The River Rio Grande, within the limits of New Mexico, is not a
stream over which, in its ordinary condition, trade and travel can
be conducted in the customary modes of trade and travel on
water.
The unquestioned rule of the common law was that every riparian
owner was entitled to the continued natural flow of the stream; but
every state has the power, within its dominion, to change this
rule, and permit the appropriation of the flowing waters for such
purposes as it deems wise; whether a territory has this right is
not decided.
By acts of Congress referred to in the opinion, Congress
recognized and assented to the appropriation of water in
contravention of the common law rules, but it is not to be inferred
that Congress thereby meant to confer on 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.
The Act of September 19, 1890, c. 907, on this subject, must be
held controlling at least as to any rights attempted to be created
since its passage.
On May 24, 1897, the United States, by their Attorney General,
filed their bill of complaint in the District Court of the Third
Judicial District of New Mexico against the Rio Grande Dam &
Irrigation Company, the purpose of which was to restrain the
defendant from constructing a dam across the Rio Grande River in
the Territory of New Mexico, and appropriating the waters of that
stream for the purposes of irrigation. A temporary injunction was
issued on the filing of the bill. Thereafter, and on the 19th day
of June, 1897, an amended bill was filed making the Rio Grande
Irrigation & Land Company, Limited, an additional defendant,
the scope and purpose of the amended bill being similar to that of
the original. The amended bill stated that the original defendant
was a corporation organized under the laws of the Territory of New
Mexico, and the new defendant a corporation
Page 174 U. S. 691
organized under the laws of Great Britain. It was averred that
the purpose of the original defendant, as set forth in its articles
of incorporation and as avowed by it, was to construct dams across
the Rio Grande River, in the Territory of New Mexico at such points
as might be necessary, and thereby
"to accumulate and impound waters from said river in unlimited
quantities in said dams and reservoirs, and distribute the same
through said canals, ditches, and pipelines."
The new defendant was charged to have become interested as
lessee of, or contractor with, the original defendant. The bill
further set forth that the new defendant
"has attempted to exercise, and has claimed the right to
exercise, all the rights, and franchises of the said original
defendant, and has given out as its objects, as said agent, lessee,
or assignee, as aforesaid, to construct said dams, reservoirs,
ditches, and pipelines, and take and impound the water of said
river, and thereby to create the largest artificial lake in the
world, and to obtain control of the entire flow of the said Rio
Grande, and divert and use the same for the purposes of irrigating
large bodies of land, and to supply water for cities and towns, and
for domestic and municipal purposes, and for milling and mechanical
power; . . . that the Rio Grande receives no addition to its volume
of water between the projected dam and the mouth of the Conchos
River, about three hundred miles below, and that the said Rio
Grande, from the point of said projected dam to the mouth of the
Conchos River, throughout almost its entire course from the latter
part to its mouth, flows through an exceedingly porous soil, and
that the atmosphere of the section of the country through which
said river flows, from the point above the dam to the Gulf of
Mexico, is so dry that the evaporation proceeds with great
rapidity, and that the impounding of the waters will greatly
increase the evaporation, and that from these causes but little
water, after it is distributed over the surface of the earth, would
be returned to the river."
The bill also averred that the Rio Grande River was navigable,
and had been navigated by steamboats from its mouth three hundred
fifty miles, up to the Town of Roma, in the State of Texas; that
it
Page 174 U. S. 692
was susceptible of navigation above Roma to a point about three
hundred fifty miles below El Paso, in Texas, and then, after
stating that there were certain rapids or falls which there
interfered with navigation, it alleged navigability from El Paso to
La Joya, about one hundred miles above Elephant Butte, the place at
which it was proposed to erect the principal dam, and that it had
been used between those points for the floating and transportation
of rafts, logs, and poles. The bill further alleged
"that the impounding of the waters of said river by the
construction of said dam and reservoir at said point called
'Elephant Butte,' about one hundred and twenty-five miles above the
City of El Paso, said point being in the Territory of New Mexico,
and the diversion of the said waters and the use of the same for
the purposes hereinbefore mentioned, will so deplete and prevent
the flow of water through the channel of said river below said dam,
when so constructed, as to seriously obstruct the navigable
capacity of the said river throughout its entire course from said
point at Elephant Butte to its mouth."
