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Show CLASSIFICATION OF NAVIGABLE WATERS 109 right of the United States to the continued flow of the stream waters necessary for the use of contiguous government property, and (2) it is limited by the superior power of the United States to secure the uninterrupted navigability of all navigable streams within the nation. The Court referred to the series of enactments beginning in 186636 by which "Congress recognized and assented to the appropriation of water," so far as the public lands were concerned, under local customs, laws, and decisions of courts, "in contravention of the common law rule as to continuous flow." But it is not to be inferred therefrom that Congress intended to release its control over the navigable streams of the country and to suffer impairment of their navigability for the benefit of western mining and land reclamation. On this important matter the Court said that:37 To hold that Congress, by these acts, meant to confer upon any State the right to appropriate all the waters of the tributary streams which unite into a navigable watercourse, and so destroy the navigability of that watercourse, in derogation of the interests of all the people of the United States, is a con- struction which cannot be tolerated. It ignores the spirit of the legislation and carries the statute to the verge of the letter and far beyond what under the statute to the verge of the letter and far beyond what under the circumstances of the case must be held to have been the intent of Congress. The Court referred to a congressional declaration in 1890 prohibiting the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters in respect to which the United States has jurisdiction.38 This, said the Court:39 * * * did not, of course, disturb any of the provisions of prior statutes in respect to the mere appropriation of water of non-navigable streams in disregard of the old common law rule of continuous flow, and its only purpose, as is obvious, was to affirm that as to navigable waters nothing should be done to obstruct their navigability without the assent of the National Government. It was an exercise by Congress of the power, oftentimes declared by this court to belong to it, of national control over navigable streams; * * * . Thus, Congress, while subjecting surplus waters of nonnavigable sources on the public domain to appropriation by the public,40 has reserved its control over the maintenance of navigability of navigable watercourses.41 36 14 Stat. 253, § 9 (1866); 16 Stat. 218 (1870); 19 Stat. 377 (1877), 43 U.S.C. § 321 (1964); 26 Stat. 1101, § 18 (1891), 43 U.S.C. § 946(1964). 37174 U.S. 690, 706-707 (1889). 38 26 Stat. 426, 454, § 10. 39174 U.S. 690, 708(1899). 4019 Stat. 377, 43 U.S.C. § 321 (1964). 41 26 Stat. 426, 454, § 10. |
