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Show CONTROL OVER NAVIGATION AND NAVIGABILITY 103 In 1904, the California Supreme Court held that the effect of diversions by appropriators of water of a navigable stream upon the navigability of that stream is the concern of the Federal or State governments, and it is not a proper subject of litigation in a suit over conflicting water rights involving only private claimants who are unaffected by the effect on navigability.3 United States: Paramount Authority4 The framers of the United States Constitution expressly delegated to Congress the power to regulate commerce with foreign nations and among the several States, as well as with the Indian tribes.5 Out of this developed the considerable body of Federal law relating to interstate commerce. As commerce includes navigation-which, in the early years of the Republic, was of outstanding importance-regulation of transportation over the inland waterways and control of navigable waters for such purpose became established congressional prerogatives.6 And the later development of this field has included extension of Federal regulation of navigable waters to uses other than navigation, as well as broadening of the classification of waters subject to this regulation. The paramount authority of the United States, acting through the Congress, to control navigable waters of the United States-and other waters to the extent that their control is required in exercising this paramount function-has been repeatedly asserted by Congress and has been, in many decisions, consist- ently sustained by the United States Supreme Court. To cite a few examples: "* * * the great and absolute power of Congress over the improvement of navigable rivers * * * comes from the power to regulate commerce between the States with foreign nations. It includes navigation and subjects every navigable river to the control of Congress."7 "Commerce includes navigation. * * * The power to regulate interstate commerce embraces the power to keep the navigable rivers of the United States free from obstructions to navigation and to remove such obstructions when they exist."8 In the so-called New River decision, rendered in 1940,9 it is said that "there is no doubt that the United States possesses the power to control the erection * Miller & Lux v. Enterprise Canal & Land Co., 142 Cal. 208, 213-214, 75 Pac. 770 (1904). 4 See also the later discussion of this and related subjects in chapter 21. SU.S. Const., art. I, § 8, cl. 3. 6 "It was held early in our history that the power to regulate commerce necessarily included power over navigation." United States v. Appalachian Electric Power Co., 311 U.S. 377, 404 (1940). See United States v. Chicago, M., St. P. & P. R. R., 312 U.S. 592, 595-596 (1941). 7 United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 62 (1913). aAshwander v. Tennessee Valley Authority, 297 U.S. 288, 328 (1936). 9 United States V.Appalachian Electric Power Co., 311 U.S. 377 (1940). See United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 64 (1913). |
