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B^^HCROFT UBRAW 
 
 The Control of Use of 
 Stream Waters 
 
 IN THE 
 
 UNITED STATES 
 
 A Dissertation 
 
 BY 
 
 RUSSELL L. DUNN 
 
 SAN FRANCISCO, CAL.. FEB. 22, 1910 
 
FROh/ R L DUNN 
 
 ?I2 METROP, L»S BANK BLD'G 
 SAN FRANCISCO. CAL, 
 
 The Control of Use of 
 Stream Waters 
 
 IN THE 
 
 UNITED STATES 
 
 A Dissertation 
 
 BY 
 
 RUSSELL L. DUNN 
 
 SAN FRANCISCO, CAL., FEB. 22, 1910 
 


 The Control of Use of Stream Waters. 
 
 Federeil Policy of Water Appropriation and Use. 
 
 President Taft, in his recent message to Congress relating to the 
 "Conservation of Natural Resources," has for the first time declared 
 a Federal administration policy with reference to the appropriation and 
 use of stream waters concretely definite enough to be intelligently 
 discussed. He says in that message : 
 
 "With respect to the public land which lies along the streams offering oppor- 
 tunity to convert water power into transmissible electricity, another important 
 phase of the public-land question is presented. There are valuable waterpower 
 sites* through all the public land States. The opinion is held that the transfer 
 of sovereignty from the Federal Government to the territorial governments as 
 they became States included the water power in the rivers, except so far as that 
 owned by riparian proprietors. I do not think it necessary to go into a discus- 
 sion of this somewhat mooted question of law. It seems to me sufficient to say 
 that the man who owns and controls the land along the stream from which the 
 power is to be converted and transmitted owns land which is indispensable to 
 the conversion and use of that power. I cannot conceive how the power in 
 streams flowing through the public lands can be made available at all except 
 by using the land itself as the site for the construction of the plant by which 
 the power is generated and converted and securing a right of way thereover for 
 transmission lines. Under these conditions, if the Government owns the adjacent 
 land— indeed, if the Government is the riparian owner — it may control the use of 
 the waterpower by imposing proper conditions on the disposition of the land 
 necessary in the creation and utilization of the water power." 
 
 ♦President Taft seems to have in mind "mill seats" as they are known in the 
 States east of the Mississippi river. A dam across the stream raises the level of 
 the water and makes behind it a mill-pond, possibly flooding land of the stream 
 banks. Water is taken from such a mill-pond by a water way called a mill-race 
 imd conducted to a waterwheel, overshot, undershot, breast wheel or low head 
 turbine, as the case may be, and, passing the wheel goes back into its original 
 channel. 
 
 There is, precisely speaking, no such entity recognized in the practice of the 
 West from which the term comes as a "water power site." There is a dam 
 across the stream to turn the water known as a "dam site." There is a ditch, 
 flume, or canal, or all combined, with pipe lines, constituting a line of water 
 conduit from the diversion dam, which line may be as much as fifty, in some 
 instances a hundred miles, long. The land on which this line of works is emplaced 
 is described as a "ditch right of way." Then there is the power house, in which are 
 situated the water wheels and electric power generators, and to which the water is 
 conducted under pressure, sometimes with a head of more than 2000 feet. Its situs 
 is the "power house site." The water is wasted from it into some natural water 
 channel, which may be entirely outside of the original stream watershed from which 
 the water was taken. The locations of the dam, ditches and power house are deter- 
 mined more by commercial considerations than by natural conditions. Sites are 
 made rather than naturally existent. In the sense in which the President appears 
 lo use the word no water-power sites are "valuable" intrinsically. 
 
Following this declaratory statement the President proceeds to 
 make some suggestions as to the nature of the legislation required 
 of Congress to establish a Federal policy which will control the use 
 of water power which the President thinks the Government may 
 control. These suggestions are not material to the discussion of the 
 right of the Government (the Federal Government) to control the 
 use of water power. If the right of such Government control does 
 not exist there is nothing to legislate for. 
 
 It may be presumed that President Taft in making the declara- 
 tions quoted above had in mind the last annual report of his Secretary 
 of the Interior, Mr. Ballinger. In this report Secretary Ballinger says : 
 
 "If the Federal Government desires to exercise control or supervision over 
 water power development on the public domain, it can only do so by limitations 
 imposed upon the disposal of power and reservoir sites upon the public lands, the 
 waters of the streams being subject to State jurisdiction in their appropriation and 
 beneficial use." 
 
 Contradictory Propositions of Federal Policy Declared. 
 
 In these two quotations the President and his Secretary of the 
 Interior are maintaining affirmatively two propositions of fact which 
 oppose and negative one the other. That is to say if either one be 
 affirmed, then by reason of that affirmation the other must be 
 negatived. 
 
 One of the propositions is that "the waters of the streams" 
 (which flow over or by public land of the United States) are "subject 
 to State jurisdiction (State sovereignty) in their appropriation and 
 beneficial use." 
 
