| OCR Text |
Show DETERMINATION OF NAVIGABILITY 111 Most of the public lands in Texas, owned by the Republic of Texas, were retained for disposition by the State upon its admission to statehood.48 Those cases cited and discussed above in which the statute was held to be applicable ap- pear to have dealt with the statute's effect upon the disposition of such lands. DETERMINATION OF NAVIGABILITY FOR COMMERCE POWER AND BED TITLE PURPOSES A Federal Question The question of whether particular waters are navigable waters of the United States that are subject to the paramount Federal power over interstate and foreign commerce is a Federal question, not a local one. It is to be deter- mined according to the law and usages recognized and applied in the Federal courts. Also a Federal question is that of whether particular waters are naviga- ble waters, title to the beds of which passed from the Federal Government to the State upon statehood, discussed later.49 This is so, even though no portions of the bodies of water under consideration are navigable in interstate or foreign commerce, so that these particular bodies of water are not navigable waters of the United States.50 Determining Agencies Courts Many determinations as to the navigability or nonnavigability of water- courses have been made by the courts, based upon the facts before them. But in one of the Colorado River decisions, the United States Supreme Court stated that while it is true that whether a stream is navigable in law depends upon whether it is navigable in fact, nevertheless "a court may take judicial notice that a river within its jurisdiction is navigable."51 In this instance, the Court knew judicially, from the evidence of history, that a large part of the lower river was formerly navigable, and that corrections of the changed geographical conditions would, in the opinion of government engineers, restore the feasibility of navigation. In a case decided previously but in the same year, the Court said that:52 in the semiarid part of the State: St. Paul Fire & Marine Ins. Co. v. Carroll, 106 S. W. (2d) 757, 758-759 (Tex. Civ. App. 1937, error dismissed). 48 See Austin v. Hall, supra note 44; Hutchins, W. A., "The Texas Law of Water Rights," pp. 49-50 (1961); Gates, P. W., "History of Public Land Law Development," pp. 82-83 (Nov. 1968). 49 United States v. Oregon, 295 U.S. 1, 14 (1935). See Ozark-Mahoning Co. v. State, 76 N. Dak. 464, 467-468, 37 N. W. (2d) 488 (1949); Lynch v. Clements, 263 Pac. (2d) 153, 155 (Okla. 1953). 50 United States v. Utah, 283 U.S. 64, 75, 82-83 (1931). The navigable portions of the streams in litigation were held to be navigable waters of the State of Utah. "Arizona v. California, 283 U. S. 423, 452-454 (1931). 52 United States v. Utah, 283 U.S. 64, 77 (1931). |
