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Show 32 the United States of the power to protect adequately its own property, saying that a "different rule would place the public domain of the United States completely at the mercy of the state legislation."12S Federal authority over the use of public lands is thus com- plete and clear. Rights To Use of Water.-Although states may adopt leg- islation respecting the character of rights to the use of water which may be acquired in streams under their dominion, the Supreme Court held over a half-century ago that states may not, by legislation and without the consent of Congress:324 destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters; so far at least as may be necessary for the bene- ficial uses of the government property. Because of the direct importance to our survey, we turn to a consideration of rights to use of water.125 It is elementary that a water right is a right only to the use of water-a right usufructuary in character, not a right to the corpus of the water itself.126 But such a water right is held to be real property, deemed as "fundamental under the law of riparian rights as under the law of appropriation."127 Moreover, the right to have water flow from a stream into a ditch is likewise held to be real property, and a wrongful diversion of water an injury 138 Cornfield v. United States, 167 U. S. 518, 526 (1897). 124 United States v. Rio Grande Irrigation Co., 174 U. S. 690, 703 (1899) ; Kansas \. Colorado, 206 U. S. 46 (1907). Speaking of the need for supremacy of the United States in its field of delegated authority, Mr. Chief Justice Marshall said in M'Culloch v. Mary- land, "To impose on it the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most im- portant designs, and is incompatible with the language of the constitution." 4 Wheat. 316, 424 (U. S. 1819). 128 For a more extensive discussion of these matters, particularly in their relation to irrigation, see infra, pp. 154-167. 126 See, e. g., Lux v. Haggin, 69 Cal. 255, 390, 10 Pac. 674, 753 (1886) ; Met- tler v. Ames Realty Co., 61 Mont. 152, 161-162, 201 Pac. 702, 704 (1921). w I Wiel, Water Rights in the Western States, § 18, p. 21 (3d ed. 1911). |