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Show 28 Having control over water power inherent in a navigable stream, the United States "is liable to no one for its use or nonuse. The flow of a navigable stream is in no sense private property." 106 Hence, in building a dam in a navigable water, the Federal Government must "pay the fair value, judicially determined, for the fast land; nothing for the water power." 107 Summarizing a number of the foregoing principles in its 1945 Willow River opinion, the Supreme Court said:108 Rights, property or otherwise, which are absolute against all the world are certainly rare, and water rights are not among them. Whatever rights may be as be- tween 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 naviga- tion. 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. Denial of compensation for deprivation of riparian interests in the foregoing cases has borne some relation to control of act of lifting the river's mean level to the high-water mark." 339 U. S. at 812, 815. ™ United States v. Appalachian Electric Power Co., 311 U. S. 377, 424 (1940), reh. den., 312 U. S. 712 (1941). "^Sll U. S. at 427, citing Monongahela Navigation Co. v. United, States, 148 U. S. 312, 327 (1893) and United States v. Chandler-Dunbar Co., 229 U.S. 53,66, 76 (1913). 1{* United States v. Willow River Power Co., 324 U. S. 499, 510 (1945). At p. 502, the Court makes this exposition of the philosophy underlying the rule as to compensation, "The Fifth Amendment, which requires just compensa- tion when private property is taken for public use, undertakes to redistribute certain economic losses inflicted by public improvements so that they will fall upon the public rather than wholly upon those who happen to lie in the path of the project. It does not undertake, however, to socialize all losses, but those only which result from a taking of property. If damages from any other cause are to be absorbed by the public, they must be assumed by act of Congress and may not be awarded by the courts merely by implication from the constitutional provision. * * * But not all economic interests are 'property rights'; only those economic advantages are 'rights' which have the law back of them * * *." |