Limitations of Federal Control of Water Powers: An Argument Before the ...

Front matter

Google to make the world's books discoverable online.

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject

to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books

II. Limitations Between State And Individual Control Of Water Powers

These limitations, as we have already seen, are determined by the States, and are established by the adjudications of the State Supreme Courts upon these questions. There was formerly, as I have said, great diversity, even conflict, in the different States upon this question, but in recent years adjudications have covered this field of study so thoroughly and clearly that, without substantial exception, the rules of law obtaining in those States which have the common law riparian rights — which include all States not holding to the law of appropriation — as above shown, are fixed, as in Minnesota and in New York. We will thus take one example from the West and one from the East and establish, by the adjudications in these States, the following propositions :

1. The title and power of control by the State over the beds and waters of navigable streams are not in any degree proprietary in nature or extent. They are limited to a holding in trust, as a sovereign, for the specific purpose of protecting a public use, to wit, navigation and certain allied public uses.

2. The tide and the power of the State are subject only to the Federal paramount power of control, as established and defined as above demonstrated. They are limited also by the private proprietary right of the riparian, as fixed by the law of the State.

3. The private riparian owner owns and retains all, and the only, proprietary title, right and interest, either to the beds and waters of such streams or to the usufruct thereof. He has the proprietary right to the beneficial use of the flow of the waters in connection with the natural head and fall upon or opposite his riparian land, and to the whole thereof ; he has a proprietary right to utilize the bed and waters for the development of power and for the operation of water power plants. This right belongs to him JURE NATURAE, that is, because it is a natural resource and right belonging to and appurtenant to his riparian land and a part thereof. And this private proprietary right is subject only to the sovereign right of control by the Federal and State Governments, for the public use of navigation.

4. As between the State and the riparian owner, the sovereign power of control of the former ends where the proprietary right of the latter begins ; and the private right exists up to the point beyond which it would be inconsistent with the specific and linuted public right. This private proprietary right of the riparian is the same, whether the title to the bed of the stream, either below high water or below low water mark, is said to be held by the State or by the riparian. The attempted distinction between the riparian rights, on the basis of the riparian's having a mere easement instead of a title, is, so far as these questions are concerned, purely speculative.

Much confusion has been brought about by the differences in the extent to which different States have released to the riparian owner the naked title in the bed of navigable streams. I shall point out hereafter more specifically that, so far as their substantial effect on the property right of the riparian owner is concerned, these distinctions are really without any difference, — bearing in mind that the ** property right '* of the riparian owner includes not merely that which is covered by his naked fee, whether that fee be limited to the shore or extends to the middle of the stream, but includes all vested property rights of usufruct, all rights of beneficial use which are appurtenant to his fee title. This will be shown by the following cases, where it will be shown also that the right of the State is limited to the mere power of control for the public use of navigation, including allied public interests, like fishing, and, in Minnesota alone (56 Minn., 485), including the use for public water supply.

From the Leading Minnesota Cases.

In Lamprey v. State, 52 Minn. 181, Judge Mitchell said (p. 198):

** In this State we have adopted the common law on the subject of waters, with certain modifications, suited to the difference in conditions between this country and England, the principal of which are the navigability in fact and not the ebb and flow of the tide is the test of navigability, and that we have repudiated the doctrine that the State has any private or proprietary right (as had the King) in navigable waters, but that it holds them in its sovereign capacity, as trustee for the people, for public use.'*

Many years ago the English government established a *' Thames Conservancy Act," giving to a certain commission the power to control water power, and other uses of the Thames. Under that act, the commission (Conservators) attempted to assert a right of control over the beneficial use by the riparian owner of his riparian rights —which the House of Lords held could not be done, and Lord Selboume held:

*' The rights of a riparian proprietor, so far as they relate to any natural stream, exist jure natures, because his land has by nature the advantage of being washed by the stream.**

Lyon V. Fishmongers Co,, 1 L. R. A. App. Cas. 662. (Cited by the Minnesota Court.)

In 1876 the Minnesota Supreme Court held that, with regard to a riparian owner's rights in a navigable stream, and to occupy the bed of the stream by structures in order to obtain advantage of the beneficial use of the waters in the bed of the stream to which he was entitled as riparian owner, such rights are:

** Subordinate and subject only to the navigable rights of the public and such needful rules and regulations for their protection as may be prescribed by competent legislative authority. The rights which thus belong to him, as riparian owner of the abutting premises, are valuable property rights of which he cannot be divested without consent, except by due process of law, and, if for public purposes, upon just compensation."

