| OCR Text |
Show D ETERMINATION OF NAVIGABILITY 115 After quoting this finding by the special master, the Supreme Court stated that: "It is not denied that this finding embodies the appropriate tests of navigability as laid down by the decisions of this Court." This case dealt with the question of navigability for determining whether or not title to the bed of the waters involved passed to the State on admission to statehood. The court said that this question is "to be determined according to the law and usages recognized and applied in the federal courts, even though, as in the present case, the waters are not capable of use for navigation in interstate or foreign commerce."72 In a case decided in 1894, the Texas Court of Civil Appeals held that the issue of navigability of a body of water should be determined by the jury as one of fact; that evidence of navigability should not be confined to present or past uses of the water as a highway of commerce; and that capacity for such uses should be considered in connection with the future development of the country.73 With respect to the navigability of certain river sections within Utah at the time of admission to the Union, the United States Supreme Court declared that the extent of existing commerce was not the test; that susceptibility rather than mere manner or extent of actual use was the crucial question.74 That is, although evidence of actual use, especially where extensive and continued, was persuasive, yet even in its absence owing to conditions of exploration and settlement, susceptibility to use as a highway of commerce and capacity to meet the needs of expanding population and economic development could still be satisfactorily proved. Later Tests of Navigability The landmark case in developing currently recognized criteria of navigability for determining waters subject to the paramount authority of the United States under the commerce power is the New River decision rendered by the Supreme Court in 1940.75 "The navigability of the New River is, of course," said the Court, "a factual question but to call it a fact cannot obscure the diverse elements that enter into the application of the legal tests as to navigability."76 Note has been made of statements in the New River opinion that availability of a stream for navigation must be considered in addition to evidence of navigability under natural conditions; but consideration of improvements needed to make a stream suitable for commerce, even though not completed or even authorized, may control determinations of navigability (see "Determining Agencies-Congress," above). In addition, said the Court, a waterway is not 72Id. at 14. 73 Jones v. Johnson, 6 Tex. Civ. App. 262, 265-266, 25 S. W. 650 (1894, error refused). 74 United States v. Utah, 283 U. S. 64, 76-87 (1931). 75 United States v. Appalachian Electric Power Co., 311 U. S. 377, 405-410, (1940). 16Id. at 405. |
