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Show WATER RIGHTS IN NAVIGABLE WATERWAYS 123 since the State did not acquire title to their beds upon statehood, the Federal, not the State, Government ordinarily may still own such beds.105 As suggested by some of the cases discussed above, in a number of States the public may have rights to use the surface of navigable waters for various purposes in addition to navigation, such as fishing, hunting, and swimming. A number of questions regarding the correlation of such uses with riparian or appropriative rights do not appear to have been settled in several States. Such matters are alluded to in chapters 7 to 10. Irrigation and other consumptive uses of navigable water have been involved in determinations of water rights questions (see the immediately succeeding topic). WATER RIGHTS IN NAVIGABLE WATERWAYS Appropriative Rights Subject to the paramount authority of the Federal Government to control navigation and to protect the navigability of navigable streams, the. right to appropriate such waters is generally recognized throughout the West. Many diversions under appropriative rights are made from navigable streams. The effect of acquisition of an appropriative right on a navigable stream is to establish the appropriator's right to make his diversion during the periods in which it does not impair the navigable capacity of the stream. Federal Law By the Acts of 1866 and 1870, Congress recognized and confirmed the acquisition of appropriative rights on the public domain pursuant to local customs, laws, and court decisions.106 By the Desert Land Act of 1877, it was provided that the surplus unappropriated water of nonnavigable sources on the public domain should be available for appropriation by the public for irrigation, mining, and manufacturing purposes.107 In 1890, Congress pro- hibited creation of obstructions to the navigable capacity of waters over which the United States has jurisdiction.108 As noted earlier (see "Classification of Navigable Waters-Other Waters Related to Navigability"), Congress thereby subjected surplus waters of nonnavigable sources on the public domain to appropriation, but reserved its control over the maintenance of navigability of navigable watercourses; and it did not confer upon any State the right to los Unless they were acquired by the State under Federal land grants to the State. But this seems rather unlikely. For a detailed discussion of this complicated subject, see Mann, F. L., Ellis, H. H., and Krausz, N. G. P., "Water-Use Law in Illinois," pp. 82-108 (1964). 10614 Stat. 253, § 9; 16 Stat. 218. 10719 Stat. 377, 43 U.S.C. § 321 (1964). 108 26 Stat. 454, § 10. |