The Lyon case is among those cited by Judge Gilfillan in 1879, when he held with reference to water powers upon the Mississippi river:

** As it seems to us, none of these opinions state the right too strongly. If the right exists jure naturce, because the land has, by nature, the advantage of being washed by the stream, it is impossible to see how any such distinction as defendant claims can be made as to the peculiar uses which the riparian owner may make of the waters. The limit to the private right is imposed by the public right, and the private right exists up to the point beyond which it would be inconsistent with the public right,

'* We think the right in the riparian owner to put the water to any useful purpose may be sustained by considerations of public policy. It is certainly for the interests of the public that where the waters of a navigable stream may, without interfering with the public right, be put to some useful purpose, the right to so use them should exist.'*

'* We will state the rule at which we have arrived nearly in the language of the court in People v, Tibbetts, 19 N. Y. 523: The riparian owner may undoubtedly use, for any purpose, the water of a navigable stream passing or adjoining his land, for his own advantage, so long as he does not impede the navigation, in the absence of any counter claim by the State or United States."

Morrill v. SL Anthony Falls W, P. Co,, 26 Minn. 222, 228.

In the same year an attempt was made at Minneapolis to assess developed water powers as personal property. In a decision holding that they were part of the real estate, the Supreme Court of Minnesota said:

'* In the recently decided case of Morrill v, St, Anthony Falls Water Power Co,, ante, p, 222, we had occasion to consider the question of the rights of riparian proprietors upon the Mississippi river. The general rule arrived at was that a riparian owner may use the waters of a navigable stream adjoining his land, for any purpose, for his own advantage, so long as he does not impede navigation, and in the absence of any counter-claim by the State or the United States. As the riparian owner has this right to the use of the water, he has a right to enjoy it and make it available, otherwise, his right would be a worthless abstraction. He may, therefore, subject to the limitations of the general rule before stated, use the bed of the stream, if necessary or convenient to the enjoyment of his right to the use of the water. He may erect dams there, and such other structures as will promote and facilitate the enjoyment of this right. For these purposes the riparian proprietor may properly be said to have, if not an interest, certainly a right, in the bed of the stream itself. The right of a riparian proprietor upon a navigable stream, such as the Mississippi, rests, as is held by this court, in the case above cited, upon the fact of riparian ownership ; that is to say, the riparian proprietor possesses this right because he owns the land upon the bank; and this is equivalent to saying that the right is attached as an incident to the riparian land, and belongs and appertains to the same. * * * The defendant is the owner of the bank, and of the right to the use of the water, and, therefore, of the right to make his right to the use of the water available by using the bed of the stream. In the defendant's hands the riparian land, and the right to the use of the water, and to the use of the bed of the stream, are held together. The principal, which is the riparian land, draws to it the incident, which is the right to the use of the water, so that the latter is part and parcel of the former."

State V. Minneapolis Mill Co., 26 Minn. 229, 231.

Riparian land is now assessed upon the basis of two values: (1) The value of the land as such and (2) the value of the water power, developed or undeveloped, which is appurtenant thereto, so that water powers now can be and are taxed.

In the Morrill case above quoted from it was held that " the limit to the private right is imposed by the public right "; and later the Minnesota courts fixed the nature and limits of the public right. In 1892 the Court held:

" It has been decided over and over again by this court that the right of the riparian owner to improve, reclaim and occupy the submerged land in front of his shore estate to the point of navigabiUty is a vested property right, which cannot be taken away, even by the State for a public use, without compensation. Brisbine v. St. Paul, 6f Sioux City

JR. R. Co.f 23 Minn. 114; Union Depots etc,, Co, v. Brunswick, 31 Minn. 297 (17 N. W. Rep. 626); Hanford v, St. Paid &r Duluth R. R, Co,, supra. The old common law doctrine, or at least what has been generally assumed to be such, and which was adopted in some of the early American colonies, that the crown has a. jus privatum or right of private property, in navigable waters and their shores, which it could alienate to a subject, has no place in the jurisprudence of this State. It is the settled law with us that the rights of the State in navigable waters and their beds are sovereign, and not proprietary, and are held in trust for the public as a highway, and are incapable of alienation. Union Depot, etc,, Co. v. Brunswick, supra, Hanford v. St. Paul & Duluth R. R. Co., supra.'*

Bradshaw v. Duluth Imperial Mill Co., 52 Minn. 59. Cited and approved in Gilbert v. Emerson, 55 Minn. 259.

