lakes, rivers, etc.
Also, the United States has acquired rights to e use of water
by voluntary purchase.' Likewise, acquisitions have been ac-
complished through tfe exercise of the powbr of eminent do-

Significance in the West.-The importance of the Property
Clause to the development, utilization, and conservation of
water resources has special significance in the development of
the West. -
Reporting to Congress with referene to te dispsa 6f'the
public domain, Alexander']lamilton stated that "conveieiet
tracts shal, from time to time, be set apart' fbr the purpose of
lotions by actual settlers, in quantities not exceeding, to one
person, one hundred acre "' Similaily, in 1785 Thomas'
Id. 283, pp. 298-299.
"Id. 285, p. 301.
m 2 Kinney, IBBiR ATION ANDy WATER RIGHTSi 1112 (2d ed. 1912).
m Vattel, THE LAW OF NA TIOSs l t PRINCIPLEB o THE LAW Or 1lto!i AP-
PvaD TO THE Co0Ift Ar Ni AinABS -ONATIXoNS -AN M SOVbBEtG, Bk; I, ch.
XXII, $268, p.'120 (Citty's 5th American ed. 1889). "
SSee, e. g.; United States v. Gerlaclh MLve StOok Co., 339 U. M 125, 7W
(1980).
See, e. g., Inter iational Paper Go. v united States,, 282 U. S. 899, 408
(1931). '
"AMaEICAN STATE PAPERS: PUBLIC LANDS, vol. p. 8 (Lowrie and Clarke
ed. 1832).







Jefles paid that, gitis-n t too. so9 ;to provide- by every
possible means thtMA few as possible shall be without a little
portion of land. The small landholdersiare the most precious
part of a state." :
In keeping with such views, Congress accorded to settlers a
preference right in providing for disposal of the public domain
in Preemption Acts;dating back toil 80.'O It has been de-i
scribed as a preference for "actual tilling and residing upon a
piece of land." "- Moreover, under the first -Homestead Act
of 1862, provision was made for mrce fully u effetuatingt the
policy of settling the public domain.": i But in the arid West,
set t ent gaye rie o problemss not present in the more humid
regions. A thgue;ypreme Court observed in California Orgeon
Power Co. v. Bear Portland Cement Co.:v ;
From a line east of the Rocky Mountains almost to the
Pacific Ocean,; and from the Caaian border to the
boundary lf Me)iPo-an are greater than that of the
original thirteen states--the lands capable of redempp-
tion, in. the main, constituted; a desert, impossible of
agricultural use without artificial irrigation.
;,Appropriation and Riparian Doctri.es-Among mIiners in
the Pacifio States and Territories, where precious metalpwere;
dined O9 public lands oflteUnjy4ed States, a. custom evQyved
wgerebyI.hs1he first appr9p r ofYaste.p the~ streams on s.c
lands for mining purposes. was held have a better xight than
others to tse the waters.1 Under these conditions and the
ardity prevailg mi parts of the West, a rule became gener-
ally recognized th tl'he acquisition of water by prior appro-
Tx WBIaNGS ow THOMAs JETEBr N, p. 18 (memorial ed.1904).
See, e, g,,a ctqotine !, a1838,5tat., :
'Dpt4gon, TvHE in pDoAl8, p. 214 (1884),,
2Amctil(t May 20, 01%,312 St.a 302, see 4&3M. ,..C.l1s 1 seq. In 1828,
similar legislation had. ~sn favorably reported, y the Copwmnisioo es
Pal~llc hands which recommended "that small tracts of eighty acres be
given to the heads of such families as will cultivate, improve, and reside
on the same for five years." 32 AMwnmuAN- STAT PAPEas: PusBIr LANDS,
voL v, p. 449 (Dickins and Forney ed.).
Ali U. 142, 156 (198).
"Atchifsou v. Petero, 20 Wall. 507, 510 (U. S. 1874).







priatioh for a benefit l nusa ivits; htitWled o i teetibon-a ib
evide nWxt~c i ney esilation and ij bial deision,'but, alo
by local and dustoari y w-td id u~ge aswelP This O~ t Sie
of itibr aP ropiiatii IMited v4 A iatked i depaitre fain tih
riparian doctrine, rvevai fg in theb Est, under which only ai
owier of lands riparian toi stream may.makle ,ieasnable use
ofitswaera, and only on his riparian lands.' -
SAct 'of/a 18of pazd 1870.-C-laimning under formal patents
taken out under the 1862 Homestead Act and the 18o0 Pacific
&flway Act, patentees on lands containing streams claimed

w OaftIorZ a Oregon Pojcr,'0o. v. Beaver 'ortlald aOemedt Qo., 296 U. S.
142, i14 (i ) Itai rerence to th appropriation dbirMnift8er which
ritghi' ae not bonfned to .owner otflandmisiiat tor stream, tfheSupreme
.Op, t hms said that "Unoem this doctrine, 41verplon and application of
wte to a beneflpial use constitute an appropriation, and entitle the appro-
it& t a ~ntlniiA g ritt to use the water,o 'the extent of the
aiIpotritio~rt bat not beyond that reasonably required and actually used.
Phq-*apropriator first lJ,.tme is prior It right over others -ppa the same
ptrpapi *." Artisapst v. COaifornia, 298 U. S. 558. 565-566 (1986).
See ai6o I,,ra, pp. 156-15.
: see~W~d'v. 'bli, Cal. 255, 890, 10 Pae. 674, ~W (188), ,'Recently
tracing the historical origins of the eomnoaunlaw riparis.dotrine, the
Supreme Court said, "As long ago as the Institutes of Justinian, running
*it-itefk 4h tal 'nd these e, were rea commn e--things eOMinon to all
and property of none. Such was the doctrine spread by dvl-law comment
tators and embodied In the Napoleonic Code and in Spanish law. This
coicepMi passedd into the common law. From these sources, but largely
trot dctvil-iaaw sonree, the Inquisitive and powerful minds of Chancellor
K ri .and,.* .. ,Tus ce Story drew in generating theibasic doctrines of
Ame ican w9ter law.
'*MpaI an rights developed where land were' it ly Watered by rainfalL
The. ~tiary natural 'aeet was latd, atnd the rdU~-oin stl sasor rivers
was incidental. Since access to flowing waters was pofsibleonly pver pri-
vate lands, access became a right annexed to the shore. The law followed
tle principle of equatity which requires that the esritu of ffloWifntatter
hbi BOe no one's property and that, aside :from rather limited use for
domestic and agricultural purposes by those above, each riparian owner has
the right, tQ have the, water flow down to, him inus-nEtura1,vou2m9 and
channels unimpaired in quality. The riparian asyteq!aoe not permit water
to be reduced to possession so as to become property, wpLch may be XSae4.
away from the stream tfor commercial or nonriparian )p poA r In working
out details of this egalitarian concept, the several states made many varia-
tions, each seeking to pr~vide4 incentives for dqeloeit of its natural
advantages. These are set forth in SIMveiyv,v. BQe~ 'U.S.. 1. United
States v. Gerlach Lve Stock Co., 889 U. S. 725, 744-45 (1950). See also
infra, pp. 155-156.







