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Show COLORADO RIVER LITIGATION 533 the State Engineer; and the statutes declare in terms that this pro- vision applies to dams to be erected by the United States, Arizona Laws 1929, c. 102, §§ 1-4. See also Revised Code of 1928, §§3280- 3286. The United States has not secured such approval; nor has any application been made by Wilbur? who is proceeding to construct said dam in complete disregard of this law of Arizona. The United States may perform its functions without conforming to the police regulations of a State. Johnson v. Maryland, 254 U.S. 51; Hunt v. United States, 278 U.S. 96. If Congress has power to au- thorize the construction of the dam and reservoir, Wilbur is under no obligation to submit the plans and specifications to the State Engineer for approval.1 And the Federal Government has the power to create this obstruction in the river for the purpose of improving navigation if the Colorado River is navigable. Pennsylvania v. Wheeling and Belmont Bridge Co., 18 How. 421, 430; South Carolina v. Georgia, 93 U.S. 4, 11; Gibson v. United States, 166 U.S. 269; United States v. Chandler-Dwnbar Water Power Co., 229 U.S. 53, 64; Greenleaf John- son Lumber Co. v. Garrison, 237 U.S. 251, 258-68. Arizona contends both that the river is not navigable, and that it was not the purpose of Congress to improve navigation. The bill alleges that "the river has never been, and is not now, a navigable river." The argument is that the question whether a stream is navigable is one of fact; and that hence the motion to dismiss ad- mits the allegation that the river is not navigable. It is true that whether a stream is navigable in law depends upon whether it is navi- gable in fact; United States v. Utah [283 U. S.], p. 64;2 and that a motion to dismiss, like a demurrer, admits every well-pleaded allega- tion of fact, Payne v. Central Pacific Ry. Co., 255 U. S. 228, 232. But a court may take judicial notice that a river within its jurisdiction is navigable. United States v. Rio Grande Dam & Irrigation Co., 174 U. S. 690, 697; Wear v. Kansas, 245 U. S. 154,158. We know judicially, from the evidence of history, that a large part of the Colorado River south of Black Canyon was formerly navigable,3 and that the main obstacles to navigation have been the accumulations of silt coming from the upper reaches of the river system, and the irregularity in 1 The further allegation that the proposed dam, reservoir, and power plants when com- pleted, may not be subject to the taxing power of Arizona may be disregarded. The Act provides that the title to such works shall remain forever in the United States, and such exemption is but an ordinary incident of any public undertaking by the Federal Government. 2 Compare The Daniel Ball, 10 Wall. 557, 563 ; The Montello, 20 Wall. 430; St. Anthony Falls Water Power Co. v. St. Paul Water Commissioners, 168 U.S. 349 ; Leovy v. United States, 177 U.S. 621; Economy Light & Power Co. v. United States, 256 U.S. 113; Oklahoma y. Ttiwas, 258 U.S. 574, 590, 591; Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 86; United States v. Holt State Bank, 270 U.S. 49, 56, 57. a Navigability extended as far north as the mouth of the Virgin River at Black Canyon. See Report Upon the Colorado River of the West, H.R. Ex. Doc. No. 90, 36th Cong., 1st Sess., June 5, 1860, pts. I-II, aad maps; H.R. Mis. Doc. No. 37, 42d Cong., 1st Sess., April 15, 1871; H.R. Ex. Doc. No. 18, 51st Cong., 2d Sess., December 2, 1890 ; H.R. Doc. No. 101, 54th Cong., 2d Sess., December 27, 1895; H.R. Doc. No. 67, 56th Cong., 2d Sess., December 5, 1900; Ann. Rep., Chief of Engineers, War Department, 1879, pp. 1773-85; Hodge, Ari- zona As It Is (1877), pp. 208-10 ; Hinton, Handbook to Arizona (1878), pp. 66-67, 371-72, and maps; Freeman, The Colorado River (1923), cc. I, V, VII, particularly pp. 146-67; Sloan, History of Arizona (1930), vol. i, pp. 216-36. By the Act of July 5, 1884, c. 229, 23 Stat. 133, 144, Congress appropriated $25,000 for the improvement of navigation on the Colorado River between Fart Yuma and a point thirty miles above Rioville, which was located at the mouth of the Virgin River. An additional $10,000 for a levee at Yuma was appropriated by the Act of July 22, 1892. c. 158, 27 Stat. 88, 108-109. See H.R. Doc. Nos. 204 and 237, 58th Cong., 2d Sess.; December 18, 1903. As to navigability north and east of Boulder Canyon, see United States v. Utah [283 U.S. 64]. |
