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Show 106 NAVIGABLE WATERS The "contrariety of interests" created by this dual power of sovereignty over navigable waters was thus commented upon by the United States Supreme Court in the New River decision:22 The states possess control of the waters within their borders, "subject to the acknowledged jurisdiction of the United States under the constitution in regard to commerce and the navigation of the waters of rivers." It is this subordinate local control that, even as to navigable rivers, creates between the respective governments a contrariety of interests relating to the regulation and protection of waters through licenses, the operation of structures and the acquisition of projects at the end of the license term. But there is no doubt that the United States possesses the power to control the erection of structures in navigable waters. CLASSIFICATION OF NAVIGABLE WATERS Navigable Waters of the United States Navigable waters of the United States are those usable as such in interstate or foreign commerce23 "when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water."24 Navigable Waters of a State Navigable waters of a stream within a State, which do not conform to the definition of navigable waters of the United States, are navigable waters of that State. In a decision involving title to the ownership of beds of portions of several rivers lying within Utah, the Supreme Court held it to be "undisputed that none of the portions of the rivers under consideration constitute navigable waters of the United States, that is, they are not navigable in interstate or foreign commerce, and the question is whether they are navigable waters of the State of Utah."2S The importance of determining the question of navigability lay in the fact-as will be discussed below under "Lands Underlying Navigable Waters"-that title to the beds of rivers then navigable passed to the State of Utah when it was admitted to the Union, and title to those of nonnavigable rivers remained in the United States. This is a Federal question, and "State laws 22 United States v. Appalachian Electric Power Co., 311 U.S. 377, 405 (1940). 23United States v. Utah, 283 U.S. 64, 75 (1931). 24 The Daniel Ball, 11 U.S. (10 Wall.) 557, 563 (1871). 25 United States v. Utah, 283 U.S. 64, 75 (1931). |