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Is, then, the right to choose systems and dispose of waters thereunder a function of the state? Did the United States really own in a proprietary sense the waters or rights of use in the priority states previous to statehood ?
The answer to these questions involves an inquiry into the nature of property in running waters or in the right to use them and also into the relation of the political state thereto.
Running water itself is not subject to ownership at all. Water running stays with no one, but travels far. It crosses lands of different owners, flows past many cities. Sometimes its track is the boundary line between nations. At other times the flow is from one nation into another. This traveling character of running water has fixed its legal status as a thing not subject to ownership, but rather to be classed with other natural media which, although not subject to ownership by any one, are open to the common enjoyment, such as air, light, and wild game. This is true by Roman law,22 civil law,23 common law,24 and by the priority law of the western states 25 When property exists in respect to running waters the property consists not in the water itself in the natural state, but in the right of use. It is the usufruct, not the corpus, that is owned.
If in making the use, a portion of the running water is completely severed from the natural source and reduced to possession property may exist in the severed portion itself,26 but in respect to the water while running in the stream the property, when property exists, is in the right to make a use and not in the corpus.
The relation of the political state to running water is not one of ownership, for the trait of running as much unfits the water for ownership by the state as by individuals. As well might one
Institutes of Justinian, lib. 2, tit. 1, Sec. 1.
23 Pothier, “Traite du Droit de Pro-priete", No. 21; Aubrey & Rau, Droit Civile Francais, 4th Ed. Vol. II, p. 34; Eschriche, “Aguas".
24 Bracton, lib., 2 f. 7, Sec. 5; Embrey vs. Owen, 6 Ex., 355.
28 Embrey vs. Owen, 6 Ex., 353; City vs. Stacey, 169 N. Y., 231; 62 N. E., 354.
say that the political state owns several of the other natural media. The startled hare, the wild duck, the air particles that cross every day the boundary line between the United States and Canadawhose are they while in their condition of nature? No one's. They belong neither to man nor nation, unless or until reduced from that natural condition to one of human possession. The law as to these things might be different. It is conceivable that the political state might say that property should exist in these media while in their natural condition; that the hare, for instance, would be the property of A while on A's land, of B while on B's land, or of the political state while within the boundaries thereof and of the neighboring political state while within the boundaries of the latter. It would be property, however, which would change its owner a dozen times a day, depending upon its physical position-a peculiarity so violative of all our ordinary ideas of property that we are quite satisfied to leave these things as they are now, exempt, while in their natural condition, from being subject to ownership at all. The true relation of the political state to these natural media is one of sovereign jurisdiction and control rather than of ownership—imperium rather than dominium. In the exercise of that jurisdiction and control, the political state, without actually owning these things itself or permitting others to own them, provides for their protection when necessary, regilates their use and prescribes upon what terms title to rights of use may be obtained and by whom. Not only does the political state not own in any proprietary sense the corpus of the running water, but it does not necessarily or ordinarily own in any such sense even a right to use the corpus. True it has sovereign jurisdiction over the corpus. Therefore, it may, if it pleases, exercise that jurisdiction in such wise as to create definite property rights in the corpus or in the use of the corpus, either in favor of itself or in favor of others, but until exercised, the property right either in the corpus or in the use of it has not been created. If there be in the political state ownership of the waters or of the right to use them it is mere “political ownership" for the common enjoyment not for the political state in its private or proprietary capacity.
Some of the Colorado-doctrine commonwealths, bent on putting the waters as far as possible beyond the control of the federal government, have adopted constitutional provisions declaring the waters to be the “property of the public"27 or the "property of the state".28 Even these provisions which are substantially the same in effect 29 are not considered as vesting the state with any property right in the waters or in their use but as affirming sovereign jurisdiction over them. As was said by Mr. Justice Potter, in Farmers Investment Co. vs. Carpenter, et al.30
“There is to be observed no appreciable distinction,
It is said, in VcCready vs. Virginia, 94 U. S., 391,
The ownership of the state is for the benefit of the
27 Colorado Const., Art. 16, Sec. 5.
30 9 Wyoming, 110, 138-139.
the public” or “property of the state”, the state, as rep-
The same justice said also, in Willey vs. Decker 31 :
“The obvious meaning and effect of the expression that the water is the property of the public is that it is the property of the people as a whole. Whatever title, therefore, is held in and to such water resides in the sovereign as representative of the people. The public ownership, if any distinction is material, is rather that of sovereign than proprietor”.
Now, when the United States acquired from the ceding nations the arid western lands which later comprised the priority states, the United States became possessed of sovereign jurisdiction and control over the waters flowing upon and through them. Out of that sovereignty the United States could have created ownership consisting of a right to use the waters or, for that matter, consisting of the very waters themselves had it wanted to do so, but we do not ascribe any such exercise of sovereign power merely from the acquisition of it, where nothing indicates the exercise and where the practice of political states is against it. The United States then never became the owner in any proprietary sense of either the corpus of the running water or of a right to use it.
But, says some one—did not the United States prior to the statehood of the different priority states, grant water rights under the act of '66 and other federal statutes, and could this have been done unless the United States already owned as property the rights granted? By way of answer, it may be said that in order for the United States to vest in another a property right in water or in the use of water it was not necessary that the property right should have been owned by the United States.
Property rights are the product of sovereign jurisdiction. Without its exercise, express or implied, they can not exist, even in the political state itself. Why, then, must the political state in order to vest a property right in another first create the right in itself and then transfer it instead of taking the short cut of creating the right in the other in the first instance? Private owners, indeed, may not grant property rights unless owning them, but political states are not necessarily so limited. They may grant or create the word matters little if we understand the senseproperty rights directly out of their sovereign power. The man who produces liquified air becomes the owner of it, but surely no one would contend that the political state actually owned the air before it was liquified. Nor does the political state own the wild game before reduction to the possesion of the hunter. The opinion of the court by Mfr. Justice White, in Geer rs. Connecticut, declares and cites state supreme court authorities in support, that in the United States wild game, although subject to the sovereign jurisdiction of the state, is not owned by the state in any proprietory sense. The following is taken from the opinion:
“Whilst the fundamental principles upon which the common property in game rests have undergone no change, the development of free institutions has led to the recognition of the fact that the power or control lodged in the state, resulting from this common ownership, is to be exercised, like all other
government, as a trust for the benefit of the people, and not as a prerogative for the advantage of the government, as distinct from the people, or for the benefit of private individuals as distinguished from the public good. Therefore, for the purpose of exercising this power, the state, as held by this court, in Martin vs. Waddell, 16 Pet., 410, represents its people, and the ownership is
32 161 U. S., 519; accord Ex. Parte Bailey, 155 California, 472, 474.