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Show -60- policy, the United States as v/ell as the States became enmeshed in new pro- blems of sovereignty, both internal and external, the satisfactory solution of which remains to this day in abeyance. The limits of the right of riparian sovereigns to divert and consume or otherwise permanently take away water from an international or an interstate river first challenged the attention of the United States Supreme Court in the year 1899; and it is not surprising that the all-pervading and age-old fetish of navigability furnished the rule of decision for the first case. An irrigation company undertood to erect a dam on the upper and non-navigable reaches of the Rio Grande at a point wholly within New Mexico, and there to impound and divert all of the unappropriated waters of that international and interstate river for agriculture and other uses. When the suit of the United States to restrain the completion of this project reached the Supreme Court, that tribunal directed the issuance of a prohibitory injunction if it should appear that the intended diversion would destroy or adversely affect the navigability of the lower Rio Grande, which the Court conceived it to be both the right and the duty of the United States to protect and retain for the benefit of all its oitizens, to say nothing of the discharge of its treaty obligations to Mexico.^+O Thus did "navigable capacity" beccsae the shibboleth of the federal government in seeding to control and regulate diversion from the sources of streams locally non-navigable and lying wholly within one State. It so remains. The inadequacy of such test is strikingly obvious in the arid west, "In. the absence of specific authority from Congress a state cannot by its legislation destroy the right of the United States as owner of the lands bordering on a stream to the continued flow of its waters. wTh.e jurisdiction of the general government over interstate commerce and its natural highways vests in that government the right to take all needed measures to preserve the navigability of the navigable watercourses of the country, even against any state action, "The acts of Congress which permit the appropriation of water in aid of mining industries and for the reclamation' of arid lands do not authorize the appropriation of the waters of the souroe of navigable streams above the point of navigability, to such an extent as to destroy or seriously injure their navigability. "The prohibition by the act of Congress of September 19» I89O, against the crea-tion of any obstruction to the navigable capacity of any waters, in- cludes not only an obstruction in the navigable portion of the stream, but also anything, whatever or however done, to destroy the navigable capacity, of one o:f the navigable waters of the United States •* This case subsequently reached the United States Supreme Court a second and a third timet 181+ U.S. I;l6, 22 Sup. Ct. ij26, ij.6 L. Ed. 6l9 (1902), rev»g 10 N.M. 617, 65 Pac. 276 (1900); 215 U.S. 266, 30 Sup. Ct. 97, 5I4. U Ed. 190 <1909), aff»g 13 N.M. 386, 85 Pac. 393 (1906); but was never• decided on the merits-a permanent injunction as asked by the United States having , finally "been issued in default of an answer to an amended bill of complaint alleging forfeiture of the franchises of the irrigation company for undue delay in proceedings. |