Then, after denying that any authority had been given by the
United States for the construction of said dam, it set forth the
treaty stipulations between the United States and the Republic of
Mexico in reference to the navigability of the Rio Grande so far as
it remained a boundary between the two nations.
To this amended bill the defendants filed their joint and
several pleas and answer. The pleas were principally to the effect
that the site of the proposed dam was wholly within the Territory
of New Mexico, and within its arid region; that, in pursuance of
several acts of Congress, the Secretary of the Interior and the
officers of the Geological Survey had located and segregated from
the public domain a reservoir site called "38," on the river just
above Elephant Butte, and another called "39," just below that
point; that subsequently, in pursuance of another act of Congress,
these and all other reservoir sites were thrown open to corporate
and private entry; that the original defendant had applied to enter
the two sites, "38" and "39;" that it was incorporated under the
laws of New Mexico, and had complied with all the laws
Page 174 U. S. 693
of that territory in reference to the construction of reservoirs
and dams and the diversion of waters of public streams; that it had
duly filed proof of its organization, its maps of survey of
reservoir and canals, with the Secretary of the Interior, and had
secured his approval thereof, in accordance with the laws of the
United States. The answer admitted incorporation, the purpose to
construct a dam and reservoir at Elephant Butte, and then
proceeded:
"But insofar as that portion of said bill is concerned which
charges that the Rio Grande Irrigation & Land Company, Limited,
is seeking to obtain control of the entire flow of said Rio Grande,
and to divert and use the same, these defendants state that the
entire flow of the Rio Grande during the irrigation season at the
point or points where these defendants are seeking to construct
reservoirs upon the same has long since been diverted, and is now
owned and beneficially used by parties other than these defendants,
in which diversion and appropriation of said waters these
defendants have no property rights, and that neither one of the
defendants is seeking or has ever sought to appropriate or divert
by means of structures above referred to, or contemplated
diversion, by means thereof, of any of the waters of said Rio
Grande usually flowing in the bed thereof during the time when the
same are usually put to beneficial use by those who have heretofore
diverted the same; but, on the contrary, these defendants state
that it has been their intention, and their sole intention, by
means of the structures which they contemplate and which are
complained of in said bill, to store, control, divert, and use only
such of the waters of said stream as are not legally diverted,
appropriated, used, and owned by others, and that these defendants
have contemplated and now contemplate that any beneficial rights by
them acquired in such stream by virtue of such structures will be
very largely only so acquired to the excess, storm, and flood
waters thereof now unappropriated, useless, and which go to
waste."
The answer also denied that the river was susceptible of
navigation, or had been navigated, above Roma, in the State of
Texas, or had been used beneficially for the purposes of navigation
in the Territory of New Mexico, or was susceptible
Page 174 U. S. 694
of being so used; that the contemplated use of the waters would
deplete the flow thereof through the channel so as to seriously
obstruct the navigability of the river at any point below the
proposed dam; that defendants were proposing to construct a dam and
reservoir without due process of law, or that the contemplated dam
and reservoir would be a violation of our treaties with Mexico. The
United States filed a general replication. Defendants moved to
dissolve the temporary injunction, while the government moved to
have the several pleas set down for argument as to their
sufficiency as a defense. Several affidavits and documents were
filed by the respective parties. On July 31, 1897, the matters came
on for hearing, whereupon the court entered a decree which recited
that the parties appeared by their counsel
"under the rule heretofore made upon the defendant Rio Grande
Dam & Irrigation Company to show cause, if any it had, why the
injunction heretofore granted, restraining it from maintaining and
erecting a dam in the Rio Grande River at a point called Elephant
Butte, fully described in the original and amended bills filed
herein and in said order, should not be continued, and the said
complainant, the United States of America, having filed an amended
bill in said cause, making the Rio Grande Irrigation & Land
Company, Limited, a party thereunder, and the said defendant, in
answer to said amended bill, having filed a special plea in bar,
and having also answered said amended bill, and also filed a motion
to dissolve the injunction and to dismiss the original and amended
bills so filed by complainant herein, and the complainant thereupon
having filed its motion to set down defendants' pleas for argument
as to their sufficiency as defense to said suit as a matter of law,
and the court, having heard the arguments of counsel and having
read the affidavits, extracts from geological reports, agricultural
reports, reports of engineers and of the Secretary of War,
histories, and other sources of information, and having had
submitted to it an official map of the Territory of New Mexico and
of the United States of America, showing the source, trend, course,
and mouth of the Rio Grande River in New Mexico and throughout the
United States, and being
Page 174 U. S. 695
fully advised thereby, doth take judicial notice of the fact,
and doth thereby determine that the Rio Grande River is not
navigable within the Territory of New Mexico, and doth find as a
matter of law that said amended bill does not state a case
entitling the complainant to the relief asked for in the prayer of
said amended bill, and that the same is without equity; and, the
complainant having further declined to amend said bill, the court
doth order, adjudge, and decree that the said injunction,
heretofore issued herein, be dissolved, and that said cause be, and
the same hereby is, dismissed, and that the defendants have and
recover their reasonable costs, herein to be taxed against
complainant."