,to be the:t ueeuccesqy pfhe leUnitwd states with the right to
.oust prior ,appropriators under the possessory system.1"
Against the background of the foregoing facts, Cngreas;enacted
the Act of 1866 which declared mining lands free and open to
preemption and included .this provision, in Section 9: 1"
That, whienter, by priority of possession, rights to
the use of water for mining,agricultural, manufactur-
ing, or other purposes, have' testedd and accrued, and
Sthe sanie aireo rognized and a&ibwldedged by the local
u bustema laws, and the decisions of bourit, the possessors
and owners of such vested rights shall be maintained
and protected in the same; and the ri"t of way for the
construction of ditches and canals for the purposes
aforesaid is hereby acknowledged and confirmed: Pro-
vided, however, That whenever, after the passage of this
act, any person or persons shall, in the construction of
S any ditch or eanal, injure or damage the possession of
any settler on the public domnain,'the party committing
such. injury. or, damage shall be liable tothe party in-
-jured for such:injury or damage.
Referring to S ectiog i of the 1866 A,, congress provided by
the Act of 1870 that .
All patents wanted, or preemption of homesteads
allowed, shall, be subject to any vested and accrued
water rights, or rights to ditches and reservoirs used in
connection with such water rights, as may have been
acquired under or recognized by the ninth section of
the act' *
The author of the 1866 Act deemed ,it a recognition of "the
obligation of theigovernment to respect, private rights which
k"aAct of May 20, 18(2, 12 Stat. 392, see 4 U. :0.e;61 et se y; Act of
jiiy 2, 164,:g 3, 13 Sta 365, 367; I Wiel, WATEp RI aors IO tiH WmBThBN
STATES, 1 87 '(3 ed, 1911),.'
I R. S. 2839, frtm Act of uly 26, 1868, t 9,14 Stat. 251, 258, now codi-
fied as part of 43 U. S. C. 661.
R., S. 2340, from Act of July 9, 1870, 17, 16 Stat. 217, 218, now
codified as part of 43 S. 0. 661.







had grown up under its tacit consent and appro vl."" And
the Suprenme Court kodn' decared that this legislation consti-
tuted congressional recognition of the doctrine f right by prior
appropriations Pomiting out that while the statutory lan-
guage used was not "happy," the Court has also said that Con-
gress thereby recognized as valid the appropriafion system gov-
erning use of water which had grown up among occupants of
the public lands uhder peculiar local necessities of their con-
dition." At the same time, it noted that prior to the 1866 Act
the claims of individuals to water were good '"xcept aiAgainst
the government." I The 1866 Act has also been characterized
as "an unequivocal grant" for existing diversions of water on
public lands-a voluntary recognition of a preexisting right of
possession, rather than the establishment of a new odne.1 And
tlhe Court. has recently said that Congress thus "made good
appropriatiois in being as against a .later patent to riparian
parls of the public domain, and removed the cloud east by
adte jfeaderae l claims." 151
Desert Land Act of 1877.-.-Soonhafte passage of,the Acts of
1866 and 1870, Congress eiaoted the Desert-Land Act of 1877,
which allowed desert land entries with a proviso that:"
the right to the use of water by ihe person so cohduct-
ing the same, o#i o to any tract of desetglanik of i4ie
hundred and twenty acres shall depend upon bona fide
prior appropriation;' ahd such right shall riot exceed' the
S amount of water actually. appropriated, and necessarily
used for the purpose of irrigation and reclamation; and'
al surplus water over and above such'actual alpropria-
tion and use, together with the water of all Iakes, rivers,

Jenonis Vr. Ki*c, 98 U. S. 4538, 48 (1898).
A" tchison v. Peterson, 20 Wall. 507, 513 (U. S. 1874).
Basey G. alagher, 20 WaUl. 670, 683-684 (U. S. 1874).
a20Wat. at 1 1. Of. Sturr V.Beck, 1388 U. S. 541(189).
SBroder v. Water Company,101 U. S. 274,275 (1879).
United States v. G(erk4a Live Block Co., 889 U. S. 725,748 (1950).
Act of March 8, 1877, 1 1, 19 Stat. 877, as amended, 48 U; 821.
This provision applies only in California, Colorado, Oregon, Nevada, Wash-
ington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, and' North
and South Dakota. 1 3, 8, 19 Stat8-77, as amended, 48 U.S. 828.







and other, sa uce. o w elr spply upon .th pbli
andt n".tpavigable, shall rie be1d? free Tof i
appropriation and use' of e public for irrigation,
mining, an 5 manufacturing purposes subject to xti g

With foe foregq g, ,the 1877. At allows:;
entry aundPreolaation of desert lands within the states
S of Califijf~isOrtego, and Nevada (to which Colorado
waslater added), and the thea territories of Wasbing-
toit Idaho, Mut1pa, TJtah,,Wyopaing, Arizona, New
Mdexico, and akota *:.
Congress thus rantedi the right to appropriate waters for irri-
gation on that part of tbhe blic domain, subject to the 18771
Act-." The intention of Congress, th"dCourt hab said, was "to
further the disposition and settenentof thefpubliedom~a~ i"5
Andiit declared thit Cigress iitendedby, the 1877 A.ct
to establish ~etild tita fo the futitr'the lad should
be patented separately; and' lthai l i'ot ao viagabloe
-;waters thereof should be reserved for the us of, tehe
S public ,under iAhe laws of the states and tev ories

