that of the people in their united sovereignty. The com- ""The wild game within a state belongs to the peo- "This same view has been expressed by the supreme court of Minnesota, as follows: "We take it to be the correct doctrine in this country, that the ownership of wild animals, so far as they are capable of ownership, is in the state, not as a proprietor, but in its sovereign capacity as the representative and for the benefit of all its people in common'. State vs. Rodman (58 Minn., 393)". But, says another, when the United States originally acquired the lands, did not the common-law affix a riparian right thereto? The common law is a persistent thing. It has circled the globe. But it is not a straight-jacket into which may be thrust, willynilly, sovereignty itself. The common-law rule of riparian rights did not attach unless it was the law of the United States that it should attach. The United States never declared itself in favor of any such law expressly. The rights that it thus far has expressly defined by its statutes, as by the act of '66, and the Desert Act of '77, have been, although in favor of other persons than the United States itself, rights of the contrary variety-by appropriation. Nor should the law of riparian rights be presumed to have attached by implication grounded on any theory of its sup posed desirability. Indeed, the implication would be the other way. The domain acquired by the United States was a vast one, to which the common-law rule confining the use of waters to riparian lands was not adapted and the expectation was that ultimately the domain would be organized into states and the latter admitted to the Union. Under such circumstances, how much better from an economic and a political point of view to regard the United States as owning no riparian rights in the waters, but rather as possessing that larger power of sovereign jurisdiction out of which could be created later on whatever water-system and rights thereunder might prove the most desirable and to the states thereafter to be created the most acceptable! These considera tions are sufficient to negative the idea that the common-law riparian rule became the law of the United States by any implication based on desirability. Indeed, it is a rule of the common-law itself to abolish a given one of its other rules when the reason for it ceases; or, if I may be pardoned in departing from the English language, which our esteemed president understands so imperfectly and uses with so little facility, and on so few occasions (laughter), to put the idea in a different tongue which I am sure he understands "Cessante ratione legis, cessat et ipsa lex”. But did not the treaties of cession, whereunder the public domain was acquired, vest in the United States a riparian property right? They do not say so,33 and since the public domain acquired by the United States was public domain of the ceding nations the same considerations which render the riparian rule undesirable to the United States must have made it equally so to them. Furthermore, the larger part of the lands of the arid west were acquired from Old Mexico, and as to a considerable portion of such part, namely the portion once falling within the Mexican state of Sonora, the riparian rule did not exist, but, instead, the rule of appropriation. 34 33 Guadaloupe Hidalgo, 9 Stat.. L. 928; Louisiana Purchase. 7 Fed. St. Ann., 542; Boundary Treaty, 7 Fed. St. Ann., 587; Gadsen Purchase, 7 Fed. Stat. Ann., 704. Boquillas Land & Cattle Co. vs. Curtis, 213 U. S., 339. THE STATES SUCCEEDED TO THE SOVEREIGN JURISDICTION OF THE UNITED STATES AND THEREFORE TO THE DISPOSITION OF THE WATERS. When under our federal political system of divided sovereignty the priority states, California, Colorado, and the rest, were admitted, one by one, into the union, they succeeded to the general sovereign jurisdiction formerly possessed by the United States over such of the running waters of the public domain of the United States as were within their respective boundaries.35 Although, speaking not of water, but of another of the natural media, Mr. Justice White said, in Geer vs. Connecticut,36 already once quoted: "Undoubtedly, this attribute of government to control the taking of animals ferae naturae, which was thus recognized and enforced by the common-law of England, was vested in the colonial governments, where not denied by their charters, or in conflict with grants of the royal prerogative. It is also certain that the power that the colonies thus possessed passed to the states with the separation from the mother country, and remains in them at the present day, in so far as its exercise may be not incompatible with, or restrained by, the rights conveyed by the federal government by the constitution". The succession of the state in respect to the running water was to power, not to property, for of the latter the United States had none. Out of the power thus acquired the states could, as could and did the United States before them, create property rights in the use of the waters-could determine the water system and dispose 35 Geer vs. Connecticut, 161 U. S., 519, 527-528; Pollard vs. Hagan, 3 Howard (U. S.), 212; Kansas vs. Colorado, 206 U. S., 46. 33 161 U. S., 519, 527-528. of water rights thereunder. The exercise of this power would be subject only to such appropriation rights as the United States prior to the statehood of any given state had already created, upon appropriations being made under federal statutes, notably those of '66 and of '77, above referred to, when agreeable to "local customs, laws and decisions",37 The old appropriation rights did not harrass or annoy the states in the exercise of the new power for the creation of the rights had been by the federal statutes themselves conditioned, as we have seen, upon agreeableness to "local customs, laws and decisions of court", and the conferment of state sovereignty did not change the local popular will or policy favoring of the priority system. ANALYSIS OF FURTHER AUTHORITIES. We ought to analyze further some of the federal statutes already referred to, and also a number not even mentioned, to ascertain how well they square with the main propositions advanced in this discussion, but the analysis would require more time than the occasion permits. I can only say that the statutes in the main appear to be consistent with what has been advocated here and that where they are not they amount at most to implied declarations that there exists in congress a power of determining who may acquire property rights in the waters or in their use, and the terms of the acquisition. Such declarations are without effect on the states, for the power referred to passed along with other powers of general sovereign jurisdiction. to the states, upon the conferment of statehood. When once a state has come into being, any and all subsequent declarations by congress, either of ownership or of powers of disposition, come too late. The scepter has passed. CONCLUSION. If what has been advocated here is true, we now have reached the following conclusions: First, that the United States acquired 37 A. C., July 26, 1866. from the ceding nations sovereign jurisdiction over the running waters but not property in them or in their use; second, that prior to conferment of statehood upon the priority states the United States never exercised this jurisdiction to create in itself a general proprietary right, either riparian or by appropriation or otherwise, but only to create appropriation rights in others where agreeable to "local customs, laws and decisions"; third, that when the priority states were admitted to the Union they succeeded the United States in the general sovereign jurisdiction over the waters, with no property interest therein or in the use thereof outstanding in favor of the United States; fourth, that this sovereign jurisdiction acquired by the priority state is subject to three restrictions, sovereign not proprietory in character, one of them being that the United States may not in the case of an interstate stream deprive the other state or states of its or their "equitable" porion of the water of the streams, another being that navigability of navigable streams must not be impaired, and the last being subjection to priority rights created by the United States in appropriators prior to statehood; fifth, that under and by virtue of the sovereign jurisdiction thus acquired and to the limitations mentioned, the state became the lawful disposer of the waters, with power to select any water system desired, whether priority, riparian, or, probably, as in the California-doctrine states (and notwithstanding the unsound legal reasoning of that doctrine, to say nothing of its economic inconsistency), the priority and riparian combined, to determine the persons who could acquire rights under the system chosen, the purposes for which the acquisition could be made and the incidents thereof; and with power in the Colorado-doctrine states to dispose, to the exclusion of the federal government, of all the waters not then or yet appropriated. This conclusion, in favor of the power of the state to dispose of its waters to the exclusion of the federal government, is one most of us gathered here to not regret. It seems to accord with |