An appeal was taken to the supreme court of the territory,
which, on January 5, 1898, affirmed the decree. From this
affirmance, the United States appealed to this Court.
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the court.
The first question is as to the scope of the decision of the
trial court, and what is therefore presented to us for
consideration. Was this a final hearing upon pleadings alone, with
all the facts alleged in the answer admitted to be true, or a final
hearing upon pleadings and proofs, with the decree in effect
finding the truth of those facts? Without stopping to inquire
whether the record shows a strict compliance with the technical
rules of equity procedure, we think the terms of the final order or
decree, as well as the language of the opinion filed by the trial
judge, clearly disclose what he decided, and what therefore is
presented to this Court for review. It appears that no depositions
were taken. Certain affidavits and documents were filed, matter
proper for presentation on an application for the continuance or
dissolution of a temporary injunction. The final order or decree
enumerates
Page 174 U. S. 696
the different motions, and adds that the court, having heard the
arguments of counsel and having read the affidavits, etc.,
"doth take judicial notice of the fact, and doth thereby
determine that the Rio Grande River is not navigable within the
Territory of New Mexico, and doth find as a matter of law that said
amended bill does not state a case entitling the complainant to the
relief asked for in the prayer of said amended bill, and that the
same is without equity, and, the complainant having further
declined to amend said bill,"
the injunction is dissolved and the bill dismissed.
Obviously, the only matter of fact which the court attempted to
determine (and that determination appears to have been based partly
upon the affidavits and documents filed and partly upon judicial
notice) was that the Rio Grande River was not navigable within the
limits of the Territory of New Mexico, and, so determining, it
adjudged and decreed that the complainant's bill was without
equity. In other words, finding that the Rio Grande River was not
navigable within the limits of the Territory of New Mexico, and
that the averments of the bill in that respect were not true, it
held that, conceding all the other averments of the bill to be
true, the plaintiff was not entitled to relief.
The supreme court of the territory, as appears from its opinion,
held that the Rio Grande River was not navigable within the limits
of the Territory of New Mexico; that therefore the United States
had no jurisdiction over the stream, and that, assuming its
nonnavigability within the limits of the territory, the plaintiff
was not, under the other facts set forth in the bill, entitled to
any relief. Whatever criticisms may be expressed as to the form in
which the proceedings were had and the decree entered, these
distinctly appear as the matters decided by the trial and supreme
courts, and to them therefore our inquiry should run.
The trial court assumed to take judicial notice that the Rio
Grande was not navigable within the limits of New Mexico. The right
to do this was conceded by the counsel for the government on the
hearing below -- a concession which the Attorney General, on the
argument before us, declined to
Page 174 U. S. 697
continue. The extent to which judicial notice will go is not, in
all cases, perfectly clear. There are indisputably certain matters
as to which there is a legal imputation of knowledge. In Greenleaf
on Evidence, secs. 4-6, the author enumerates many of these.
Further, he adds as a general proposition: "In fine, courts will
generally take notice of whatever ought to be generally known
within the limits of their jurisdiction."
Brown v. Piper,
91 U. S. 37. While
this will undoubtedly be accepted as an accurate statement of the
law, it is obvious that there might be, and in fact there is, much
difficulty in determining what ought to be generally known. So that
the application of this rule has, as might be expected, led to some
conflict in the authorities.
It was said in
The Apollon, 9
Wheat. 362,
22 U. S. 374:
"It has been very justly observed at the bar that the Court is
bound to take notice of public facts and geographical positions."
In
Peyroux v.
Howard, 7 Pet. 324, the Court held that it was
"authorized judicially to notice the situation of New Orleans
for the purpose of determining whether the tide ebbs and flows as
high up the river as that place."