 The other proposition is that the Federal Government may 
 control the use of the water power (or any other use of the water) 
 of streams flowing on or by (or adjacent to) public land of the 
 United States by virtue of the fact that the land is public land of 
 the United States, which is the same thing as saying that the waters 
 of the streams which flow over, by, or adjacent to, public land of the 
 United States are subject to Federal Government jurisdiction (Federal 
 sovereignty) in their appropriation and beneficial use. 
 
 There can be only one sovereign having jurisdiction over the 
 appropriation and beneficial use of the water of streams flowing over, 
 by, or adjacent to, public land of the United States. This is too 
 elementary to require elucidation. 
 
 The proposition that the Federal Government does not directly 
 assume jurisdiction over the appropriation and beneficial use of the 
 
stream waters, but is to take that jurisdiction indirectly by imposing 
 conditions or limitations (contractual covenants) on the disposal of 
 public land necessary (perhaps indispensable) to the development and 
 use of water power from the streams, is a proposition, either, that one, 
 (the Federal Government), may do unto another, (a sovereign State of 
 the United States), indirectly, that which it could not lawfully do 
 directly, or is a proposition that the Federal Government is the 
 sovereign of the public land. 
 
 As to the latter, it is well adjudicated law that the United States 
 holds the public land not as the sovereign, but as proprietor — as 
 proprietor with the same obligations as any other proprietor, which 
 means subject to the jurisdiction of the State and its laws regulating 
 the terms and conditions of private land proprietorship in the State, 
 except that the State cannot make laws which would nullify as to 
 the public land express covenants of the act of admission of the State. 
 Thus, unless the Federal Government has reserved the power by the 
 terms of express covenants of the Act of Admission of the State, it is 
 subject in imposing conditions or limitations on the disposition of 
 public land which would regulate or control the appropriation and 
 use of stream waters, to the same State law to which the private 
 proprietor is subject in imposing conditions on the disposition of his 
 privately owned land through which he would regulate and control 
 the appropriation and use of stream waters. 
 
 If this were the contention of the President and Secretary Bal- 
 linger there would be no contention with it. But, obviously it is not 
 their contention, because the frankly avowed reason for the control by 
 the Federal Government is the claim of some persons having political 
 voice and influence with the Federal Government that the municipal 
 laws of the several sovereign States imposing those conditions on the 
 private proprietorship of land which control the appropriation and use 
 of stream waters are improvidently conceived and administered. 
 
 While admittedly irrelevant to the argument, the fact that these 
 voiceful, influential persons must be foreigners, because of their 
 obvious lack of the American sense of humor, is very interesting as 
 suggesting a possible cause for the lately developed trend of our 
 Federal political institutions and means toward foreign standards. 
 These humor-sense-lacking persons do not seem to have observed 
 that in each of the sovereign States of this Federal Government it is 
 the people of the State who are sovereign, and that the sovereign 
 people have an unquestionable right to conceive and administer to 
 
6 
 
 themselves improvident municipal law if that be their passing idea of 
 inalienable right to the pursuit of happiness or anything else. 
 
 The proposition that the Federal Government may do unto a 
 State indirectly that which it could not lawfully do directly may be 
 disregarded. Neither the President nor Secretary Ballinger would 
 conceive of such a proposition. 
 
 Contradictory Propositions Not Recognized by President and 
 Secretary. 
 
 That the President and Secretary Ballinger could consciously 
 affirm two propositions which directly, and indeed obviously, oppose 
 and negative each other is unthinkable. They have just as obviously 
 not recognized the two opposing propositions as such. The reason for 
 this is that as they appear to have understood the premises from 
 which they started, their conclusions follow logically and are under- 
 standable as entirely consistent with each other, but of course some- 
 thing quite different in meaning from the meaning given to them 
 above. The cause of any difference in meaning given to the con- 
 clusions thus has its origin in a difference of understanding of the 
 definition or meaning of the premises. 
 
 President Taft says in his message : 
 
 "The opinion is held that the transfer of sovereignty from the Federal Gov- 
 ernment to the Territorial governments as they became States included the water 
 power in the rivers, except so far as that owned by riparian proprietors." 
 
 "Under these conditions, if the Government (Federal) owns the adjacent 
 land — indeed, if the Government is the riparian owner — it may control the 
 use of the water power. * * * 
 
 "In the disposition of the domain (public land) already granted, many water- 
 power sites have come under absolute ownership, and * * * 
 
 In 1907 President Taft, then Secretary of War to President 
 Roosevelt, rendered an opinion on a bill which had been introduced 
 in Congress to provide for and regulate the use of the navigable 
 streams of the United States for the development of water power. In 
 this opinion he says : 
 
 "If the State has any control over the water power, which it may exercise in 
 conflict with the claimed rights of the riparian owner, * * * " 
 
 "But with respect to the water power on a navigable stream * * * It is 
 controlled by the riparian ownership * * * " 
 
 All of these references by the President to "riparian proprietor- 
 ship" suggest that he has in mind an idea that a riparian right of land 
 proprietorship is a sort of natural right proceeding from and attached 
 to the riparian land itself. They suggest-that in some way the riparian 
 
proprietor is possessed of a property right in the use of the flow of 
 the stream water which is inherent in the riparian land, or at least 
 created for it before, and thereby made independent of, the sovereignty 
 of the State and of the sovereignty of the Federal Government, and 
 existent now outside of obligations of law imposed by the sovereign. 
 
