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Show 71 sate for destruction of interests over which, at the point of conflict, it has a superior navigation easement, the exercise of which occasions the damage. Since the United States has control over the water power inherent in a navigable stream, it is liable to no one for its use or nonuse, and in building a dam, it must pay the judicially determined fair value for the fast land taken, but nothing for the water power. Proprietary Power.-By the Property Clause of the Con- stitution, Congress is entrusted with unlimited authority to control the use of federal public lands. The United States has acquired lands and rights to the use of water in several ways. While states may adopt legislation respecting the character of rights to use of water which may be acquired in streams under their dominion, they may not, by legislation and without the consent of Congress, destroy the rights of the United States, as the owner of lands bordering a stream, to the continued flow of its water, so far at least as may be necessary for the beneficial uses of the government property. By legislation in 1866 and 1870, Congress recognized as valid the appropriation system governing use of water which had grown up among the occupants of public lands under the pecu- liar local necessities of their condition. An 1877 statute de- clares that all nonnavigable streams upon specified public lands in the West shall remain and be held free for the appropriation and use of the public, subject to existing rights. As owner of the public domain, the United States had the power to dis- pose of the land and water thereon together or separately. The Property Clause became the foundation for the 1902 Reclamation Act, the validity of which has been sustained in the few cases where it has been tested. Section 8 of that Act, apart from any constitutional requirement, has recently been held to constitute an election by Congress to "recognize any state-created rights and to take them under its power of eminent domain." Thus, where such rights are necessary in carrying out the Act, they must be purchased or condemned as authorized by Section 7. |