In
The Montello,
11 Wall. 411,
78 U. S. 414,
it was observed:
"We are supposed to know judicially the principal features of
the geography of our country, and, as a part of it, what streams
are public navigable waters of the United States."
But the force of this general statement is qualified by the
declaration at the close of the opinion:
"As the decree must be reversed and the cause remanded to the
court below for further proceedings, the parties will be able to
present, by new allegations and evidence, the precise character of
Fox River as a navigable stream, and not leave the matter to be
inferred by construction from an imperfect pleading."
This case came again to this Court,
87 U. S. 20 Wall.
430, and the record there discloses that testimony was introduced
on the second hearing, for the purpose of throwing light on the
question of navigability.
In
Wood v. Fowler, 26 Kan. 682, 687, the supreme court
of that state said:
"Indeed it would seem absurd to require evidence as to that
which every man of common
Page 174 U. S. 698
information must know. To attempt to prove that the Mississippi
or the Missouri is a navigable stream would seem an insult to the
intelligence of the court. The presumption of general knowledge
weakens as we pass to smaller and less known streams, and yet,
within the limits of any state, the navigability of its largest
rivers ought to be generally known, and the courts may properly
assume it to be a matter of general knowledge, and take judicial
notice thereof."
It is reasonable that the courts take judicial notice that
certain rivers are navigable and others not, for these are matters
of general knowledge. But it is not so clear that it can fairly be
said, in respect to a river known to be navigable, that it is, or
ought to be, a matter of common knowledge at what particular place
between its mouth and its source navigability ceases. And so it may
well be doubted whether the courts will take judicial notice of
that fact. It would seem that such a matter was one requiring
evidence, and to be determined by proof. That the Rio Grande,
speaking generally, is a navigable river, is clearly shown by the
affidavits. It is also a matter of common knowledge, and therefore
the courts may properly take judicial notice of that fact. But how
many know how far up the stream navigability extends? Can it be
said to be a matter of general knowledge, or one that ought to be
generally known? If not, it should be determined by evidence.
Examining the affidavits and other evidence introduced in this
case, it is clear to us that the Rio Grande is not navigable within
the limits of the Territory of New Mexico. The mere fact that logs,
poles, and rafts are floated down a stream occasionally and in
times of high water does not make it a navigable river. It was said
in
The Montello,
20 Wall. 430,
87 U. S.
439,
"that those rivers must be regarded as public navigable rivers
in law which are navigable in fact, and they are navigable in fact
when they are used, or are susceptible of being used, in their
ordinary condition, as highways for commerce, over which trade and
travel are or may be conducted in the customary modes of trade and
travel on water."
And again (page
87 U. S.
442):
"It is not, however, as Chief Justice Shaw said, 21 Pick.
344,"
"every small creek in
Page 174 U. S. 699
which a fishing skiff or gunning canoe can be made to float at
high water which is deemed navigable, but, in order to give it the
character of a navigable stream, it must be generally and commonly
useful to some purpose of trade or agriculture."
Obviously the Rio Grande, within the limits of New Mexico, is
not a stream over which, in its ordinary condition, trade and
travel can be conducted in the customary modes of trade and travel
on water. Its use for any purposes of transportation has been and
is exceptional, and only in times of temporary high water. The
ordinary flow of water is insufficient. It is not like the Fox
River, which was considered in
The Montello, in which was
an abundant flow of water and a general capacity for navigation
along its entire length, and, although it was obstructed at certain
places by rapids and rocks, yet these difficulties could be
overcome by canals and locks, and
when so overcome would
leave the stream, in its ordinary condition, susceptible of use for
general navigation purposes. We are not, therefore, disposed to
question the conclusion reached by the trial court and the supreme
court of the territory that the Rio Grande, within the limits of
New Mexico, is not navigable.
Neither is it necessary to consider the treaty stipulations
between this country and Mexico. It is true that the Rio Grande,
for several hundred miles above its mouth, forms the boundary
between this country and Mexico, and that the seventh article of
the treaty between the United States and Mexico, of February 2,
1848, 9 Stat. 928, stipulates that
"the River Gila and the part of the Rio Bravo del Norte lying
below the southern boundary of New Mexico being, agreeably to the
fifth article, divided in the middle between the two republics, the
navigation of the Gila and of the Bravo below said boundary shall
be free and common to the vessels and citizens of both countries,
and neither shall, without the consent of the other, construct any
work that may impede or interrupt, in whole or in part, the
exercise of this right, not even for the purpose of favoring new
methods of navigation. . . . The stipulations contained in the
present article shall
Page 174 U. S. 700
not impair the territorial rights of either republic within its
established limits."