 If this idea of natural right of riparian proprietorship be 
 assumed — that it bears with it a control of the use of the flow of the 
 stream water which may be exercised by contract, as the President 
 seems to think it can be, free of obligations to municipal law which 
 are imposed on other species of property by the sovereign State — 
 then there is no contradiction of two propositions affirming severally 
 State sovereignty and Federal sovereignty, because the Federal Gov- 
 ernment would be controlling the use of the water flow of the streams 
 as a riparian land proprietor and not by assertion of sovereign right. 
 Of course if one riparian proprietor has natural power to control the 
 use of the flow of the stream waters by virtue of that proprietorship, 
 so has any other riparian proprietor, a condition which the President 
 recognizes and deplores. 
 
 Appropriation of the use of the flow of stream waters seems to 
 be understood by President Taft and Secretary Ballinger as an act 
 which begins and ends with a compliance by the intending appropriator 
 with the legal forms of initiating appropriation of the use of the flow 
 of stream waters prescribed by State law. Thus, the recognition of 
 the State jurisdiction with this understanding of the meaning of 
 appropriation is accomplished by the Federal Government by requiring 
 that an intending appropriator of the use of the stream waters which 
 flow over, by, or adjacent to, public land, shall have initiated his 
 appropriation by complying with the statutory forms prescribed by 
 the State law before the Federal Government will recognize him as 
 qualified to contract with it for the use of the stream waters for 
 power development or other purpose, direct or ultimate. The Presi- 
 dent and Secretary Ballinger cannot be understanding that the State 
 jurisdiction extends beyond the prescription of the form of declara- 
 tion of an intention to appropriate the use of the flow of the stream 
 waters, because they say that the Federal Government has the power 
 to exercise control over the actual physical act of appropriation of the 
 waters (their diversion from natural channels of flow), and use of the 
 water, or of converted products of its use such as water power and 
 electric power, by imposing (contractual) conditions on the disposition 
 
of the public land necessary to make physical appropriation and actual 
 utilization of the water and its converted products. 
 
 If this meaning to stream water appropriation be assumed — 
 that it consists solely of an act of declaration of intention to make the 
 appropriation accomplished in the manner prescribed by the State 
 jurisdiction — then there is no contradiction of two propositions afirm- 
 ing severally State sovereignty and Federal sovereignty, because there 
 would be no State jurisdiction over the physical appropriation and 
 subsequent use of the stream waters. 
 
 Conclusions of President and Secretary Consistent With Their Under- 
 standing of Premises. 
 
 The conclusions of President Taft and Secretary Ballinger, given 
 the meaning which they evidently intended they should express — 
 that the Federal Government could control the use of stream waters 
 through means of private contract by imposing conditions on the dispo- 
 sition of public land nepessary (more or less) for the appropriation 
 and use of the water flow, without thereby conflicting with a State 
 jurisdiction over the appropriation and use of the stream waters, or 
 establishing or asserting a Federal sovereign jurisdiction over the 
 pubHc land — are consistent with premises which assume meanings to 
 ''riparian proprietorship" and "appropriation of stream waters" which 
 have been explained above as being, probably, the meanings in which 
 these terms were understood by the President and Secretary Ballinger. 
 It is difficult, indeed, to assume otherwise than that they understood 
 these terms in substance as they have been explained above. 
 
 But— "riparian proprietorship" and "appropriation of stream 
 waters" have neither of them the meanings which the President and 
 Secretary Ballinger seem to have assumed to be correct. Giving to 
 these terms their correct meanings, the conclusions which will follow 
 their us^ in the line of reasoning made by President Taft and Secre- 
 tary Ballinger are the contradictory propositions of two sovereign 
 powers, the State and the Federal Government, having jurisdiction 
 over the same property. 
 
 Riparian Law. 
 
 The right of riparian proprietorship, known commonly as riparian 
 right, is defined as the right of a land proprietor whose land margins 
 a natural body of water (a stream, or lake in or through which there is 
 
9 
 
 a flow of water) to have pass his land margin the flow of the water 
 undiminished in quantity and unimpaired in quality from the condi- 
 tions which were existent in the beginning of his proprietorship. 
 *It is a rule of the English common law. To fully understand this 
 rule which has come down with the common law from that time 
 immemorial to which the memory of man does not run, it is of assist- 
 ance to recall that, at that remote period, the people of England had 
 no knowledge of precise methods of measurement as applied to the 
 quantity or quality of stream water flow, and made no uses of the 
 flow of stream waters which required such knowledge. They obtained 
 water for domestic use, the only use they seem to have made of 
 water, from natural springs and wells, or, where population was con- 
 gested in towns situated on the banks of streams or lakes, by dipping 
 it from these sources, a bucketful at a time. Such measurements 
 of water flow quantity and quality as the rule presupposed were 
 measurements which the unassisted senses of sight and taste could 
 make. The first judicial declaration of the rule was no doubt made in 
 a case where the riparian proprietor of land on one bank of a stream 
 undertook to divert some of its water over a waterwheel on his land 
 without obtaining the consent of the riparian proprietor of the other 
 bank of the stream. 
 