Aff h 9fte 44i4tP of 1866,1870, and 1877,-In e4aluatpng the
eecpt of, tAl cI;Q 1870, and 7, it nij;be borne in
mind, as the .upref eo Court saidc.ini^ /ior niarg Power
Co. v. Beaver Portlan Cement Co., that:.: ,. .
O Clfonrd& Orego, Pfoser Co. v. BeaPer PPortias Cemen Co., 295 U. 8.
1421 156 (1M35),, .,Yi : .: 0 ,
tierres v. Albuuerue Land d IrrigationCo., 188 U. S. 545, 553
(1908). More recent; 'tihuCotrtb"a reirerrI'to the 1877 Act as the means
by which "waters uipbi the public domain 't1 the 'iWd-land states and
territories were dedicated to the use of the public for irrigation and other
purposes." Brush v. Commissioner of Internal Revenue, 300 U. S. 352, 867
(1987).
California Oregon Power Co., v. Beaver Portland Cement Co., 295 U. S.
142, 161 (1985). The court also declared it "inconceivable that Congress
intended to abrogate the common-law right of the riparian patentee for the
benefit of the desert land owner and keep it alive against the homestead or
preemption claimant." 295 U. S. at 162.
U 296 U. S. at 162.
I 295 U. S. at 162. See also Jokes v. Fo, 800 U. S. 82, 95 (1987); United
States v. Gerlack. Lie Stock Up., 339J.8. 725,,747-748 (1950).






As theowner of the publicdomain, the government pos-
seOsed 1 ,Ji.wow t dispose of land and water, hereon
i ;,itogeth eroi t ~ip~s f them ap arately.
AftderAft exam~iationrtifo l thee batui ,sanddecisibns con-
ktruing them, the (odrt added:- .' ,. ;, i; '!-,
9n' ita hld tht -f86 in Act o4f if not
h: l' before; all nbn-naviable waters then. pA '6fle pub-
lic domain became ~ 'isi ssubjet suth~ lenary
i, 'nprol ofTnt0 'edeiii~A' states, 'including thtse since
i A te' out of the territories named, with -the right in
Si c determine for itself to wlat extent th! rule of
Sap rolfkitibn 6 r the^ piom-rin-w Mi6 m. respect of
i aY rgi iht 'shoiil Olbtoin 'Fr since "Cohgress can-
nbt nforic'ether iule un iany state," 'Kansas v. Col-
bra4, 1T.J. 9it, i~ 'tul power (o c e must
remain. wit te te'ate. thJe desert ,Land At does not
bind or piiport ib bind the sat es to any pocy. It
simply recqg zeid e svesan tionin so i as the
United State ind Futi~z re te are cncened, to
the stat and i doctrine o appropriation, and seeks
to remove wha otherwise might be.an impediment to its
ull and successful operation.
Th effect: ofi-he, gtin accorded by these statutes to
the-doctrine of appropriation, sofar as they concern public
lands is subject to certain qualificati6~,. as several de-
cisions of the Suprenie Coirt have'pintled dut; FTr example,
ii its 14899 dpiriio the 'Rimo Gmind easea? the 8'uwrt held

'ii "'the aence "bf specific authority from Congress, a
'State cannot by its'legislation destroy "he iAght of the
United States, as the owner of ladd bbidering on a
Sstrea m, to the ontinued flow iof itaratrae; So far at east
Sas may be necessary fo the beneficial uses of the govern-
ment property *
"* t95 .& at:3- v. Ro ,e I o 14 .. 70 ( .
United Btates v. RBio Grnde Irrigation Co., 174 U. 8. 690, 703 (18980).






By the Acts of ~866,;l70,-and 1877, the Court said that: 10
-'" ;so far as they 'extended, 'Congress recognized and as-
sented to thiappropriation of Water fiiontravention of
the cdrin*mn rawe rule as;to continuous flow. To infer
therefrom that Congress inteded to.release its gohtrol
ov, the ,navgbe strens of jie ~ puntry ag4o grant
:<,; aiCipf mining industries and.the reclamw4tio of arid
SI, dste rig to-approprtethe.,yters on t~isources
; f "avigalbl streams,to such an extent as to, ditroy their
navigability, is to carry thsestatutes beypndwbat their
.fair import ts. ph egslation mibe inter-
preted in the exiting factsthat all trpugh this
mining region, ithe, West were streams, pot nayigable,
w, whose waters. could safely be appropriated for mining
Sand agricultural industriq, without periius interference
with the navigability of the rivers into which those wa-
ters flow. And in reference to all these cases of purely
local interest. the obvious purpose of Congress was to
give its assent so' far as the public lands were concerned,
io any system, although in contravention to the common
'law rule, which permitted the appropriation of those
waters for legitimate industries. To hold thati ,ngress,
by these acts, meant to confer upon any State the right
S to appropriate all the waters of the tributary streams
Si which unite into a navigable watercourse, and isodestroy
!-the navigablity of that watercourse in derogation of
Sthe interests of all the people of the United States, is a
Construction which cannot be tolerated. It ignores the
spirit of the legislation and carries the statute to the
vee of theetI r and far beyond what under, the cir-
cumstance of the case must ebheld to have been the
intent of Ongress.;
I: Winters v. United States, the Court in 1908 held that the
-United States has undeniable power to reserve waters of a non-
navigable Montana stream and exempt the same from appro-
"174 U. S. at 706-707. See also Oklhoma v. Atk wnoni 313 U, ., f8, 523
(19t1).