But by the fourth article of the Gadsden Treaty of December 30,
1853, 10 Stat. 1034, it was provided that
"the several provisions, stipulations, and restrictions
contained in the seventh article of the Treaty of Guadalupe Hidalgo
shall remain in force only so far as regards the Rio Bravo del
Norte, below the initial of the said boundary provided in the first
article of this treaty; that is to say, below the intersection of
the 31st degree 47'30' parallel of latitude with the boundary line
established by the late treaty dividing said river from its mouth
upwards, according to the fifth article of the Treaty of
Guadalupe."
And on December 26, 1890, a convention was concluded between the
United States and Mexico, 26 Stat. 1512, which provided for an
international boundary commission, to which was given, by article
five, the power to inquire, upon complaint of the local
authorities, whether works were being constructed in the Rio Grande
prohibited by any prior treaty stipulations. There is no suggestion
in the bill that any action by these commissioners was invoked,
although it appears from one of the affidavits that the commission
has been duly constituted. Now it is debated by counsel whether the
construction of a dam at the place named in New Mexico, a place
wholly within the territorial jurisdiction of the United States, is
a violation of any of the treaty stipulations above referred to,
they being primarily, at least, limited to that portion of the
river which forms the boundary line between the two nations, and
also whether the fact that the Rio Grande is partially within the
limits of Mexico would give that nation, under the rules of
international law, any right to complain of the total appropriation
of its waters for legitimate uses of the people of the United
States. Such questions might, under some circumstances, be
interesting and important, but here the Rio Grande, so far as it is
a navigable stream, lies as much within the Territory of the United
States as in that of Mexico, it being, where navigable, the
boundary between the two nations, and the middle of the channel
being the dividing line. Now the obligations of the United States
to preserve, for their own citizens, the
Page 174 U. S. 701
navigability of its navigable waters is certainly as great as
any arising by treaty or international law to other nations or
their citizens, and, if the proposed dam and appropriation of the
waters of the Rio Grande constitute a breach of treaty obligations
or of international duty to Mexico, they also constitute an equal
injury and wrong to the people of the United States.
We may therefore properly limit our inquiry to the effect of the
proposed dam and appropriation of waters upon the navigability of
the Rio Grande, and, in case such proposed action tends to destroy
such navigability, the extent of the right of the government to
interfere. The intended construction of the dam and impounding of
the water are charged in the bill and admitted in the answer. The
bill further charges that the purpose is to obtain control of the
entire flow of the river and divert and use it for irrigation and
supplying waters for municipal and manufacturing uses; that, by
reason of the porous soil, the dry atmosphere, and consequent rapid
evaporation, but little water thus taken from the river and
distributed over the surface of the earth will ever be returned to
the river, and that this appropriation of the waters will so
deplete and prevent the flow of water through the channel of the
river below the dam as to seriously obstruct the navigable capacity
of the river throughout its entire course, even to its mouth. The
answer, while denying an intent to appropriate all the waters of
the Rio Grande, states that the entire flow, during the irrigation
season at the point where defendants propose to construct
reservoirs, had long since been diverted, and was owned and
beneficially used by parties other than defendants, that they did
not seek to disturb such appropriation, but that their sole
intention was to appropriate only such waters as had not already
been legally appropriated, and that the beneficial rights to be
acquired in the stream by virtue of the structures would be very
largely only so acquired from the excess, storm, and flood waters
now unappropriated, useless, and going to waste. In other words,
the bill charges that the defendants, at the places where they
proposed to construct their dam,
Page 174 U. S. 702
intend thereby to appropriate all the waters of the Rio Grande,
and defendants qualify that charge only so far as they say that
most of the flow of the river is already appropriated, and they
only propose to take the balance. The bill charges that such
appropriation of the entire flow will seriously obstruct the
navigability of the river from the place of the dam to the mouth of
the stream. The defendants deny this, but as the court found that
there was no equity in the bill and dismissed the suit on that
ground, we must, for the purposes of this inquiry, assume that it
is true, that defendants are intending to appropriate the entire
unappropriated flow of the Rio Grande at the place where they
propose to construct their dam, and that such appropriation will
seriously affect the navigability of the river where it is now
navigable. The right to do this is claimed by defendants and denied
by the government, and that, generally speaking, is the question
presented for our consideration.
