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Show ARKANSAS RIVER LITIGATION 495 islation, so far as such appropriation affected the navigability of the stream, we said (p. 703): "Although this power of changing the common law rule as to streams within its dominion undoubtedly belongs to each State, yet two limitations must be recognized: First, that in the absence of specific authority from G>ngress a State cannot by its legislation destroy the right of the United States, as the owner of lands border- ing on a stream, to the continued flow of its waters; so far at least as may be necessary for the beneficial uses of the Government prop- erty. Second, that it is limited by the superior power of the General Government to secure the .uninterrupted navigability of all navigable streams within the limits of the United States. In other words, the jurisdiction of the General Government over interstate commerce and its natural highways vests in that Government the right to take all needed measures to preserve the navigability of the navigable watercourses of the country even against any state action." It follows from this that if in the present case the National Gov- ernment was asserting^ as against either Kansas or Colorado, that the appropriation for the purposes of irrigation of the waters of the Arkansas was affecting the navigability of the stream, it would be- come our duty to determine the truth of the charges. But the Gov- ernment makes no such contention. On the contrary, it distinctly asserts that the Arkansas River is not now and never was practically navigable beyond Fort Gibson in the Indian Territory, and nowhere claims that any appropriation of the waters by Kansas or Colorado affects its navigability. It rests its petition of intervention upon its alleged duty of legis- lating for the reclamation of arid lands; alleges that in or near the Arkansas River, as it runs through Kansas and Colorado, are large tracts of those lands; that the National Government is itself the owner of many thousands of acres; that it has the right to make such leg- islative provision as in its judgment is needful for the reclamation of all these arid lands and for that purpose to appropriate the acces- sible waters, In support of the main proposition it is stated in the brief of its counsel: "That the doctrine of riparian rights is inapplicable to conditions prevailing in the arid region; that such doctrine, if applicable in said region, would prevent the sale, reclamation, and cultivation of the public arid lands, and defeat the policy of the Government in respect thereto; that the doctrine which is applicable to conditions in said arid region, and which prevails therein, is that the waters of natural streams may be used to irrigate and cultivate arid lands, whether riparian or nonriparian, and that the priority of appropriation of such waters and the application of the same for beneficial purposes establishes a prior and superior right." In other words, the determination of the rights of the two States inter sese in regard to the flow of waters in the Arkansas River is sub- ordinate to a superior right on the part of the National Government to control the whole system of the reclamation of arid lands. * * * Turning to the enumeration of the powers granted to Congress by |