it
priatibn under state laws, citing the Rio dGrsie case.1* iIt
should be noted, however, that the reservation there involved,
although made after passage of the Acts of 1866, 1870, and 1877,
was effected while Montana was a territory, and thatit was the
result of an agreement between the United States and certain
Indians, ratified by act of Congress."= Such An exempting of
waters from appropriation under state laws has been held by
the United States Court of Appeals for the Ninth W ireuit to
apply with respect to reservations established upon territorial
lands by administrative action, as well as by a treaty."
We should also note here certain comments by the Supreme
Court in disposing of interstate litigation involving the Colo-
rado River. In its 1935 opinion in Arizona v. California, the
Court said:"1'
Tihe Colorado River is a navigable stream of the United
States :The privilege- of the states .through which it
flows and their inhabitants to appropriate and use the
S water is subject to the paramount poter of thb United
States to control it for the purpose of navigation.
The Court had similarly held, in its 1931 decision in Arizona
v. California, that in lawfully exercising its commerce authority
over-waters, the United States need not conform to regulation
by the~ states under their police,power.; And it seems imma,
trial tiat'the federal power there involved was that over com-
merce, instead of some other delegated power. For it is estab-
lished that: l
The federal government is one of delegated powers, and
from that it necessarily follows that any constitutional
exercise of its delegated powers is governmental.
Intervening in a recent suit by Nebraska against Wyoming,
the United States contended that the statutes of 1866, 1870,
Winters v.Vntted States, 207 U. S. 664, itd (S190.)
ee infra, pp. M-5't, 249-250.
SUnited States v. Walker River Irr. Dist., 104 F. 88334, 3338 (0. A.
9,i19839 Uniited Mstes'v. Mel#tire, 101 f. 2d 650,-658-64 (0. A. 9, 193).
298 U. S. 558,' 50 (1936).
.i1283 .1.i. 428, 45i (i931). .
*Federal Land Bank v. Bismarok Co., 314 U. S. 95, 102'1941). '







and 1877 did not divest it of titlee to or control over unappro- j
priated watqr i~ onpavigable strepms in the West.l" 'Th
States, on theother hand, claimed that these statutes constitute
an irrevocable surrender of any right the United States might
have had to control the use of those waters.18 An apparent
sequel to the latte. view would be denial to the United States
of property rights in waters flowing over federal:lands within
the boundaries ,of a state except sa permitted by the law of
that. state.1' In disposing of the case, however, the Supreme
Court found it unnecessary to pass on the confliing. laims.1
: Subsequent Reglation of Use of Waters on Public Lands.-
Subsequent tto: enaetmett of the foregoingthree statuites, Con-
grass in 1897 enacted the following provisionn regulating the tse
of waters within national forests: m
All watersion;such reservations may be used for do-
mestic, mining, milling, or irrigation purposes; under

SSee BBIE= FOB THE UNrITM STATES OF AMEE CA, INTERVjWO, fNe raska v.
Wyoming, October Term, 1944, No. 6 Origbial, pp. tiZ- decided 825 U. S.
589 (1945).
See the following 4led in Nebraska yW.ylomi, n prec dlg,; AWS wR
BRIEF Or COMPLAINANT, STATE OF NEBRASKA,, TO BRIEFS FILE) ON BEHALF
OF THE UiTilED STAtE'BAii'IE STATS Oi C36 BaDnb Ano WY~,ota0; pp. 2-5;
AwSWEB 3BRtu OF DEBpBi ATi b STATE OF WiaMt,;- pp. 6-25, 84-9.; See :also
Oas~yNeson or muE SATE or CgLo&ADO, IMPLEA&nt pMEENBDANT. TO MOTION O
BEHALy OF ToHE 1I=TED, STATEs FOE LEAVE TO ftirs I PErmoN or INTBBVEm-
TIoN, pp. 8-12.
SSee, e. ., 2 'Kinney, 1fateABrGAT AND WATEB RIAGS pp. 1098-1124 (2d ed.
1912).
Nebraska v. WVyomn, 325 U. S. 589, 611-616 (1945). On thiqquestion
general' als* o 2 inn ney, oit., note' preceding, at Iiis; STATE
WATr oi m LAW- Ir~ DEEPMEi or: B .tWzEvi R export to the Waater Re-
sources Co~mmittee by I~ Subcmpiltte ;a.A ;tate W erlatwer oNational
Resources Planning Board,pp. 36-37 (1943); PBESEBVATION OF INTEGmrr
or STATE WiTM LAj b,4epot ;and Recommehatilons of the Committee of
the National Reclamajtion Assoelation, ppi .4 .54. ( 948).,;
Act of June 4, 1897, 1, 80 Stat. 11, 86, 16 U. S. C. 481. Also-enacted
after the Acts of 1866,,A810, wd 1877, stiH other statutes Involving use of
public lands purport to exercise control over acquisiion,-oprights to use of
wRater, or proceed on an assumption of existence of the power to do so. See,
e. g., Act of June 3, 1878, 1 1,20 Stat. 89, see 43 U. S. 311; Act of March 3,
1891, 18, 26 Stat. 1095, 1101, see 43 U. S. C. 946; Act of June 17, 490:2 8,
32 Stat. 388, 390, 4 U S. C. 883, 872; Act of Juni 11, 1906, 8, 4 tat2 283,
284,16U.S^.581 8,t -- \ < .. / : A "







-Itn' the'laws of the Sate wherein 'uhiO forest ieeivivio sij e
situated, or under the laws of the'tfited atids and th
'r- WAdr69gI tios ebtablished6 th6runde..f' s f::
Not lng ter of this legislation, the kAtorne General
hi4 in .1907 pat approp!tion A on forest. hands coud notb
taken independently pf permits issued by appropriate ed
officials rovis ons for rights-of-way had been presri'4eI
by Cores after enactment of the 1897 statute.1" 7,4inm
1916, the Supreme Court sustained the right of the, Federal
. Government to require such conditional permits for entry upon
forest lands, saying:" -
'.*' we .are of opinion that the inclusion within 7
Siate of land of the T itied States does not take 'frori
Congress the powerto control their ocupacy and use,
to protect them from trespass and injury, and to pre-
ecribe the conditions upon which others mipy obtain
rwitsain them, even though this may involve the exer-
cise in some measure of what commonly is known as the
Police power. "A different rule," as was w sa in Cqm-
q, ve: ; > U i~td S tates, supra, "wo~id, loe ,t ,piblie
domain of the United States completely at the iaer~ of
statee legislation?."
SReimation Projecta.-Preliminarily, it should be observed
that t grant of pro tary power to e United States is ne
of control over its property, affording Congress no legislative
control over the states, being limited to authority over federal
property itin their linitm henee the Supreme
Court in 1907 expressly rejected a claim in IKansas v;C2odoado
by the United States of an "inherent" or "sovereign" powd "to
9npt~the ibole system of the reclamAtion, of arid, lands? it

