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Show WATER RIGHTS IN NAVIGABLE WATERWAYS 127 navigation use without compensation. It is otherwise, however, when Congress "realistically" elects to treat an internal improvement (Friant Dam, California) as a reclamation project and provides that construction funds shall be reimbursable in accordance with the reclamation laws.126 Such direction, said the Supreme Court, cannot be twisted into an election on the part of Congress under its navigation power to take such water rights without compensation. Whether Congress could have done so is immaterial; what it did was to elect to recognize any State-created rights and to take them under its power of eminent domain. State Law Decisions in the Western States which recognize the riparian doctrine so far as nonnavigable waters are concerned are not uniform in extending that doctrine to the waters of navigable streams. This is discussed in more detail later in chapter 10. The California courts hold that the riparian doctrine attaches to navigable waters to the extent that their navigability is not interfered with. According to the supreme court, "The riparian owner on a non-tidal, navigable stream has all the rights of a riparian owner not inconsistent with the public easement."127 A district court of appeal expressed the belief that a lake is not excluded from the application of the water rights constitutional amendment of 1928 merely because it is navigable.128 Under "Riparian Rights-Federal Law," above, it is noted that in the case involving Friant Dam, California, the United States Supreme Court held that Congress elected to take any State-created rights on the San Joaquin River-navigable on the lower portion of its course-under its power of eminent domain for reclamation purposes.129 Whether Congress could have taken them under its dominant commerce power was therefore immaterial. Riparian lands that had previously benefited from the annual inundations of San Joaquin River, which ceased with construction of Friant Dam behind which the high floodflows were impounded, were held to have valid riparian water rights under California law for the deprivation of which compensation must be paid. 126 United States v. Gerlach Live Stock Co., 339 U. S. 725, 739 (1950). Also see Blake v. United States, 295 Fed. (2d) 91, 96 (4th Cir. 1961). 121Heilbron v. Fowler Switch Canal Co., 75 Cal. 426, 432-433, 17 Pac. 535 (1888). The fact that San Joaquin River between two indicated points is navigable "does not affect riparian rights." Miller & Lux v. San Joaquin Light & Power Corp., 120 Cal. App. 589, 612, 8 Pac. (2d) 560 (1932). In Antioch v. Williams In. Dist., 188 Cal. 451, 456, 205 Pac. 688 (1922), the claims of riparian rights of the City of Antioch in San Joaquin River, which is actually navigable in this locality, were passed upon by the supreme court without regard to the question of navigability. 128Los Angeles v. Aitken, 10 Cal. App. (2d) 460, 474, 52 Pac. (2d) 585 (1935, hearing denied by supreme court, 1936). The constitutional amendment is Cal. Const., art. XIV, § 3. 129 United States v. Gerlach Live Stock Co., 339 U. S. 725, 739, 754-755 (1950). |