Thus it is determined that the State had no proprietary interest either in the waters or the bed or in the use of the same. It is simply a sovereign interest to protect the waters and bed for navigation uses which are paramount to the rights of the riparian owner.

These public uses are clearly defined, and do not to any degree include the right of the State, in any capacity, to appropriate to itself any right, interest, income or control of water powers appurtenant to private property, either developed or undeveloped, so far as such attempt at appropriation is made for the purpose of giving to the State any benefits in the natural energy or beneficial use of such watfer powers.

Judge Gilfillan held that the most important public use for the protection of which the State had a right of control, was that of navigation.

In 1893, in discussing the paramoimt public uses, Judge Mitchell held that in Minnesota, a proper division of streams, instead of dividing them into navigable and non-navigable, should be a division into public and private waters, and that the public uses which might be protected by the control of the State should include not only navigation, but also fishing, bathing and cutting ice.

Lamprey v. State, 52 Minn. 181, 200.

Next to navigation, the most important public use which is paramount in Minnesota, is that of diversion by cities for public water supply.

Mill Co. V. SL Paul Water Works, 56 Minn. 485.

It is apparent that the building and operation of a dam by a riparian owner for the utilization of his water power cannot interfere with the exercise of the public right to take out waters for public water supply, and that the only effect of such public use would be to some extent to diminish the flow of water. So also such construction and maintenance by a riparian owner could not interfere with fishing or cutting ice, but would rather facilitate such public Use. Fish ways in dams are already provided for by statutes, both state and federal. The only limitation under the law of property to the absolute right to the riparian owner to utilize the water power appurtenant to his land by the construction and maintenance and operation of dams and water power plants is that they should be constructed and maintained so as not to interfere with navigation, and if such interference be made, then the State, exercising its sovereign right of control for the protection of navigation, may prevent such interference. This is the entire extent of the right of the State in navigable waters so far as such right is paramount to the riparian owner's vested property right to the entire natural energy and beneficial use of the waters which flow over or past his lands or which lie adjacent to it.

Therefore, subject only to the control by the State for these specified public uses, navigation, water supply, fishing, etc., the riparian owner has absolute right to all the natural energy and beneficial use of the waters as they pass over or by his land. The fact that he owns the fee only to low water mark does not affect these riparian rights which are his property rights.

** In this State it is the settled doctrine that the riparian owner has the fee to low water mark. Schurmeier v. St. Paul & Pacific R. Co,, 10 Minn. 59 (82); Brisbine v. St, Paul & Sioux City R. Co,, 23 Minn. 114. But while he has only the fee to low water mark, he has certain riparian rights incident to the ownership of real estate bordering upon a navigable stream. Among these are the right to enjoy free communication between his abutting premises and the navigable channel of the river, to build and maintain suitable landings, piers, and wharves, on and in front of his land, and to extend the same therefrom into the river to the point of navigability, even beyond low water mark, and to this extent exclusively to occupy for such and like purposes the bed of the stream, subordinate only to the paramount public right of navigation. Button v. Strong^ 1 Black 22; Railroad Co, V. Schurmeiery 7 Wall. 272; Yates v. Milwaukee, 10 Wall. 497; supra; Rippe v. Chicago, D, fir M. R. Co,, 23 Minn. 18; Brisbine v. St. Paul & Sioux R. Co., supra. These riparian rights are property, and cannot be taken away without paying just compensation therefor. The state could not do it or authorize anyone else to do it. Yates v. Milwaukee, supra; Lyon V. Fishmongers Co., L. R. 1 App. Cas. 662; Brisbine v, St. Paul & Sioux City R. Co., supra.^'

Union Depot Co. v. Brunswick, 31- Minn. 297.