 This rule of riparian rights, along with the other rules of the 
 common law, was brought to the American colonies by their English 
 colonists. The climatic and topographical conditions of the land in 
 the American colonies differed very little from the conditions in 
 England, so that the rule served its purpose as well there as in the 
 mother country. As regards uses of water flow, the colonies added 
 nothing to what was already known in England. 
 
 *j Kent Com., Sec. 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 land, as it was wont to run, without diminution or alteration." 
 
 Gould on Waters, Sec. 204. "The rule of the common law is that every riparian 
 owner has a right to the continued natural flow of the stream, and that this right 
 is not a mere easement or appurtenance, but is inseparably annexed to the soil 
 itself." 
 
 "Riparian proprietors upon both navigable and innavigable streams are 
 entitled, in the absence of grant, license, or prescription limiting their rights, 
 to have the stream which washes their lands flow as it is wont by nature, without 
 material diminution or alteration." 
 
 The author is clearly contradicting a declaration of his first statement by a 
 declaration of his second statement. In the first he declares the ^'riparian right" 
 inseparably annexed to the soil, and in the second that it may be separated by 
 grant, license or prescription. A limitation implies a separation of part or whole. 
 The error is in the first declaration. 
 
10 
 
 When the colonies separated themselves from England and 
 organized themselves into self-governing sovereign States, they sev- 
 erally enacted as their municipal law the English common law except 
 as to rules- which were inconsistent with their republican political 
 institutions. The law of riparian rights thus became a part of the 
 municipal law of the several original States, and as other States 
 (having reference to States east of the Mississippi River) became 
 organized from contiguous territory by settlers from the original 
 thirteen, it became part of their municipal law. 
 
 Under this rule property rights vested and were adjudicated 
 without any conditions becoming created in States east of the 
 Mississippi River (until within the last few years) which suggested 
 that their solution required a precise definition of the essential nature 
 of riparian rights. It is quite easy to understand how, in the absence 
 of any question forcing an adjudication based on the essential nature 
 of riparian rights as against an adjudication based on direct applica- 
 tion of the rule as it reads and as precedent had read it, the essential 
 nature of the property right for which the rule was originally created 
 has become as overlooked as if it had no existence. It is quite easy 
 to understand how riparian rights in common acceptance and appar- 
 ently in acceptance by President Taft and Secretary Ballinger, have 
 become considered to be substantially natural rights vested in riparian 
 proprietorship free of obligations to sovereign law. 
 
 A curious consequence of overlooking the essential nature of 
 riparian rights is illustrated by a case recently adjudicated. A New 
 Jersey city situated on a river brought an action against the water 
 supply corporation supplying it with water asking the Court to enjoin 
 the company from taking the water which it supplied to the inhabi- 
 tants of the city from the headwaters of the river on which the city 
 was situated, the cause of action alleged being that the water company 
 by taking the water from the headwaters so diminished the natural 
 riparian flow of the stream by the city that a nuisance was created 
 through the inability of the reduced flow of the stream to carry away 
 the sev'-erage of the city which was discharged into it. The city was 
 granted the injunction, which is curious. 
 Riparian Right an Easement Created by Sovereign Grant. 
 
 A riparian right is an easement. It is in its essence a servitude 
 imposed by a sovereign on the owner of one tract of land within its 
 jurisdiction and granted to the proprietor of another tract of land 
 having a natural riparian relation to the first tract. That the servitude 
 
11 
 
 imposed on the owner of the first tract is the continuance unaltered of 
 its natural condition, the continuance unaltered of the natural flow 
 of water over its surface, does not alter the fact that it is an easement. 
 The fact that the grant is a grant of continuance of a natural state or 
 condition does not alter the fact that the riparian proprietor becomes 
 possessed of his riparian right, his easement on the land of another 
 owner, by virtue of the jurisdiction of the sovereign over both tracts. 
 That it is immemorial custom for sovereign grants of riparian land 
 to carry with them the grants of the riparian easements without the 
 latter being expressly declared in the instrument of grant does not 
 alter the fact that these easements are granted property rights addi- 
 tional to the land. 
 
 A State of the United States of America, a sovereign, owner of 
 riparian land as sovereign, cannot be an owner of riparian rights or be 
 a riparian proprietor. A State, a sovereign, is a creator of riparian 
 rights, creating a riparian right or easement and granting it con- 
 currently with a grant of riparian land, or creating a riparian right 
 or easement and granting it concurrently to a proprietor already 
 vested with the fee to the riparian land. 
 
 Riparian Easement Separable From Riparian Land. 
 
 The ownership of a riparian easement is separable from the 
 ownership of the riparian land. The owner of riparian land is a 
 riparian proprietor only when owning with it the riparian •asement 
 to his land. 
 
