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Show 134 NAVIGABLE WATERS property of the United States and subject to disposal under Federal law only.162 The Court also stated that as the riverbed itself became the property of the State, subsequent disposal by the United States of riparian tracts on the Idaho side carried with it no right to the bed of the river, "save as the law of Idaho may have attached such a right to private riparian ownership." The error of the Idaho court in holding that riparian patentees took title to the island, which was Government property, was thus corrected. But the previously announced principle that the riparian proprietor takes title to the thread of a navigable stream was not held by the United States Supreme Court to be in error. What the Supreme Court held was that the east bank patentees obtained with their grants no right to the riverbed unless the State law has conferred it-which is what the Idaho court previously had purported to do. However, within a few years thereafter, the Idaho Supreme Court overruled its previous decisions and held the settled law in the jurisdiction to be that the State holds title to the beds of navigable lakes and streams below the natural high watermark for the use and benefit of the whole people, and that the title of upland proprietors to such shores is determined by State law, subject only to rights vested by the constitution of the United States.163 This holding has been reaffirmed in several cases.164 LANDS UNDERLYING NONNAVIGABLE WATERS Title Remains in the United States Where waters are not navigable in fact at the time of establishment of a new State, title of the United States to land underlying them remains unaffected by the change to statehood.165 The provision of the North Dakota Constitution that all flowing streams and natural watercourses shall forever remain the property of the State for mining, irrigating and manufacturing purposes166 does not apply to lands underlying nonnavigable streams and watercourses, nor to lands underlying nonnavigable 162 Reaffirmed in Moss v. Ramey, 239 U. S. 538, 545-546 (1916). 163Callahan v. Price, 26 Idaho 745, 754-755, 146 Pac. 732 (1915). 164See particularly Gasman v. Wilcox, 54 Idaho 700, 703, 35 Pac. (2d) 265 (1934), followed in Driesbach v. Lynch, 71 Idaho 501, 505-506 234 Pac. (2d) 446 (1951). See also Smith v. Long, 76 Idaho 265, 271-272, 281 Pac. (2d) 483 (1955). 165 United States v. Oregon, 295 U. S. 1, 14 (1935); United States v. Utah, 283 U. S. 64, 75 (1931). In Oklahoma v. Texas, 258 U. S. 574, 591-592 (1922), it was held that as no part of the Red River within Oklahoma was navigable, the State acquired no title to the bed, and any lawful claim to any part thereof was only such as might be incidental to its ownership of riparian lands on the north bank; and so as to its grantees and licenses. See State v. Brace, 76 N. Dak. 314, 317, 320-321, 36 N. W. (2d) 330 (1949). 166 N. Dak. Const., art. XVII, § 210. |
