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Show "Originally the United States was the unqualified owner of the corpus of all waters of all innavigable streams of the western states* As the owner of the greater interest, it likewise was the owner of the lesser interest; that is, the usufructuary right to such waters. * * *n Time does not permit a careful consideration of the. arguments opposing this claim of the federal government % but, may I briefly review the position of the states. We find western states admitted to the Union with constitu- tions which provide, as in Wyoming (Sec. $1 of Article I, being a part of "Declaration of Rights")i , "Water being essential to industrial prosperity, of lim- ited amount, and easy of diversion from its natural channels, its control must be in the State, which, in providing for its use, shall equally guard all the various interests involved." Section 5 of Article XVI of the Colorado Constitution statesj "Sec. 5» Water, public property! The water of every natural stream, not heretofore appropriated, within the State of Colorado, is hereby declared to be tte property of the pub- lic, and the seme is dedicated to the use of the people of the State, subject to appropriation as hereinafter provided*" Similar provisions were embodied in the constitutions of other irri- gated land states. Besides the Federal Act of 1866 (li+ Stat. 253) and amending legisla- tion'of 1870 (16 Stat. 218), the Congress by the Act of March 3, 1877 (19 Stat« 377)» known as the Desert Land Act, provided that surplus water "shall remain and be held free for the appropriation and use of the public." Con- gress by these statutes recognized the rights of states to control waters of non-navigable, streams. This control, as is well known, is accomplished by the abrogation of the riparian water rights and resort to the doctrine of prior appropriation. The Supreme Court of the United States in Oregon Power Go*, vs. Beaver Cement Co., 295 U* S* li+2, 155, referring to the Desert Land Act heldj "Following this Act, if not before, all non-navigable waters then omed and belonging to that part of the n'ational domain became pub lie i juris, subject to the plenary control of the arid-land states and territories with the right to de- termine to what extent the rule of appropriation or the common- law rule in respect of riparian rights should obtain*11 In Iokes vs* Pox, supra, the nation's highest tribunal declared that Sec* 8 of the Reclamation Aot of 1902* (referred to in the statement of th.e government made in the case of Nebraska vs» Wyoming and Colorado) that$ -55- |