The unquestioned rule of the common law was that every riparian
owner was entitled to the continued natural flow of the stream. It
is enough, without other citations or quotations, to quote the
language of Chancellor Kent, 3 Kent Com. § 439:
"Every proprietor of lands on the banks of a river has naturally
an equal right to the use of the water which flows in the stream
adjacent to his lands, as it was wont to run (
currere
solebat) without diminution or alteration. No proprietor has a
right to use the water to the prejudice of other proprietors above
or below him unless he has a prior right to divert it, or a title
to some exclusive enjoyment. He has no property in the water
itself, but a simple usufruct while it passes along. '
Aqua
currit et debet currere ut currere solevat' is the language of
the law. Though he may use the water while it runs over his land as
an incident to the land, he cannot unreasonably detain it or give
it another direction, and he must return it to its ordinary channel
when it leaves his estate."
While this is undoubted, and the rule obtains in those states in
the Union which have simply adopted the common law, it is also true
that, as to every stream within its dominion,
Page 174 U. S. 703
a state may change this common law rule and permit the
appropriation of the flowing waters for such purposes as it deems
wise. Whether this power to change the common law rule and permit
any specific and separate appropriation of the waters of a stream
belongs also to the legislature of a territory we do not deem it
necessary, for the purposes of this case, to inquire. We concede
arguendo that it does.
Although this power of changing the common law rule as to
streams within its dominion undoubtedly belongs in each state, yet
two limitations must be recognized: first, that, in the absence of
specific authority from Congress, a state cannot, by its
legislation, destroy the right of the United States, as the owner
of lands bordering 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 property; 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 water
courses of the country, even against any state action. It is true
there have been frequent decisions recognizing the power of the
state, in the absence of Congressional legislation, to assume
control of even navigable waters within its limits to the extent of
creating dams, booms, bridges, and other matters which operate as
obstructions to navigability. The power of the state to thus
legislate for the interests of its own citizens is conceded, and
until in some way Congress asserts its superior power and the
necessity of preserving the general interests of the people of all
the states, it is assumed that state action, although involving
temporarily an obstruction to the free navigability of a stream, is
not subject to challenge. A long list of cases to this effect can
be found in the reports of this Court.
See, among others,
the following:
Willson v. Black Bird Creed
Co., 2 Pet. 245;
Gilman v.
Philadelphia, 3 Wall. 713;
Escanaba Co. v.
Chicago, 107 U. S. 678;
Williamette Iron Bridge Co. v. Hatch, 125 U. S.
1.
Page 174 U. S. 704
All this proceeds upon the thought that the nonaction of
Congress carries with it an implied assent to the action taken by
the state.
Notwithstanding the unquestioned rule of the common law in
reference to the right of a lower riparian proprietor to insist
upon the continuous flow of the stream as it was, and although
there has been in all the Western states an adoption or recognition
of the common law, it was early developed in their history that the
mining industry in certain states, the reclamation of arid lands in
others, compelled a departure from the common law rule and
justified an appropriation of flowing waters both for mining
purposes and for the reclamation of arid lands, and there has come
to be recognized in those states, by custom and by state
legislation, a different rule -- a rule which permits, under
certain circumstances, the appropriation of the waters of a flowing
stream for other than domestic purposes. So far as those rules have
only a local significance, and affect only questions between
citizens of the state, nothing is presented which calls for any
consideration by the federal courts. In 1866, Congress passed the
Act of July 26, 1866, c. 262, § 9, 14 Stat. 253; Rev.Stat.
§ 2339:
"Whenever, by priority of possession, rights to the use of water
for mining, agricultural, manufacturing or other purposes, have
vested and accrued, and the same are recognized and acknowledged by
the local customs, laws, and the decisions of courts, the
possessors and owners of such vested rights shall be maintained and
protected in the same, and the right of way for the construction of
ditches and canals for the purposes herein specified is
acknowledged and confirmed; but whenever any person, in the
construction of any ditch or canal, injures or damages the
possession of any settler on the public domain, the party
committing such injury or damage shall be liable to the party
injured for such injury or damage."