S260 ps. Att'yGen. 4ai 426 (1907).
Act of February 15,1901, 81 Stat. 790, 16 U. S. C. 522, and Act of Febru-
ary 1, 1905, 1 4, 33 Stat. 628, 16 U. 8. C. 524.
"*otah Powier'd L#kt Co. v. Uitited States, 248 1.. 8.89, 405 (1917).
Kansas v. Colorado, 206 U. S. 46, 89,- 2 (1907). For a detailed didces-
sion of irrigation, see Chapter 5, infra, pp. 151-258.







aMiMWRe~di pr prtietwy authority tolegisLtefor the bene-
ft of arid federal lands* ; i. ;j
Many public lands ae arid, and the prperty Clause became
the constitutional foundation for tle .1902 Reclamation Act-
a statute with mahny supplements and amendments compris-
ing Reclamation La' under whii numerous reclamation
and irrigation project have been coiitructed in the it Western
Stat s. When: tie legislation was proposed, its opponents
complained that it would convert thb Government into a "real
estate improvement society" "1 But the Supreme Court had
long before brushed aside a similar objection to the leasing
of public mineral lands on the ground that it would ericroach
on state rights by Itfe creation of a numerous "tenantry"
within their borders, its 1840 decision in United. states v.
Gratiot holding that -the Property Clause permitted such dis-
position of federal property and that the choice of method
was for the discretion ofCongress." .
The few cases passing on the constitutionality of the Recla-
mation Act have su'stined its validity. In United States
V. ffinso6,d the United States Court of Appeals for the Ninth
Circuit deemed it a valid means under the Property Clause
for improving public lands to make them marketable.'80
Rejecting a contention that the work to be done and the
expenditures to be made were not public aad governmental
in character, and not within the limited powers of the Federal
Government, ithe &uiit Court referred to the Property Clause
under which power is "'vested in Cngress without linita-
tion,' and said: is
In pursuance of that power, Congress passed the
reclamation act to'make marketable and habitable large
."206 U. 5. 85-89, 92. Cf. Ashrander v. ennesTsee Valley$ Autlority, 297
U. S. 288, 3301, 3386 (1936).
1'" Act o Jiie 17,, o902, ie stat. 388, as amended and supplemented, 4
U. S. C. 371 et seq.
1" See minority views, H. Rep. No. 794, Part 2, 57th Cong.; let sess., p. 10
(190. ).
lw 14 Pet. 526, 538 (U. S. 1840).
"167 Fed. 881, 888 (0. A. 9, 1909). Of. Twin Falls Canal Co. V. Poote,
192 Fed. 583, 594 (C. C. I. Idaho 1911).
'167 Fed. at 883-884. -


I







. aii areas of desert .land within thefpubli: domain which
lands are valueless and uninhabitable unless reclaimed
,,,by irrigation, and the irrigation whereof is impracticable
exceptupon expenditureof large sums of-money "inthe
construction of a system of reservoirs and distributing
canals. Congress, being the ,wne~ iAf~,the
lands and vested with unlimited authority over the
'.sami, as it has been held by numerous decisions of the
SSupreme Courtlihad unquestionably the right to expend
money thereon for their improvement.'
erring tothe ieamation Fund, a special fundreserved
by the Act to be used in the prosecution of irrigation works,
the Court said that: i
there is no difficulty in the way of holding that he ue;
S-..ofthe funds contemplate by te reclamation act is
for the common welfare. It is as clearly as much
so -as are the grants of lands in aitof I tie 'construction
: df transcontinental railroads which have been judicially
sustained.
In the following year, the same Circuit Court eld in Brley
v. United States that the Federal Government can cons~tution-
ally exercise the power of eminent domain to obtain private
lands necessary for project irrigating both public and private
lands." It pointed out that "the public welfare" requires that
public lands, 'as well as those held in private ownership, should
be reclaimed and made productive."1 And -inregard to the
obje~tie ito be attained in furthering reclamation of the arid
West, the court declared that:"
The policy of reclaiming the arid region of the West for
& beneficial use open to all the people of the United
"t167 Fed. at 88M; for a discussion of the Reclamation Fund, see infra,
p. 198-202.
m179 Fed. 1 (C. A. 9, 1910). ee also (Griths v. Cole, 264 Fed. 369, 373-
874 (D. C. Idaho 1919) concerning the application of surplus water to non-
project lands where there results a lessening of cost to project lands.
2 179 Fed. at 9.
179 Fed. at 11.







'. Statesis as4fieh a national policy bas the preservation of
.i, ivehtAnd baiboiuifor the benefit of navigation.
Moreover, while the validity of the lieclamation Act was not
in isseie in the 19O7 case of Karfia v. Colorado, the United
States Supreme Court iade this enmment respecting the basis
up6n which the program rests:"H:
As t t osepla thin4 the li14 ag the Sti at least
S of .te Wepirn States, the Natipnal Governm nt is the
most consi4eable owner and has power to dispose of
and make all needful rules and regulations respecting its

Another feature of reclamation legislation- prits a t ere.
Section 7 of the 190 Reclamation Act authorizes the Secretary
of the Interior to purchase or condemn any, rits necessary to
the c6rrjihbift of the Act." 8' retion 8; iis providedd:1
That nothing in this Act shall be contrued as affecting
,or inteWnded ,;p.et orfin aT y way ,iterfler with the
laws of any State or Territory relating to the control,
appopriatiop, use, or distribu ion of water used in irri-
gttion, or any vested right acquired thereunder, atd the
Secretary o mhe Interior, in carrying it the provisions

206 U. .48 98 ) (19B ). f Hee UC. oi l. Uted states, 7 U. 48 49'
(-195). And.see 2,ew ;Ye v. Baker. 229 U. 8. 187, 197 1913j where the
objectives of the Reclamation Act were reviewed in detail.
Purthermore, it may be noted that in the 66coAe f litigation over waters
of the Colorado Rirer, tM Supreme Court has referred to eclZamatloblegis-
lation ap an exerelse of federal authority pyder the Propert lane. In
Ariziao v. Califoiria, the Court lield tie older Canyon roect Act to'be
a constitutional exercise of commerce lpor, de;eltinin to rule-w6ther .n1
strction of the da t have been support under tfderal authority to
Itrarrtepub laedrnas, 2 t. 48. 423;, 4B't19I1); But 'In htited Otates v.
Aid-iA, whll denying that a 1904 statute authorizing the Secretary of the
Interior to divert waters from the Colorado River for irrigatingflands in
certain Indian eservatlons could be considered "the- consent of Congress"
necessary under the 1899 River and Harbor Act before placing obstructions
affecting navigable capacity, the Court expressly characterized the former
statute as a part of the Reclamation Laws enacted under the proprietary
authority. 295 U. S. 174, 184-185 (1935).
Act of June 17,1902, i 7,32 Stat. 388,389,43 U. S. C. 421.
"* 8, 82 Stat 890, 48 U. S. 888, 372.







