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Show 20 surplus of water is produced by a nonfederal navigation dam authorized under a state law, the state may retain to itself the authority to dispose of the surplus to private parties and thus reimburse itself for the expenses of the improvement.63 In the second Green Bay case in 1898, a lower riparian owner sought an apportionment of the flow of a navigable river for power purposes, objecting to a diversion, through navigation canals and around its properties, of waters not required for navigation; but the Court sustained the diversion as founded on a grant from the United States which had sole control of the use and disposal of water power at the federal navigation dam.64 Referring to the dominant authority of the Federal Government to erect a navigation dam and avail itself of the incidental water power, the Court there said:65 At what points in the dam and canal the water for power may be withdrawn, and the quantity which can be treated as surplus with due regard to navigation, must be determined by the authority which owns and controls that navigation. In such matters there can be no divided empire. Later, in United States v. Chandler-Duribar Co., the right of the Federal Government to dispose of the water power at a federal navigation dam was reaffirmed in 1913, the Court saying:68 If the primary purpose is legitimate, we can see no sound objection to leasing any excess of power over the needs of the Government. 48 Kaukauna Water Power Co. v. Green Bay & Miss. Canal Co., 142 U. S. 254 (1891). "Green Bay & Miss. Canal Co. v. Patten Paper Co., 172 U. S. 58 (1898), reh. den., 173 U. S. 179 (1899). 68172 U. S. at 80. This conclusion was reached despite the statement of the court below that only 1% of the stream was required for navigation, the diversion of the remaining 99% being for the purpose of creating water power. Green Bay & Miss. Canal Co. v. KauJcauna Water Power Co., 90 Wis. 370, 398, 401, 61 N. W. 1121,1122,1124 (1895). 98 229 U. S. 53, 73 (1913). See also Waters v. Phillips, 284 Fed. 237, 239 (C. A. 7,1922). |