 For concrete illustration of this separable status of the riparian 
 easement, suppose the case of a riparian proprietor owning a mile 
 square of land, one side of which a mile long margins a stream. 
 Obviously this proprietor may convey from the land side of his tract 
 until he has reduced his land ownership to a strip of land of little more 
 width than a line along the stream margin, yet with this strip of river 
 edge land he retains the ownership of the original riparian easement 
 undiminished. Practically, he has separated what was riparian land 
 from the easement of the riparian right. He could accomplish the 
 same separation by conveying the riparian easement by itself without 
 any of the riparian land. There is nothing novel in the separation by % 
 riparian proprietor of his riparian land from his riparian right or ease- 
 ment. It has been repeatedly done in old England and young Ameri- 
 can States by riparian proprietors granting to other riparian pro- 
 prietors more or less of their riparian easements for the purpose of 
 
12 
 
 enabling those other riparian proprietors to divert the stream waters 
 from their riparian relation to accomplish uses from the flow which 
 would be impossible of accomplishment except with the water* 
 diverted. 
 
 It is this same separation of the riparian easement from the 
 riparian public land which President Taft and Secretary Ballinger 
 have in mind to be accomplished by the Federal Government. It is 
 the basis of the kind of control of water appropriation and water 
 power development and use which they propose for the Federal 
 Government. 
 
 Riparian Easements Implied Grants. 
 
 That grants of riparian easements in the several States have 
 never been express grants, that is to say, have never been made 
 directly by words written in instruments of the nature of patents or 
 their equivalent, but have always been grants to be implied from the 
 prior enactment of the English common law rule of riparian rights as 
 part of the municipal law of the State, explains how it has been over- 
 looked that the several States are respectively the creators of riparian 
 rights or riparian easements, and are the sovereign grantors of those 
 rights to all riparian land proprietors in their respective jurisdictions; 
 and explains how it has also been overlooked that the time of creation 
 of any particular riparian right and its grant to a riparian land 
 proprietor cannot be earlier than the time of enactment by the State 
 Legislature of the common law rule of riparian rights. 
 
 That riparian rights or easements now in the possession of 
 riparian proprietors under the jurisdiction of any of the original 
 thirteen States are identical riparian rights or easements which were 
 in the possession of riparian proprietors under the royal English 
 jurisdiction before the States were, does not vest those riparian 
 rights, so far as the State jurisdiction is concerned, as of a time before 
 the State was. With the admitted States no riparian right was created 
 and passed by grant to the proprietor of riparian land earlier than 
 the date, subsequent to the admission of the State, of enactment by 
 the Legislature of the riparian law, the only exception being of 
 grants of riparian easements to riparian land owners, if there were 
 any such, made by the former sovereigns of ceded territory which 
 passed to the jurisdiction of the State after confirmation and vesting 
 of the riparian grants by virtue of stipulations of the treaty of cession 
 to the United States. 
 
13 
 
 The Federal Government is sovereign of the public land so long 
 as it is under the direct governmental jurisdiction of the Federal Gov- 
 ernment through municipal laws enacted by Congress or by territorial 
 Legislatures. The grants of the public land the Federal Government 
 makes while it has sovereign governmental jurisdiction are sovereign 
 grants. But its sovereign grants of riparian land do not bear with 
 them grants of the riparian easements, do not make the grantees 
 riparian proprietors, unless the municipal laws enacted by Congress 
 or by the territorial Legislatures include the common law rule of the 
 riparian law. 
 
 The Federal Government is proprietor of the public land in a 
 State. Its proprietorship is subject to the obligations of the municipal 
 law of the State just as is any other proprietorship except as to 
 those matters reserved or obtained by grant by means of covenants of 
 the Act of Admission of the State. If the Federal Government cov- 
 enanted in the act of admission for the grant by the State of riparian 
 easements for the riparian public land which it was thereafter to hold 
 under the State jurisdiction as proprietor, the Federal Government 
 would thereby become as to its riparian public lands a riparian 
 proprietor, and its subsequent proprietary grants of riparian public 
 land would bear with them the riparian easements. If the State 
 enacts as a municipal law the riparian law, then the Federal Govern- 
 ment proprietor of the riparian public land, the same as any other 
 proprietor of riparian land, becomes .possessed of the riparian ease- 
 ments as of the time of the enactment,* and its subsequent, but not 
 its prior, proprietary grants of riparian public lands carry with them 
 the riparian easements. Once riparian easements have been created 
 and passed by the implied grant of the State to the riparian land 
 proprietors, they vest in the proprietors and the proprietors cannot be 
 divested of them by any subsequent legislative enactment of municipal 
 law by the State Legislature, as, for example, the repeal of the riparian 
 law. The Federal Government proprietor of the riparian public lands 
 has the same status in this respect as any other riparian land 
 proprietor. 
 
 * United States v. Rio Grande Irrigation Company, 174, U. S., 690. "As the 
 owner of the lands bordering on water courses within the States, and either con- 
 stituting a part of the original public domain or acquired for special purposes, the 
 Federal Government has all the rights of a riparian proprietor under State laws, 
 and may make all needful rules and regulations for the use of its property." 
 
