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Show 126 NAVIGABLE WATERS Federal Law "Ownership of a private stream wholly upon the lands of an individual is conceivable; but that the running water in a great navigable stream is capable of private ownership is inconceivable."119 In the absence of controlling local laws limiting the rights of a riparian owner upon a navigable stream, he has private property rights such as those of access and wharfage.120 Such rights, however, are subordinate to the public right of navigation and are of no avail against the absolute power of Congress over the improvement of navigable rivers.121 From the beginning, said the Supreme Court, it has been recognized that all riparian interests in navigable streams are subject to a dominant public interest in navigation.122 Further:123 Whatever rights may be as between equals such as riparian owners, they are not the measure of riparian rights on a navigable stream relative to the function of the Government in improving navigation. Where these interests conflict they are not to be reconciled as between equals, but the private interest must give way to a superior right, or perhaps it would be more accurate to say that as against the Government such private interest is not a right at all. In the New River case, the Supreme Court observed that the power company litigant was a riparian owner with a valid State license to develop the water-power resource, and that consequently it had as complete a right to the use of the riparian lands, the water, and the riverbed as could be obtained under State law.124 But the State and the power company alike hold the water and the lands under them subject to the power of Congress to control the waters under the commerce clause. As the flow of a navigable stream is in no sense private property, "Exclusion of riparian owners from its benefits without compensation is entirely within the Government's discretion."125 Furthermore, the United States may make the erection or maintenance of a structure in a navigable stream dependent upon a license. Thus, when the commerce power of the Federal Government is invoked, riparian water rights of contiguous landowners may be taken for the superior 119 United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53,69 (1913). 120United States v. River Rouge Improvement Co., 269 U. S. 411, 418-419 (1926). 121 United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 62 (1913). 122 United States v. Willow River Power Co., 324 U. S. 499, 507 (1945). 123Id. at 510. 124 Unites States V.Appalachian Electric Power Co., 311 U. S. 377, 423-424 (1940). 12SId. at 424. Compare the Court's language in Unites States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 66 (1913): "But the flow of the stream was in no sense private property, and there is no room for a judicial review of the judgment of Congress that the flow of the river is not in excess of any possible need of navigation, or for a determination that if in excess, the riparian owners had any private property right in such excess which must be paid for if they have been excluded from the use of the same." |