This law of property right was again asserted in 1890:

** In this State the title of the proprietor of lands abutting upon navigable waters extends to low water mark; the bed of the stream or body of water, below water-mark, being held by the State, not in the sense of ordinary absolute proprietorship, but in its sovereign government capacity , for common public use. Union Depot, etc., Co. v. Brunswick, 31 Minn. 297 (17 N. W. Rep. 626), and cases cited. The estate of interest of the riparian owner in the bed of the stream above low water mark is subject to the right of the public to use the same for the purposes of navigation; but restricted only by tiiat paramount public right, tibie riparian owner enjoys valuable proprietary privileges, among which we shall consider particularly the right to &e use of &e land itself for private purposes. A considerable extent of the shores, not only along tide-waters of the ocean coasts, but on our great inland waters, are of such a nature, out to and even beyond low water mark, as to be in general unavailable by the public for the purposes of navigation, and must remain forever waste and useless lands, unless reclaimed by artificial means from the shallow water covering them, or unless otherwise improved. It is established beyond question in this State, and in other states as well, that the pro- ' prietor of the riparian lands may make such improvement. Subject only to the limitation that he shall not interfere with the public right of navigation, he has the unquestionable and exclusive right to construct and maintain suitable landings, piers and wharves into the water and up to the point of navigability for his own private use and benefit.

* "*" * As the right of private use and enjoyment of the improved or reclaimed premises will continue so long, at least, as it does not interfere with the limited and defined public interests, it is obvious that in general,. it may continue forever.

This private right of use and enjoyment is not, we think, limited to purposes connected with the actual use of the navigable water, but may extend to any purpose not inconsistent with the public right. * * *

This right of the riparian proprietor^ even before it has been in any manner exercised by reclaiming or improving the premises, the right itself to reclaim, improve, or occupy, is a property right, vested in him, recognized and protected in the law as property. He cannot be deprived of it without due process of law. It cannot be taken from him, and devoted to public use, without compensation. * * *

These peculiar property rights of the riparian owner constitute, estimated in connection with the riparian land, the chief value of the premises. It may even be tliat the whole value of such real property consists in the right to improve and occupy the submerged lands for private purposes. The extent of the riparian right in this respect is not measured by the value of the upland, nor by the distance to which the owner's estate may extend inland from the shore. The barest strip of upland, though wholly valueless and useless in itself, justifies the owner in the exercise and enjoyment of the privilege of riparian proprietorship to the fullest extent."

* 4( *

We have thus considered that the riparian proprietor has the exclusive right — absolute as respects everyone but the State, and limited only by the public interests of the State for purposes connected with navigation- — to improve, reclaim, and occupy the submerged land, out to the point of navigability, for any private purpose as he might do if it were his separate estate ; that this right, even though it may never have exercised, is recognized and protected by law as property, of which he cannot be deprived even by the State without just compensation."

Hanford et aL v. St, Paul &r'Duluth R, R, Co., 43 Minn. 104.

In 1898, referring to the dam built by a riparian owner on the Red|Lake River, the Supreme Court, in an opinion written by Judge Mitchell, holds that that river is a navigable stream, anfl, referring to the rights of riparian owners, says:

" The fad that the plaintiff did not obtain any license to build the dam does not render it unlawful, A riparian owner has a right, without license, to construct a dam across a stream which does not obstruct or interfere with the navigation of the stream for the purposes for which it is navigable. This is a right which is appurtenant to the ownership of the bank.**

Kretzschmar v. Meehan et ah, 74 Minn. 211, 215.

In 1909, referring to a dam built and maintained by a riparian owner on the Snake River, the Supreme Court, after holding that that river was a navigable stream, said, with reference to the riparian owner's rights to build and maintain a dam:

" So far as the State was concerned, the owner of the bank was at liberty to construct and maintain the dam so long as it did not constitute an interference with the navigable rights of the public in the stream, and the state had no authority to authorize the construction of a dam across the river without providing for compensation to all parties who might be damaged thereby. It is the well settled law of this country that the legislature cannot authorize the flooding of lands without compensation to the owner, and the right to flood land by extending a dam across such streams may be acquired by adverse possession for the statutory period. A riparian owner ha^ the right, without license, to construct a dam which does not obstruct or interfere with the navigation of the stream. This is a right which is appurtenant to the ownership of the bank.'*

Simons v. Munch, 107 Minn. 370, 372.