14 
 
 United States a Riparian Proprietor. 
 
 Applying this correct understanding of the essential nature of 
 riparian proprietorship in interpreting the argument of President Taft 
 and Secretary Ballinger, instead of their conclusion that the Federal 
 Government has a sort of natural riparian proprietorship along with 
 its proprietorship of the riparian public land, or a riparian proprietor- 
 ship established prescriptively and vesting from its own sovereignty 
 prior to that of the State, either way bearing a control of the diversion 
 and utilization of the flow of the water of the riparian stream on other 
 proprietary land than that of the Federal Government, which control 
 can be exercised by contract free of obligations to State jurisdiction — 
 instead of their conclusion, it appears that the Federal Government 
 along with its proprietorship of the riparian public land has, or has 
 not, riparian rights, and is, or is not, a riparian proprietor, according 
 as the State in which the public land is situated, has or has not, 
 granted riparian rights to the proprietors of riparian lands; and that 
 in States where it has riparian rights the Federal Government holds 
 them as proprietor under the State jurisdiction precisely as any other 
 riparian proprietor, subject to the obligations of the municipal law 
 of the State, without any right of control over the riparian water 
 flow, or over its direct or indirect utilization, than the municipal laws 
 of the State permit to any other riparian proprietor in its jurisdiction. 
 In other words, the Federal Government proprietor of riparian public 
 land in a State is no bigger proprietor than any plain ordinary citizen 
 riparian proprietor when it is a question of control of the diversion 
 and use of riparian stream water flow, and the State Constitution and 
 State Legislature boss all the riparian proprietors. 
 
 Appropriation and Use of Stream Water Flow. 
 
 Appropriation of stream water flow and its use or its utilization 
 are terms very loosely construed and understood in the States east 
 of the Mississippi River where there has been no definition by statute 
 or adjudication, and actual appropriations have invariably been made 
 by means of the opportunity afiforded by riparian proprietorship. 
 Appropriation for the domestic consumption of cities, where it could 
 not be made directly from streams so considerable that the water flow 
 appropriated would not appreciably to the eye diminish them, has 
 been accomplished by acquiring all of the riparian proprietorships 
 down stream from the situs of the diversion. Neither water-using, 
 mining nor irrigation have existed, and power development from 
 
15 
 
 water flow has been accomplished through the riparian proprietorship 
 of the riparian lands which were the situs of the diversion of the 
 water, its power developing use, and the return of the water to the 
 stream bed. Control of stream flow appropriation and use has been 
 effected through adjudication of riparian rights. There are no direct 
 municipal laws of water appropriation and use because there has 
 never been a practical necessity for such laws. 
 
 Appropriation of Water Flow. Definition. Water Right. 
 
 Appropriation of stream water flow and use of the flow has a 
 definite, well established meaning in the Pacific Coast and Rocky- 
 Mountain States. An actual physical appropriation of a stream water 
 flow, accomplished by diversion of the water from its natural situs, 
 and a use or uses of the water flow, including uses which consume or 
 waste the water flow, together constitute a legal indivisible private 
 property entity termed a "water right." Use of the appropriated water 
 is of the essence of a water right. Diversion of a water flow from its 
 natural stream bed situs does not by itself constitute a water right. 
 There is no private property or private right in physical diversion of 
 the water flow from its natural situs unless the water flow is used. 
 There must be use of the water flow to create the property right. 
 Appropriation of water flow in the Pacific Coast and Rocky Mountain 
 States implies use of the water flow. Without the use there is no 
 appropriation in law. 
 
 State Sovereign Owner of Right of Water Appropriation and Use. 
 
 The State is the sovereign owner of the right to appropriate and 
 use all of the stream waters which are within the jurisdiction of the 
 State. The State by enactment of appropriate municipal law permits 
 the creation of water rights by private persons, that is to say the State 
 permits private persons to use the State's right to appropriate and use 
 the flow of stream waters. 
 
 Water Right Claims. 
 
 Water right claims, as they are known in the Pacific Coast and 
 Rocky Mountain States, are not water rights, although they are a 
 species of property right commercially traded and judicially recog- 
 nized. Water right claims are declarations of intention made in a 
 written form prescribed by statute to give public notice of intention to 
 create water rights identical with descriptions stated in the writing. 
 Commonly referred to as water rights, although they are not, water 
 
10 
 
 right claims have become commonly regarded as being the same thing 
 as water rights. It is this common misunderstanding, confusing with 
 the legal entity of a completed water right, a mere declaration of inten- 
 tion to create the water right which may never be anything more than 
 an intention — a sort of legal chrysalis stage for the water right through 
 which it commonly passes before having actual existence — hardly a 
 stage or condition precedent because the complete water right may 
 be created by prescriptive use of the water alone — which seems to 
 be the misunderstanding from which President Taft and Secretary 
 Ballinger are reasoning to mistaken conclusions. 
 