of this At, shtll proceed in e6nformity' with such laws,
and nothing hetei sha~- in any way-dacfctany higt of
S1 any State or of.the Federal Govermaent, or of apy land-
-; owner, appropriator, or user f-water ', to,or from any
.:; i.erstate stream or the waters thereof Provided, That
Sther right t the use of water acuired undr the provi-
::: sions of this AiG shall be apprtenant to theknd irri-
gated anbepdefiial use shll be tJesia theapeasure,
S and the limit of the right. .- '
In the recentGerkzch case, the Coturt nted eVidenC that ad-
i inistrative practice under the :Recli on Law has been to
pay for water rights acquired under state law.* 'AIso, Mr. Jus-
S tie Douglas, concurring in part.and dissenting in part noted a
coinch sionibythe Commisibnr',df Reclamation thatthe almost
invariable practice of the bureau has been to file notices of ap-
piopiiatidns iuder state law without regard to whether the
skream involved was: navigable or nonnavigable1 Speaking
I~ithe Court, Mi. sdtiee' Jikksan declared that it 0as imma-
teria whether ongeso coidi have chosen to take the iiglts
therekirvolved by lerciaf its dominant navigation servitude,
-and after pointing to the language of Section 8, stated: a
We conclude that, whether required todo so 6 nt, Cn-
gre l iected torecognizelny state-created rights and to
take them under its power of emfiieht domain.
O this point, Mr. Justice Douglas concluded that Conigress,
by Section 8: .
agreed to pay (though not required to do so by the Con-
S stitution) for water rights acquired under state law ip
: navigable aa well as nonaavigable streams .. ; .- .
SSectioth 8, 4o received attention in litigation, betweenn the
States of Nebrasla and Wyoming. In its 1935 opinion in Ne-
United States v. Gerlao L4ve Stook Co., 389 U. S. 72f, T78 (1*50').
39 U.S at 760.
3839 U. S. at 739, after referring to InternationUe apet 'Co. v. VntUed
-ftatesj 282 1t.'S 8.9, 407 (1981y. Footnote at end.ok4q ote omitted.
S389 U. S. at 761.
911611-51---5







Sbrcfkavy.. Wyoming, the Supreme Court held that the Secretary
of the Interior ws~sot a necessary party, saying:
The bill alleges,' aid we know as a matter of law, that
i: the S~4ireft~ya idlis agents,'abting by authority of the
Reclaati "Aei At and supplementary legislation, must
S ; obtain permit' and priorities for the use of water from
the Statef W:Wybmigt if the same manner as a private
appropriattr ol an irrigation district formed tinder the
state law. His rights ia fiie no higher than Those of
Wyoming, ad ana adjudication of the defendant'srights
will necessarily bind him. iWyming will stand in judg-
ment for him as for any poer appropriators in thatstate.
Later, the United States became a party in the litigation, and
in the Court's 1945 opinion iniNebraike v. Wyoming, Section
8 was characterized as "' direction by Congress to the Secretary
*of the Interior" to proceed in conformity with state laws in the
appropriation of water for irrigation purposesi. The conse-
quences thus var with the law:of the state involved. I n New
Mexico, for example, a special state statute applies in the case
of federal reclamation projects. Reservation of certain un-
appropriated waters of the state may be effected by a notifica-
tion from the proper federal officer to the State E gineer that
the United States intends to make use of those waters.
One court has held that Section 8 does not constitute a waiver
of immunity of the United States from suit.16 However, apart
from Section 8, the Supreme Court of the Uiiited States was

'295 U. 5,40q, ^43r( ).| ee alsorKa (1907) ; California Oregon. Power o, v.- Bearer Portland alment Co., 295
U. S.'-142, 14 (1i3); Mi 0n Co. V. 4Tt Commission of WTM4aington, 302
U. S. 186, 198-19Q i(Q87) ; Udted States v. West Side rrigating Co., 230 Fed.
284, 290 (D. Wash. 1916) ; United States Hcmbod# lWve;lock Irr. Uight
& Power Co.,'97 F. 24 38, 42 (0. 9,1 3),ct. den., 305U. S. 630 (198).
And compare Firrs loida Hydro-Electric Coop. '. FedBra$ Power Cop eadiuin.,
328 U. S. 152, 164, 175-177 (1946).
m325 U. S. 589, 614 (1945).
~ N. Max. STAT. ANiN. (1941) Vol. 5, 77-531. Of. OKLA. STAT. ANN.
(perm. ed.) Title 82, J 91.
" North Side Canal Go. v. Twin Falls Q.onal to,, 12 F, 2d 311, 318344
(D. .C Idaho 1926).







confronted ih'Ickes v. Fox with a question whether a st8it
Against the Secretary.of the Interior to protect vested rights
tatthe use of writer wa, arsuit against the United States.0 The
Gourt held that',the, United States was not an indispensable
party and declared that suit maintainable dasa action against
a named official challenging his authority to perform the aMt
against which the complaint was made. ti a later decision,
however, the Cort noted that the "ground for decision n:i
Ickes v. Fox is not altogether clear." =
In addition to the foregoing, other constitutional cdiisidera-
tiobiN h s e been involved in litigation concerning federal irri-
gation undertakings. For example, it has been held that dis-
cretion of the Secretary of the Interior may be made conclu-
sive as to the necessity for taig land for suc a project." So
aliso iis decision on the necessity for drainage and.the neth-
ods of conducting the, work.2" The federal right of eminept
domain may be exercised to obtain any rights or mintreat: in
property necessary to carry outan irrigation project.2:1 Lands

