OCR Text |
Show "Although the Government-diverted, stored and distributed the water, the contention of petitioner that thereby ownership of the water or water rights became vested in the United States is not well founded. Appropriation was made not for the use of the Government j but, under the Reclamation Act* for the use of the landowners; and by the terms of the law and of the con- tract already referred to, the water rights became the property of the landowners, wholly distinct from the property right of the government in the irrigation works. * * The • Government was and remained simply a carrier and distributor of the water * * with the right to receive the sum stipulated in the contracts' as reimbursement for the cost of construction and annual charges for'operation and maintenance of the works. As security, there- fore, it was provided that the government should have a lien upon the lands and the water rights appurtenant thereto .*• a provision which in itself imports that the- water rights belong to another than the lienor, that is to say, to the landowner." The Federal Power Act (Act of June 10, 1920, Ip. Stat. 1, 1077, Ch. 185, Sec. 27; U. S» Code, 193h edition, Title 16, Ch. 12, Sec. 821) provided that nothing contained in the Act shall in any way interfere with the laws of the respective states relating to the control, appropriation, use and distribu- tion, of water used in irrigation. • Irrespective of this explicit Congressional enactment, we find the gov- ernment in a recent case, United States vs. Appalachian Power Co., 107 F. 2d 769* contends that the primary purpose of this legislation is the control of water power development by the federal government. However, in accord with former decisions, the Circuit Court of Appeals* Fourth Circuit, in November 1939 heldt "* * If the river is not navigable interstate, its con- trol and use (except that downstream navigability of other waters of the United States may not be impaired), is subject to the laws of the State, and not of the federal government. * * *M ., • ' In this same decision the Court saidf n* * Within the proper scope of the interstate commerce power* the control of navigation'by the federal government is plenary; but its sphere of operation is necessarily limited to the protection of commerce which is interstate; the con- trol over purely intrastate rivers and streams, as such, re- mains with the states, whether the waters are navigable or not; and it necessarily follows even an interstate stream which is not in fact navigable for purpose of interstate commerce is not subject to the control of the federal government* except to the extent necessary to protect other fiavigable waters* Fed- eral legislation with respect to navigable waters is permissible only when it has some real and substantial relation to the con- trol of navigation. United States v» River Rouge, Imp. Co., -56- |