 By relation, the permit of the State to proprietary possession of 
 the water right, when fully created by use of the water, is given legal 
 existence as of the day of the declaration of the intention to make 
 the appropriation and use, — the water right claim then becomes part 
 of, or rather becomes merged in identity with, the water right. 
 
 That the water right claim, commonly assumed to be the water 
 right, is actually nothing but an uncertainly defined precedent shadow 
 of a possible water right, is very clearly recognized by the municipal 
 w^ater right law of the Pacific Coast and Rocky Mountain States. 
 Those municipal laws providing for declarations of intention to create 
 water rights require the intending appropriator to define in his written 
 declaration: (i) the point on the particular stream from which it is 
 the intention to appropriate the flow of the water; (2) the quantity of 
 water flow proposed to be appropriated ; (3) the kind of, and dimen- 
 sions of, waterworks proposed to effect the diversion ; and, (4) the 
 use or uses proposed to be made of the water, and the place or places 
 of proposed use. Th6 same municipal laws provide that the intending 
 appropriator may, with or without public notice, change every one of 
 these declarations of intention except the particular stream from 
 which the diversion is intended to be made, provided only, that no 
 v/ater right of a subsequent appropriator be impaired by the change 
 of an intention declared by the initial declaratory notice. The water 
 right created may be, and usually is, an altogether different water 
 right from the water right described in the declaration of intention to 
 create a water right. 
 
 Proprietary Use of Water Flow a "Franchise" or "Permit" From State. 
 
 The State does not grant anything to the water appropriator (use 
 being of the essence of the appropriation), but merely permits the 
 proprietary use of some of its sovereign or Governmental property, 
 
17 
 
 the right of use of the flow of stream waters. The extent of the permit 
 of the State is measured by the use of the water. The essence of the 
 permit being "use of the water," the permit ceases concurrently with 
 the abandonment of the use. The ceasing of the permit of the State 
 does not constitute a reversion of the water right to the State, because 
 there is no State grant of the water right or property on which a 
 reversion can operate. 
 
 The permit of the State to make proprietary use of some of its 
 Governmental property is a franchise which terminates on a condi- 
 tion concurrent. The water right or appropriation and use of stream 
 water flow, which is the creation of the proprietor, consists of water- 
 works construction which divert the flow of the water from its natural 
 situs and complete the use (irrespective of whether the use is domestic, 
 irrigation or industrial consuming and wasting the water, or the 
 development of power which does not consume or impair the water), 
 and a franchise, the permit of the State to divert and use the stream 
 flow. The termination of the franchise through abandonment of the 
 use directly brings about the dissolution of the water right. The 
 State receives back its Governmental property and the proprietor 
 retains the constructions, his private property. 
 
 Water Right Entity Parallels Street Railway Entity. 
 
 The entity of the water right is paralleled by the entity of a 
 street railway, which consists of constructed works for a proprietary 
 public service business of transporting persons within the municipal 
 jurisdiction of a city, together with the municipal permit or franchise 
 to make proprietary use of certain municipal property, the streets. 
 The municipal franchise or permit to make proprietary use of the 
 streets is not by itself the street railway. The track, street cars and 
 motive power — the physical construction is not by itself the street 
 railway. Both elements are indispensable. 
 
 The entity of the water right (the diversion and use of the water 
 of the stream flow) consists of the constructed waterworks, together 
 with the State franchise or permit, to make proprietary use of the 
 State's property, the right to appropriate and use the stream water 
 flow. The State franchise or permit to make proprietary use of the 
 stream water flow is not by itself the water right or the water appro- 
 priation and use. The waterworks construction is not by itself the 
 water right or the water appropriation and use. Both elements are 
 indispensable. 
 
18 
 
 Rights of Emplacement of Waterworks. 
 
 On the principle of law that that is certain which is capable 
 of being made certain, the intending appropriator of stream water 
 flow has the same legal right to make the emplacement of the water- 
 works construction on its necessary situs, using the necessary land 
 therefor, before he has received th^ franchise or permit of the State 
 to make proprietary use of the stream water flow, as the intending 
 operator of a street railway has to make the emplacement of the street 
 railway works on the necessary land situs after he has received the 
 franchise or permit of the municipality to make proprietary use of the 
 municipal land in the streets. 
 
 Obviously, one proprietor of land necessary for the emplacement 
 of waterworks construction under the State's permit has no more 
 legal restraining power against that emplacement than has any other 
 proprietor of land. The municipal law of the State provides the same 
 legal restraining power for all land proprietors. The Federal Govern- 
 ment proprietor of the public land in a State has no more legal restrain- 
 ing power against the emplacement of waterworks under the permit 
 of the State on the public land than possessed by other proprietors 
 against the emplacement of waterworks under the permit of the State 
 on their lands. If the municipal law of the State provides, within the 
 limits of the constitutional power of the State, for the invasion of 
 proprietary land and the imposing of servitudes of waterworks 
 emplacement and flow of appropriated water on it, the proprietary 
 public land is not exempt from the operation of the municipal law. 
 The legal procedure of invasion of the proprietary public land and of 
 the imposing of servitude of waterworks emplacement and flow of 
 appropriated water on it may be a different procedure from the legal 
 procedure of invasion of other proprietary land and of the imposing 
 of servitudes of waterworks emplacement and flow of appropriated 
 water on it, but independent of the difference of legal procedure the 
 State jurisdiction effects the invasion. 
 
