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Show -58- specifically applied by the Court in declaring that states of the arid west are invested with full power to determine whether irrigation, eveu though for the benefit of a limited number of private land owners, is public in its nature; and that when such determination has been reached by a state, there is no ground for objection under the federal constitution.^ "Lands under tide waters are incapable of cultivation or improvement in the manner of lands above high water mark. They are of great value to the public for the purposes of commerce, navigation and fishery. Their improve- ment by individuals, when permitted, is incidental or subordinate to the public use and right. Therefore the title and control of them are vested in the sovereign for the benefit of the whole people• nAt common law, the title and the dominion in lands flowed by the tide were in the King for the benefit of the nation. "Upon the settlement of the Colonies, like rights passed to the grantees in the royal charters, in trust for the com- munities to be established. Upon the Amerioan Revolution, these rights, charged with a like trust, were vested in the original states within their respective borders, subjeot to the rights surrendered by the Constitution to the United States, "Upon the acquisition of a Territory by the United States, whether by cession from one of the states, or by treaty with a foreign country, or by dis- covery and settlement, the same title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several states to be ultimately created out of the Territory. "The new states admitted into the Union since the adoption of the Consti- tution have the same rights as the original states in the tide waters, and in the lands under them, within their respective jurisdictions. The title and rights of riparian or littoral proprietors in the soil below high water mark, therefore, fire governed by the laws of the several states, subject to the rights granted to the United States by the Constitution. "The United States, while they hold the country as a Territory, having all the powers both of national and of municipal government, may grant, for ap- propriate purposes, titles or rights in the soil below high water mark of tide waters. But they have never done so by general laws; and, unless in some case of international duty or public exigency, have acted upon the policy, as most in accordance with the interest of the people and with the object for which the Territories were acquired, of leaving .the administration and disposition of the sovereign nights in navigable waters, and in the soil under them, to the control of the.states, respectively, when organized and admitted into the Union. "Grants by Congress of portions of the public lands within a Territory to settlers thereon, though bordering on or bounded by navigable waters, convey, of their own force, no title or right below high water mark, and do not impair the title a.nd dominion of the future state when "created; but leave the question of the use of the shores by the owners of uplands to the sovereign control of each state, subject only to the rights vested by the Constitution in the United States." Shively v. Bowlby, 152 U.S. 1, 57-58, II4. Sup. Ct. 5U8, 569-570, 38 L. Ed. 331, 352 (189«, Three years later, in St. Anthony Palls Vfater Power Co. v. Board of Ytfater Commr»s of St. Paul, 168 U*S. 3l+9, 18 Sup. Ct. 157, Lfi L. Ed. 1+97 (1897), the Court upheld the right of the City of St» Paul, Minnesota, to divert water from tributaries of the Mississippi River for domestic use to the damage of water power |