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Show - "269 U. S, 4ll, 4l9* 46 S. Ct. l44* 70 L. Ed, 3395 Port of Se- attle v. Oregon & W, R» Co., 255 U. S. 56, 63, 41 S. Ct. .237, 65 L. Ed. 500 $ Wisconsin v. Illinois, 278 U. S* 367* 4l5 * 49 S. Ct. 163* 73 ** Ed. 426« For instance Congress has not au- thority to construct a hydro-electric dam primarily and only for the development and sale of water povrer. Ashwander v« Tennessee Valley Authority, 297 U« S. 288, 333, 56 S* Ct. 466, 80 L. Ed» 6885 Alabama Power Co. v. Gulf Power Co., D» C», 283 F» 606, 6I35 tattle Falls Fibre Co. ?•.Fore & Son, 2l+9 N» Y. 105* 507* 16J+ N,E. 558, affirmed 280 U» S, 369* 50 S. Ct. ¦ lljO, 7k L. Ed. U83." , . Citing Gibbons v# Ogden, 9 Wheat. 1* the Court in the case of the United States v. Appalachian Electric Power Co. * supra, stated* "The federal govern- ment has no property ri$its in navigable streams or in the water thereof." Its control over the stream is limited to its power under the interstate com"* meroe clause of the Constitution. If this statement is* true as to navigable streams it is likewise true as to non-navigable streams. In 1937 the United States Supreme Court in Iokes vs»'Foxj supra* declared* '-Congress had severed the land and water constituting the public domain and established the rule that for the future the lands should be patented separately. Acquisition of the govern- ment title to a parcel of land was not to carry with it a water- right; but all non-navigable waters were reserved for the use of the public under the laws of the various arid-land states." The two decisions last cited establish the principle that the govern- ment has no property rights in water of non-navigable streams and that Con- gress in disposing of the public domain had severed the land and water. Tlnis holding is in accord with the proposition that any interest which the federal government ever had with respect to streams running through the unoccupied public domain, was by virtue of the incidental riparian right. In Kansas vs. Colorado, supra, the Supreme Court announced that a state had full power to adopt any doctrine respecting the use and control of the waters of its natu- ral stream. Therefore, where a state abrogates the common law riparian doo- trine, and such right is recognized by the Supreme Court of the United Sta"t©s* there is only one conclusion, namely, that the government never had any pro- perty rights in such waters* The control of such water under the constitu- tion of the several states is by virtue of the exercise of the political power and is not in contravention with any proprietary rights in the federal government. The government never had any property rights which have been waived or granted away, but the usufructuary rights in water are exercised by the states as one of the powers reserved to the states. As hereinabove* pointed out, water being of a fugitive nature, the corpus is susceptible of use for irrigation only when controlled and the only property rights which, exist in water in its natural state are rigjhts of use. , The aSrove mentioned constitutional provisions of western states, ac- cepted and approved by the Congress of the United States, and the federal enaotments herein noted together with the interpretation of such legisla- tion by the Supreme Court of the United States, sustain the power of the -57- |