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Show 40 By the Acts of 1866,1870, and 1877, the Court said that:160 so far as they extended, Congress recognized and as- sented to the appropriation of water in contravention of the common law rule as to continuous flow. To infer therefrom that Congress intended to release its control over the navigable streams of the country and to grant in aid of mining industries and the reclamation of arid lands the right to appropriate the waters on the sources of navigable streams to such an extent as to destroy their navigability, is to carry those statutes beyond what their fair import permits. This legislation must be inter- preted in the light of existing f acts-that all through this mining region in the West were streams, not navigable, whose waters could safely be appropriated for mining and agricultural industries, without serious interference with the navigability of the rivers into which those wa- ters flow. And in reference to all these cases of purely local interest the obvious purpose of Congress was to give its assent, so far as the public lands were concerned, to any system, although in contravention to the common law rule, which permitted the appropriation of those waters for legitimate industries. To hold that Congress, by these acts, meant to confer upon any State the right to appropriate all the waters of the tributary streams which unite into a navigable watercourse, and so destroy the navigability of that watercourse in derogation of the interests of all the people of the United States, is a construction which cannot be tolerated. It ignores the spirit of the legislation and carries the statute to the verge of the letter and far beyond what under the cir- cumstances of the case must be held to have been the intent of Congress. In Winters v. United States, the Court in 1908 held that the United States has undeniable power to reserve waters of a non- navigable Montana stream and exempt the same from appro- lt0174 TJ. S. at 706-707. See also Oklahoma v. Atkinson, 313 U. S. 508, 523 (1941). |