Again, in 1904, in a case upon the Red Lake River at Crookston, Sprague, a log driver, was using the stream for navigation purposes, for driving his logs. He was holding his logs by a boom just above the dam of the Crookston Water Works, Power & Light Company, and, on the ^theory that, as navigator, he had paramount rights, and that the dam was an illegal obstruction to such navigation for logs, he let his logs down in a bunch, so that they did not go through the sluices provided for them, but went over the crest of the dam and smashed the dam. The Company sued him for damages. He claimed as a principal defense that the dam had not been constructed by any license from the State or the United States government, and that it was an illegal structure, as the Red Lake River was a navigable stream. But the Supreme Court held that as the Crookston Company was a riparian owner, it had the right, without any license, to construct and maintain the dam and that Sprague was liable for his negligence in not using the sluices provided in the dam for logs. The coiut said:

** Subject to the control of Congress in proper cases and independently of statute, the right of riparian owners to construct, maintain and operate dams upon rivers and streams in this State, is firmly established by the decisions of this court.''

In the last above three decisions we have the rule of property rights, which we have stated belong to the riparian owner, brought down to date and affirmed as the law of property rights in this State. The riparian owner has a right to build and to maintain his water power dam, without any franchise or license from the State; because his right so to do is " appurtenant to the ownership of the bank ". He has this absolute right with the only limitation that his structure shall not interfere with navigation. That right belongs to him entirely by reason of the fact of his riparian ownership. He is not obligated to get a license from the State even though the obligation to obtain a license is imposed by statute. More than that, as shown by the case next to last above, the State itself has not stfch an interest in the bed or waters of a stream that it can build a dam, or authorize the construction of a power dam in the river adjacent to the land of a riparian owner, or by any such structure, flood or injure the land of a riparian owner, ** without providing for compensation to all parties who might be injured thereby."

These rules defining the rights of riparian owners in Minnesota have been recognized and affirmed by the United States Supreme Court, for the reason, as shown above, that the rule of the property right of the riparian owner is determined by the decisions of the State Supreme Court.

Water Power Co, v. Water Board, 168 U. S. 360, (quoted from at length above).

Perhaps the most thoroughly considered case in regard to the Minnesota law is found in a recent decision by Judge Morris of the United States District Court, and affirmed by the Circuit Court of Appeals in an opinion where the reasoning and conclusions of Judge Morris were approved. In that case an island had formed in the bed of the Mississippi River, at Minneapolis^ opposite the riparian land of the plaintiff Hobart. The city> through Hall, claimed the island by grant from the State, on the ground that the State held the title to the bed and therefore acquired a proprietary interest in the islands formed in the bed* This brought up the entire question of the relations between the State and the riparian owner, and Judge Morris reviews the decisions and the law, which he summarizes as follows:

'* That where there is no reservation, express or from the circumstances necessarily implied, in a grant of lands bounded by a stream navigable in fact, like the Mississippi River, the grantee takes the absolute title in fee to high water mark, or at furthest to low water mark; that the State has title to the soil or land under the water, between the edge of the stream and the middle thread thereof, in its sovereign capacity, in trust for the public, for the purpose of preserving, protecting, and improving the public right of navigation ; that such right or title of the State is paramount for that purpose, but it is not proprietary, or one under which it can alienate or convey any portion of said soil or land under water, or any island formed thereon, to a stranger but is a limited title or ownership, — ^limited to that purpose and extending no further; — that the riparian owner has also a right or title to such soil or land under water, between the edge of the stream and the middle thread thereof, which, though subject and subordinate to this title of the State, is proprietary, and exclusive as to all others than the State^ or the general government, and even as to the State or general government exclusive, except as they may act by their properly constituted authorities in protecting, preserving, or improving said public right, and which he can convey to another in whole or in part; that the limit to this private right is imposed by the public right, and by that only, and the private right exists up to the point beyond which it would be inconsistent with the public right, and with that only and that such public right can only be exercised by the state, or^ where the stream can be used for purposes of interstate commerce, by the general government, through its properly and constituted authorities; that under this right of title, the riparian owner, or his grantee, has the exclusive right to reclaim, occupy and use, for any purpose not inconsistent with the public right, such soil or land under water, or any part thereof, out to the middle thread of the stream, or certainly to the main navigable channel thereof, subject only to such paramount right of the State, or of the general government; that under this right or title such riparian owner, or his grantee, has the exclusive right, subject only to such paramount right of the State or general government, to occupy and use, for any purpose not inconsistent with such public right, any island, or part thereof, between his shore line and the middle thread of the stream, whether such island exists at the time of the survey and is omitted therefrom in good faith and without palpable mistake, or is afterwards formed by the gradual action of the waters, and as against all others than the State or the general government, acting under the paramount authority above referred to, he has the exclusive right to the possession thereof."