The effect of this statute was to recognize, so far as the
United States are concerned, the validity of the local customs,
laws, and decisions of courts in respect to the appropriation of
water. In respect to this, in
Broder v. Water Company,
101 U. S. 274,
101 U. S. 276,
it was said:
Page 174 U. S. 705
"It is the established doctrine of this Court that rights of
miners, who had taken possession of mines and worked and developed
them, and the rights of persons who had constructed canals and
ditches to be used in mining operations and for purposes of
agricultural irrigation, in the region where such artificial use of
the water was an absolute necessity, are rights which the
government had, by its conduct, recognized and encouraged, and was
bound to protect, before the passage of the act of 1866. We are of
opinion that the section of the act which we have quoted was rather
a voluntary recognition of a preexisting right of possession,
constituting a valid claim to its continued use, than the
establishment of a new one."
In 1877, an act was passed for the sale of desert lands, which
contained in its first section this proviso, 19 Stat. 377:
"
Provided, however, that the right to the use of water
by the persons so conducting the same on or to any tract of desert
land of six hundred and forty acres shall depend upon
bona
fide prior appropriation, and such right shall not exceed the
amount of water actually appropriated and necessarily used for the
purpose of irrigation and reclamation, and all surplus water over
and above such actual appropriation and use, together with the
water of all lakes, rivers, and other sources of water supply upon
the public lands and not navigable, shall remain and be held free
for the appropriation and use of the public for irrigation, mining,
and manufacturing purposes subject to existing rights."
On March 3, 1891, an act was passed repealing a prior act in
respect to timber culture, the eighteenth section of which
provided, 26 Stat. 1101:
"That the right of way through the public lands and reservations
of the United States is hereby granted to any canal or ditch
company formed for the purpose of irrigation and duly organized
under the laws of any state or territory which shall have filed, or
may hereafter file, with the Secretary of the Interior a copy of
its articles of incorporation, and due proofs of its organization
under the same, to the extent of the ground occupied by the water
of the reservoir and of the canal and its
Page 174 U. S. 706
laterals, and fifty feet on each side of the marginal limits
thereof; also the right to take, from the public lands adjacent to
the line of the canal or ditch, material, earth and stone necessary
for the construction of such canal or ditch:
provided,
that no such right of way shall be so located as to interfere with
the proper occupation by the government of any such reservation,
and all maps of location shall be subject to the approval of the
department of the government having jurisdiction of such
reservation, and the privilege herein granted shall not be
construed to interfere with the control of water for irrigation and
other purposes under authority of the respective states or
territories."
Obviously, by these acts, so far as they extended, Congress
recognized and assented 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 fail import permits. This legislation
must be interpreted in the light of existing facts -- 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 waters 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
water course, 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,
Page 174 U. S. 707
and carries the statute to the verge of the letter, and far
beyond what, under the circumstances of the case, must be held to
have been the intent of Congress.
But whatever may be said as to the true intent and scope of
these various statutes, we have before us the legislation of 1890.
On September 19, 1890, an act, c. 907, was passed containing this
provision, 26 Stat. 454, § 10:
"That the creation of any obstruction, not affirmatively
authorized by law, to the navigable capacity of any waters, in
respect to which the United States has jurisdiction is hereby
prohibited. The continuance of any such obstruction, except
bridges, piers, docks and wharves, and similar structures erected
for business purposes, whether heretofore or hereafter created,
shall constitute an offense, and each week's continuance of any
such obstruction shall be deemed a separate offense. Every person
and every corporation which shall be guilty of creating or
continuing any such unlawful obstruction in this act mentioned, or
who shall violate the provisions of the last four preceding
sections of this act, shall be deemed guilty of a misdemeanor, and
on conviction thereof shall be punished by a fine not exceeding
five thousand dollars, or by imprisonment (in the case of a natural
person) not exceeding one year, or by both such punishments, in the
discretion of the court; the creating or continuing of any unlawful
obstruction in this act mentioned may be prevented, and such
obstruction may be caused to be removed by the injunction of any
circuit court exercising jurisdiction in any district in which such
obstruction may be threatened or may exist, and proper proceedings
in equity to this end may be instituted under the direction of the
Attorney General of the United States."
