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They assert state sovereignty over the waters and then proceed by virtue thereof to declare them subject to disposition by the state under the priority system.
The California doctrine states support their riparian system on the same theory they do their priority system-grant by the federal government of a previously existing property right in the use of the waters vested in the United States. It is in consequence of this identity of theory that given a case on the same stream of a prior patent to riparian land and a subsequent appropriation from the same stream, the appropriator is subject to the riparian and vice versa—that, in short, those states have a dual or hybrid system.
FEDERAL GOVERNMENT VS. THE STATE, IN THE SUPREME COURT OF THE UNITED STATES.
We have seen that the states are divided on the question of whether it is the federal government or the state that has the power to dispose of the state waters and in doing so to determine the system the state shall have and the acquisition of rights thereunder.
The controversy, involving as it does, a federal question, is one for which the ultimate decision must come from the Supreme Court of the United States. That the federal government has jurisdiction over the streams of a state for two purposes is certain, and that court has so held: first, (by the commerce clause of the federal constitution) over navigable streams to the extent of preserving the public right of navigation; 10 second, (by Article III, containing the grant of judicial power), in the case of an interstate stream, to secure to each state for its people the use of an "equitable"-not necessarily equal-portion of the water for use therein. But the first does not affect the disposition or determine the disposer of waters to the extent navigation is not impaired, and the second does not affect the disposition or
10 U. S. vs. Rio Grande Irr. Co., 174 U. S., 690.
11 Kansas vs. Colorado, 206 U. S., 46.
determine the disposer of the portion to which under the rule of equitable apportionment any given state is entitled for its people.
On the general question of whether it is the state or federal government which has the power of disposition a few opinions have been rendered, but they are not direct or harmonious enough to be considered as committing the court to a final decision. (1898.) In U. S. vs. Rio Grande Irr. Co., (ut supra) Mr. Justice Brewer, in rendering the opinion, asserted state sovereignty as against all but the United States, apparently not excluding even patentees of the United States, saying:
"It is also true that as to every stream within its dominion a 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:
"1. That in the absence of specific authority from congress a state can not by its legislation destroy the right of the United States as the owner of lands bordering on streams to the continued flow of its waters, so far at least, as may be necessary for the beneficial uses of government property.
2. 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.
* So far as those rules (reference here is
to the rules of the priority system) have only a local
Later, in Kansas vs. Colorado 12 (1906), the opinion of the court, written by the same justice, still asserting state sovereignty, and this time not discussing limitations, contained the following: "But it is useless to pursue the inquiry further in this direction. It is enough for the purpose of this case that each state has full jurisdiction over the lands within its borders, including the beds of streams and other waters, it may determine for itself whether the common-law rule in respect to riparian rights, or that doctrine which obtains in the arid regions of the West, of the appropriation of waters for the purpose of irrigation, shall control. Congress can not enforce either rule upon any state".
In Winters vs. U. S.13 (1908), 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 Co. vs. Curtis, et al.,14 (1909), 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
12 206 U. S., 46.
recognizing the right, even of a territory, to reject the riparian system, said:
"It is not denied that what is called the commonlaw 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 can not be deprived of them now; *
They (the provisions relating to priority) simply follow
such a limitation would substitute accident for the rule
In Los Angeles F. & M. Co. vs. City of Los Angeles,15 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 right. 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 vs. Jordan, 140 U. S., 371, 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 vs. McBride, 197 U. S., 510, a case therein cited".
It also is interesting to note that the United States Circuit Court of Appeals, Eighth Circuit, in Snyder vs. Gold Dredging
15 217 U. S., 217.
Co.16 (1910), 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 non-navigable 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 U. S. vs. Rio Grande Irr. Co., is scarcely consistent with itself, for if the state as against the United States itself can not 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 the congress ought to be permitted to dispose of it to grantees under Art. IV, Sec. 3, Clause 2, conferring on that body "the power to dispose of the territory or other property of the United States".
16 181 Fed., 62