n'so V. '. 82,l' ow 7). '
"Larsonu v. BawDetio d Foreign Corp., 884U. 8.2 702; n. 26 ,(198).
0he note continues.: "The Prg pment was made in that case that the Seare-
tary of the Interior had no statutory power to overrule a determination
of the ritts i the plainfirfs made by his predecessor in 6ofice. 800 U. 8.
-st 86. Tbe.to tilob fajury'to'tie plaintiffs was iasd'i~' ed, th reliance on
! t. qtftr.. Weiekt as a biste for .vo4dinig the sovereign's 'liu nity. r The
I court appears to hWe relied .on both grounds without indicatng, whicti
was controlling. It said: 'The suits .*.* are brought to enjoin the
. e '&etaiiy fi the Interior'from enforclg an order, the wrongful,effect of
;which wrll beitopde4riv@1 respondents of vested property rights not 'oily
'acquired under Congressional aets,. state laws, and government contracts,
but settled and determined by his predecessors in ofice. (Emphasis added).
Id. at 96-97.' To support of the conclusion that the EiMt conulibe minsltkfied,
the Court relied first on NftE/v. U*on Ldtgig RB 0 f14 I U 8. 16' (1893),
a decision resting entirely on 'te .a0ficer's l'eil of'statutory power to over-
rale the.de-lsion of his predecessor." (Italics' ad parenthetical ad&flion
are the Court'a)' ; : .'7 ': '
TU Wft&dIBtatase v. BWrley,"172 Fed. 815, 616 (C. C. D. Idah6 1909), af-
firmed, 179 Fed. 1 (C. A. 9, 1910).
United States v. Ide,'277 Fed. 378, 882 (C. A. 8, 1921), affirmed, 263
U... 497 (1924).' See' lsa Yama County Water Users' Assoc. v. Schlecht,
-282 U.S. 188, 15 (19i28). .,
S I"Heenel v.' Uhited States, 287 U. S. 43, 50 (1915).







condemned for a right-of-way. for a danal or ditch required in
carrying out an irrigation project are taken for a public use.f
. Similarly, tbhe* is adequate: constitutional, authority for
acquisition of land for establishment of a new site for a townb,
relocation of which was occasioned by the building of a dam
ad a; reservoir.! Enhancement of valud, resulting from a
projected improvement must be eludedd as: at en lmentof
~asket value as ofe date of jBakigif the lands involved
"were probably within the scope of, the prpiojt from the time
the, Government was committed ;to, it' J" a ewhere
seepage and percolation caused by a federal irrigatiolr project
raised the ground-water table, the injury resulting was hqld to
be incidental, incurring no liability., But the cost of draining
lands flooded by sui seepage and 'percolation must be borne
by the lands within a project."'" hands acquired by coniemn -
ti6n proceedings for irrigation projects are not table by a
subdivision 6f the state."' Nor'ae' they 11a f '"r special
.astehentsY1;i'' -* '..... ... .
EL -mIC PoEl-~3 he rights of the United States as a
proprietor have particular importance connection with the
generaion and sale of electric power. In the 1986 Ashwimnder
case, petitioners airgud that evein "f'the Government Itight
properly dispose of' surplus power necessarily, produced be-
yond its own needs at a dam constructed primarily for naviga-
tion, it'eould not adopt a deliberate plan for generating and
selling power surpius to its own needs." Withbut finding it
necessary to paslp the validity of the TVA Act, the Supreme
Courtheld that, upon the construction. of Wilson Dam in,.aid
of national defense and navigation:"- .
'United 8(deastwv ONeiM, 198 Fe*&. 7l7t6%(Di f( Colo. 1912);
SBroa v. s Ulhdj~a t R ,e.te, 26,8 U. 8.,'. ); '. '
SUnite.,s ta6 wa fi&r, =, U. 90, Sw (104S).
.. .,rtrnows Co. v. United States, 257 U. S.i18, 14514 (1921 ).
Nampa& Meridian Irr. Dist. v. Bond, 28 U. S. 50 (1925).
Un" teL Stateas v.' Po Idaho 19837).
Muolen Benevolent Corp. v. United States, 290 U. S. 89,91 (1988).
'Ashander v. Tennessee Valley Authorlit, 297U. S. 288, 385 (1986).
*U297 U... at 330. This is but a logical eulmlnaalan tf tA.prindple/l-.
ready announced In KauRknot Water owetWCo. V. Green Bd, &t is.. Canal







; The Government acquired full title to the dam site with
i ; riparpriAi rights. The power of falling water was an
inevitable incident of the constructioE of the dam., That
S iwaker power came into the exclusive control of the Fed-
::. P. eral Government. The mechanical energy was convert-
ible into electric energy1 and the water power; the right
to convert it into electric energy and the electric e~erg
!i ; thus produced, constitute property belonging to the
U :' ted States. *
:-: Authority to dispose of property constitutionally
S acquired by the United States is expresslyy 'granted to
the Congress by 3 of Article IV of the Constitutioin.
After obseving that the Property Clause is silent as to the
hieth6d of dipositinni the Court specified that the method
employed must:
be appropriate means of disposition according to the
nature of the property, it must be ope adopted in the
public interest as distinguished from private or, personal
ends, and we may assume that it must be coo tent
with the foundation principles of our dual system of
government apd must1 not be contved t gove te
Concerns reserved to the States.
Thexeupon, ,e Court held valid the disposition method there
ivyg ,e, juc ding acquisition of transmission lines, and that as
to the surplus power, "The Government could lease or selland
fix the terms."2 .
Later, in the Tennessee Electric Power Company case, cer-
tain utility companies operating in the vicinity of existing and
proposed TVA dams sought to enjoin TVA from carrying out
Ai" power program except as related to s~ae of electric energy
generated at Wilson Dam. 'Finding the TVA project to be
Co., 142 U. S. 254 (1891) ; Gree Bay 4 A~ls. Canal o. v. Pattern Paper Co.,
172 UM. 58 (1898), reh. den, 178 U. S. 179 (1899) ; United Satea V. CLhadier-
Dunbar Co., 229 U. S. 58 (1918). ee supra, pp. 19-21.
m 297 U. S. at 338.
m 297 U. S. at 338-389.
.Teneassee BRectric Power Co. v. Tennessee VaUey Authority, 21 F. Supp.
947 (D. C. Tenn. 1938).