As this is a later declaration of Congress so far as it modifies
any privileges or rights conferred by prior statutes, it must be
held controlling, at least as to any rights attempted to be created
since its passage, and all the proceedings of the appellees in this
case were subsequent to this act. This act declares that
"the creation of any obstruction not affirmatively authorized by
law to the navigable capacity of any
Page 174 U. S. 708
waters in respect to which the United States has jurisdiction is
hereby prohibited."
Whatever may be said in reference to obstructions existing at
the time of the passage of the act under the authority of state
statutes, it is obvious that Congress meant that thereafter, no
state should interfere with the navigability of a stream without
the condition of national assent. It did not, of course, disturb
any of the provisions of prior statutes in respect to the mere
appropriation of water of nonnavigable streams in disregard of the
old common law rule of continuous flow, and its only purpose, as is
obvious, was to affirm that, as to navigable waters, nothing should
be done to obstruct their navigability without the assent of the
national government. It was an exercise by Congress of the power,
oftentimes declared by this Court to belong to it, of national
control over navigable streams, and various sections in this
statute, as well as in the Act of July 13, 1892, c. 158, 27 Stat.
88, 110, provide for the mode of asserting that control. It is
urged that the true construction of this act limits its
applicability to obstructions in the navigable portion of a
navigable stream, and that, as it appears that, although the Rio
Grande may be navigable for a certain distance above its mouth, it
is not navigable in the Territory of New Mexico, this statute has
no applicability. The language is general, and must be given full
scope. It is not a prohibition of any obstruction to the
navigation, but any obstruction to the navigable capacity, and
anything, wherever done or however done, within the limits of the
jurisdiction of the United States, which tends to destroy the
navigable capacity of one of the navigable waters of the United
States is within the terms of the prohibition. Evidently Congress,
perceiving that the time had come when the growing interests of
commerce required that the navigable waters of the United States
should be subjected to the direct control of the national
government and that nothing should be done by any state tending to
destroy that navigability without the explicit assent of the
national government, enacted the statute in question, and it would
be to improperly ignore the scope of this language to limit it to
the acts done within the very limits of navigation of a navigable
stream.
Page 174 U. S. 709
The creation of any such obstruction may be enjoined, according
to the last provision of the section, by proper proceedings in
equity under the direction of the Attorney General of the United
States, and it was in pursuance of this clause that these
proceedings were commenced. Of course, when such proceedings are
instituted, it becomes a question of fact whether the act sought to
be enjoined is one which fairly and directly tends to obstruct
(that is, interfere with or diminish) the navigable capacity of a
stream. It does not follow that the courts would be justified in
sustaining any proceeding by the Attorney General to restrain any
appropriation of the upper waters of a navigable stream. The
question always is one of fact, whether such appropriation
substantially interferes with the navigable capacity within the
limits where navigation is a recognized fact. In the course of the
argument, this suggestion was made, and it seems to us not unworthy
of note, as illustrating this thought. The Hudson River runs within
the limits of the State of New York. It is a navigable stream, and
a part of the navigable waters of the United States, so far at
least as from Albany southward. One of the streams which flows into
it and contributes to the volume of its waters is the Croton river,
a nonnavigable stream. Its waters are taken by the State of New
York for domestic uses in the City of New York. Unquestionably the
State of New York has a right to appropriate its waters, and the
United States may not question such appropriation unless thereby
the navigability of the Hudson be disturbed. On the other hand, if
the State of New York should, even at a place above the limits of
navigability, by appropriation for any domestic purposes, diminish
the volume of waters which, flowing into the Hudson, make it a
navigable stream to such an extent as to destroy its navigability,
undoubtedly the jurisdiction of the national government would
arise, and its power to restrain such appropriation be
unquestioned, and, within the purview of this section, it would
become the right of the Attorney General to institute proceedings
to restrain such appropriation.
Without pursuing this inquiry further, we are of the opinion
Page 174 U. S. 710
that there was error in the conclusions of the lower courts;
that the decree must be
Reversed, and the case remanded, with instructions to set
aside the decree of dismissal, and to order an inquiry into the
question whether the intended acts of the defendants in the
construction of a dam and in appropriating the waters of the Rio
Grande will substantially diminish the navigability of that stream
within the limits of present navigability, and, if so, to enter a
decree restraining those acts to the extent that they will so
diminish.
MR. JUSTICE GRAY and MR. JUSTICE McKENNA were not present at the
argument, and took no part in the decision.
