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Show 124 NAVIGABLE WATERS appropriate all waters of tributary streams that unite into a navigable watercourse and so destroy its navigability.109 On this latter point, referring to the Rio Grande Dam case, the Oregon Supreme Court observed that the Desert Land Act was not intended to permit appropriators to deplete the flow of nonnavigable water sources to such an extent as to impair materially navigation of the rivers to which such streams directly or indirectly may be tributary, and that:110 The reason for this is plain: To permit an interference with navigation would be to deprive the entire public of a valuable right, which at all times has been recognized as paramount to that of the individual desiring such interference; while to permit an appropriation of water depriving the owner of the land through which it may flow of its use for irrigation, affects such person only. * * * That waters of navigable streams of the United States may be appropriated, subject to the dominant Federal easement, has been specifically recognized by the United States Supreme Court. In Arizona v. California, the Court, declaring the Colorado River to be a navigable stream of the United States, recognized the privilege of the States and individuals therein to appropriate and use the water by holding that this privilege is subject to the paramount navigation authority.111 In United States v. Gerlach Live Stock Company, the Court sustained the power of Congress to build the Friant Dam on the San Joaquin River-the lower sections of which are not only navigable in fact but are navigated-and approved the "realistic" election of Congress to treat it as a reclamation project.112 Two large canals emanating from the ends of the dam carry away from the San Joaquin River large quantities of stored water appropriated for irrigation and other purposes. In the plan of the overall Central Valley Project, of which Friant Dam is a part, the paramount authority of the United States is asserted by naming navigation of the Sacramento and San Joaquin Rivers as one of the purposes. State Law According to the Washington Supreme Court, "no reason is apparent why the [respective] rights of appropriators should depend upon the navigability or nonnavigability of the water appropriated."113 A California district court of appeal has said: 109 United States v. Rio Grande Dam & In. Co., 174 U. S. 690, 703, 704-708 (1899). 110Hough v. Porter, 51 Oreg. 318, 405, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), 102 Pac. 728 (1909). 111 Arizona v. California, 298 U. S. 558, 569 (1936). 112United States v. Gerlach Live Stock Co., 339 U.S. 725, 738-739, 742 (1950). See Blake v. United States, 295 Fed. (2d) 91, 96 (4th Cir. 1961), distinguishing the power of eminent domain from the power to control navigation. 113In re Crab Creek and Moses Lake, 134 Wash. 7,14, 235 Pac. 37 (1925). |
