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Show 112 NAVIGABLE WATERS Even where the navigability of a river, speaking generally, is a matter of common knowledge, and hence one of which judicial notice may be taken, it may yet be a question, to be determined upon evidence, how far navigability extends. The syllabus by the Oklahoma Supreme Court in a case relating to the Arkansas River contains the following:53 . . . Where the United States Supreme Court has judicially determined that an Oklahoma river is navigable below a certain point, although such decision and its findings may not be binding upon the parties to subsequent actions in the federal courts, this court will take judicial notice that such stream is navigable below that point, and that title to the river bed where navigable, and also previously conveyed by federal grant, vested in the State of Oklahoma upon its admission as a state. The decision of a State supreme court that a river is navigable, in a litigation to which the United States is not a party, does not bind the United States.54 Nor is a judgment of a State court as to the navigability of a river within the limits of the State binding on the Federal courts in determining whether or not title to the riverbed passed with a Federal grant made prior to the admission of the State to the Union55 or thereafter56. Congress The power of Congress over navigable streams includes improvement and enlargement of their navigability.57 "And the determination of the necessity for a given improvement of navigable capacity, and the character and extent of it, is for Congress alone." Determinations of navigability are made by Congress in specific terms, or clearly implied, in legislating for the control and improvement of waterways. For example, in the Boulder Canyon Project Act, one of the purposes listed by Congress for the authorized construction was "improving navigation and regulating the flow of the Colorado River."58 At that time, there was no navigation on the section of the river where the proposed dam was to be located. The Supreme Court, however, took judicial notice of its former navigability and expressly recognized that "the river is navigable." The Court held that the means provided in the act for regulating the streamflow were not unrelated to the control of navigation. It refused to inquire into the motives S3Lynch v. Clements, 263 Pac. (2d) 153 (Okla. 1953). "Oklahoma v. Texas, 258 U.S. 574, 591 (1922). 55 Aladdin Petroleum Corp. v. State ex rel. Commissioners of Land Office, 200 Okla. 134, 138-139, 191 Pac. (2d) 224 (1948). 56 United States v. Holt State Bank, 270 U.S. 49, 52, 55-56 (1925). " United States v. Chicago, M., St. P. & P. R. R., 312 U. S. 592, 596 (1941). 5845 Stat. 1057, 43 U.S.C. § 617 (1964). |
