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Show 114 NAVIGABLE WATERS authority of the United States under the commerce clause. The broad scope of this authority includes, for example, (1) improvement of the present navigability of a river, such as the Mississippi, 'the historical and present navigability of which was unquestioned;65 (2) restoration of the historical navigability of a river, such as the Colorado, which had become nonnaviga- ble;66 and (3) on a river such as New River, which had been held not navigable by both the United States District Court and the Court of Appeals, 4th Circuit,67 improvements needed to make it usable for commercial navigation- that is, navigable in fact. Criteria "Behind all definitions of navigable waters lies the idea of public utility."68 Earlier Tests of Navigability Reference has been made (see "Determining Agencies-Congress," above) to The Daniel Ball case, in which, a century ago, the United States Supreme Court held that:69 Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. * * * For a long time, the foregoing statement continued to be the settled rule in this country.70 In an original suit by the United States against the State of Oregon, decided in 1935, the special master based his conclusion that the waters in litigation were not navigable in fact when Oregon was admitted to the Union, or afterward, on his finding of fact that:71 " * * * neither trade nor travel did then or at any time since has or could or can move over said Divisions, or any of them, in their natural or ordinary conditions according to the customary modes of trade or travel over water; nor was any of them on February 14, 1859, nor has any of them since been used or susceptible of being used in the natural or ordinary condition of any of them as permanent or other highways or channels for useful or other commerce." 6SCubbins v. Mississippi River Commission, 241 U. S. 351, 369 (1916). 66Arizona v. California, 283 U. S. 423, 452-454 (1931). 67 See United States v. Appalachian Electric Power Co., 311 U. S. 377, 398 (1940). 68 Welder v. State, 196 S. W. 868, 873 (Tex. Civ. App. 1917, error refused). 69 The Daniel Ball, 11 U. S. (10 Wall.) 557, 563 (1871). naOklahoma v. Texas, 258 U.S. 574, 586 (1922). See Arizona v. California, 283 U.S. 423, 452 (1931); Clark v. Cambridge & Arapahoe In. & Improvement Co., 45 Nebr. 798, 804-805, 64 N. W. 239 (1895); Taylor Fishing Club v. Hammett, 88 S. W. (2d) 127, 129 (Tex. Civ. App. 1935, error dismissed); State v.Rolio, 71 Utah 91, 103, 262 Pac. 987 (1927). 71 United States v. Oregon, 295 U. S. 1, 15 (1935). |