reasonably adapted to use for combined navigation, flood con-
trol, power and national defense, the United States District
Court concluded tha the TVA program represented a proper
exercise of the commerce and war powers, and that the electric
energy capable of generation at the dams could properly be sold
in competition with energy offered forisale by private utilities.
Without passing on the merits, the Supreme Court held that the
constitutionality bf federal statute may be challenged only in
a suit seeking to protect a legal right; that the plaintiff utilities
had no legal right to be. free from competition resulting from
activities of the Federal Government; and that business in-
juries resulting from such competition could not provide a basis
for challenging the constitutionality of the TVA Act.21
In another case, suit was brought against TVA to recover
damages for alleged negligence in operation of.its dams during
a period of flood.2 A United States District Court concluded
that Congress did not intend that TVA be "liable in damages
in connection with its handling and manipulating of the waters
placed in its control. Any other idea would be quite contrary
to public policy." .
,USE OF GOVERNMENT PROPERTY FURE FROM INTERFERENCE.-
The United States nmay not be subjected to legal proceedings
at law or in equity without its consent.2 This immunity
"extends to suits of every class." .' Consent to be sued must
be given by act of Congress.219 But such a consent must be
strictly interpreted, "since it is a relinquishment of a sovereign
immunity." o "Where jurisdiction has not been conferred by

Tennessee Electri, Power Co. v. Tennessee VaUey Authority, 808 U. S.
118. (1939) : -
Grant v. Tennessee Valley Authority, 49 Supp. 564. (p. C. Tenn. 1942).
See also Atchley v. Teireeyss Valley Autitt, 6 9 F. Siipp. 952 (D. C. Ala.
1947).
m49 P. Supp. at 566.
*" The Siren, 7 Wall. 152, 154 (U. S. 1868).
= Ill. Cent. R. R. Co. v; Public Utilities Commission, 245 U. S. 493, S05
(1918).
"Belknap v. Child, 161 U. S. 10, 16-17 (1896); Stanley v. Schwalby, 162
U. S. 255, 269-270.
SUnited States v. S~Herwoo, 812 U. S. 584, 590 (1914); III. Cent R. R. Co.
v. Public Utilities Commission, 245 U. S. 493, 504 (1918) .







Coingrbe, 6 officer of the United States has power to give
any court jurisdiction of a suit against the United States'..
Moreover, a proceeding against iropert~y in whifeh the
United- States, has an interest is assuit against the United
States." Accordingly, arofficer of the GoverAment cannot
submit its property to suit."2. Nor; may the conduct of officers
who have no authority to dispose of government property
"caue the: Government to lose its valuable rights by their
acquiescence, laches, or failure to,act"), And its.properties
are not subject to state or local taxes or public ,asessments,2
Also important here is the question of jurisdiction. As to
public-domain lands within a state, -Congress has: 22
the power to control their occupancy and use, to protect
them from trespass and injury and to prescribe the con-
ditions upon which others may obtain rights in them,
even though this may involve the exercise in some meas-
ure of what commonly is known as the police power.
Over such lands the state has civil and criminal jurisdiction
for many purposes, but such jurisdiction cannot be exercised
in any way inconsistent with the rights of the United States.2
In the case of lands purchased by the United St;te wi~t
consent of the state, the jurisdiction theretofore riidin;in the
state passes to the United States, "thereby making the jurigs-
diction of the latter the sole jurisdiction." 2 s But the Ulited
States may share a divided jurisdiction with the state. Thus,
where a state cede land to the United States, but reserves the
rightto~exercise its- taking jurisdiction, such reservation must
be respected by the United States.8" Without an appropriate
M ite ot6 V. United States, 305 U. 8. 382, 388-389 (1939) ; Stanley v.
Sohwalby, 162 U. S. 255, 270 (1896).
M'l mesota v. United States, 305 U. S. 382, 86 (1939).
'Stanley v. SBoalb 192 U. 255, 270 (1896).
United States v. Califor ia, 332 U. S. 19, 40 (1947), decree expanded,
332 U. S. 804 (1947).
oVan Brooklin v. Tennessee, 117 U. S. 151 (1886) ; Mulle Benevolent
Corp. v. united States, 290 U. S. 89,'94 (1938).
Utalh Power & IAht Co. v. United States, 243 U. S. 389, 405 (1917).
"243 U. S. at 404.
m Surplus Trading Co. v. Cook, 281 U. S. 647,652 (1930). See U. S. CoNsT.,
Art. I, 8, el. 17.
2 ColUns v. Yosemite Park & Curry Co., 804 U. S. 518, 530 (1938).






reservation, the state may not exreis, its taxing .jurisdi-
tion.2 -
On the other hand, lands purchased by the United States
without consent of the state are not subject to any juk.isdic_
tional control by the state which "would impair or destroy
their effective use fdr the purpose" .for which they-were 1ao-
quired"1 Over such lands, the United States has the rights
of Ai6 ordinary ptoilitiier, except sotftr as its iscluive jijus-
dietioii is neeessty "for the execution of the powers of the
gerreIal governimet." 2

War Power
In addition to its :constitutional power to "declare War,"
Congress also has express power to levy, taxes and to appropri-
ate funds to provide for the "eonm on' Defence" of the United
States.23" While the scope of these powers as they relate to
water resources remains largely unepplred by the judiciary,
the 1936 Ashwandr case costs some ijght on the subject,
Under the 19j&6 N4tonal Defensei Act, Congress authorized
t* T-President to cause an investigation to ,Ie, ade to:deter-
i~ e the best means for prQd#et'i4W ,f nuirate, and other
prOdUcts! for x ~iti0nse of war; to designate for use by the
United States such sites on rivers or puhic lands as he deemed
necessary to carty but the purposes of the Act; to construct,,
maintain, and operate oh any suchsite navigation improve-
ments and :power houses as he deemed best for generation'oo
power for productiohiof nitrates or other products for muni-
tions of war and, useful in the manufacture of fertilizers and
other useful products.23 The Act also specified that products
of such plants were to be used for military purposes and that
any surplus was to be disposed of under regulations prescribed
by the President. Under this authorization, construction of
2"Standard Oil Co. of California v. Californa, 291 U. S. 242, 244 (1984).
m Fort Leavenwort& R. Co. v. Lowe, 114 U 25, 539 (1885).
114 U. S. at 527.
U. $,CoNsr., Art I, 1 8,els. 1,11; Art. I, 19, cl. 7.
'Ashwander v. Tennessee Valley Authority, 297 U. S. 288 (1966).
Act ot JuneS, 19o J 124, 89 Stat 106, 215, 50 U. S. C,79.




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