 President Taft and Secretary Ballinger would seem to have over- 
 looked the State jurisdiction over proprietary land through which it 
 may impose servitude of waterworks emplacement and flow of appro- 
 priated water on it, just as they seem to have overlooked the same 
 jxirisdiction of the State, which, creating riparian rights, imposed them 
 as servitudes of water flow in its natural situs on other proprietary 
 land. Holding that the Federal Government may control water appro- 
 priation and use by imposing conditions upon the disposition of power 
 
19 
 
 and reservoir sites upon the public lands, and contemplating the 
 exercise of that control by means of the covenants of leases to be 
 made by the Federal Government of servitudes of waterworks and 
 power developing and conducting works emplacement and flow of 
 appropriated water and manufactured products, reserving in perpetuity 
 the fee, they must be assuming either that the States have no con- 
 stitutional power to enact municipal law which will provide for the 
 invasion of proprietary land and the imposing on it of servitude for 
 the emplacement of waterworks construction and flow of appropriated 
 water free of any obligations other than the statutary covenants 
 imposed by the municipal law, or they must be assuming that the 
 jurisdiction of the State over the appropriation and use of stream 
 water flow is jurisdiction only over the initiatory act of declaring 
 intention to appropriate and use the water, and that the Federal Gov- 
 ernment has direct control over the actual diversion and use. The 
 first assumption can only be supported on the theory that the Federal 
 Government is sovereign owner of the public land, a theory which, 
 obviously, the President and Secretary Ballinger do not hold. Under- 
 standing appropriation and use of stream water flow as a legal entity 
 of which use is the essence, the alternative assumption becomes impos- 
 sible unless the Federal Government has sovereign jurisdiction over 
 the appropriation and use of stream waters, whereas the President 
 and Secretary Ballinger admit the State jurisdiction as sovereign as 
 they appear to understand it. 
 
 No Conflict Between Application of Riprarian Law and Law of Water 
 Appropriation and Use. 
 
 There is a common impression that some way or other the law 
 of riparian rights and the law of water appropriation and use conflict 
 in application. This is clearly not the fact. The two laws deal with 
 altogether different subject matters. The Governmental property 
 right of the State to appropriate and use the flow of the stream waters 
 in its jurisdiction vested in the State with the beginning of its 
 sovereignty. The enactment of municipal laws permitting proprietary 
 use of the State Governmental property right to appropriate and use 
 the flow of the stream watery followed as necessity for them appeared,- 
 early in some States, recent in others, suflferance by the State of the 
 appropriation and use sometimes taking the place of municipal statutes 
 until municipal statutes recognized the sufferance as having estab- 
 lished the permit of the State by prescription. 
 
 The State's Governmental right of appropriation and use of the 
 
20 
 
 flow of stream waters, use being of its essence, cannot be conveyed by 
 the State. The only proprietary estate which can vest is the permit or 
 franchise of the State to make proprietary use of the State Govern- 
 mental property right. The State's property right to appropriate and 
 use the flow of the stream waters cannot lapse, but is continuous. 
 
 On the other hand, the State is never the owner of riparian 
 rights. Riparian rights have existence only as proprietary estates 
 created by, and granted by the State. Created and granted by the 
 State, the State can neither recall nor diminish its grant. The only 
 effect of the Legislature repealing the riparian law is that with its 
 subsequent grants of riparian land the State does not grant any 
 riparian easement. 
 
 The State Legislature neglecting to enact municipal laws per- 
 mitting proprietary use of the State's Governmental right to appro- 
 priate and use the flow of the stream waters, and neglecting to enact 
 for the State itself to use its own property, the riparian proprietors, 
 having the opportunity by reason of that neglect, may and do become 
 appropriators of the flow of the stream waters by sufferance of the 
 State, and become recognized by the State as possessed of the State's 
 permit to make proprietary use of its Governmental property by 
 prescription. 
 
 Riparian proprietors, when they appropriate and use the flow 
 of stream waters, make a proprietary use of inalienable State Govern- 
 mental property — of property which the State became possessed of 
 and holds as sovereign. They do not make use of their own property 
 because they have no property estate in the flow of the stream waters.* 
 Their proprietary riparian rights are nothing but servitudes imposed 
 on land naturally under the stream flow to have that land remain 
 naturally under the flow of the stream w^aters. The easement which 
 is property of the riparian proprietor is this servitude on land naturally 
 
 * S Kent Com., Sec 439. "No [riparian] proprietor has a right to use the 
 water, * * * unless he has a prior right to divert it, or a title to some ex- 
 clusive enjoyment. He has no property in the water itself, but a simple usufruct 
 while it passes along." 
 
 Gould on Waters, Sec. , 204. "The [riparian] proprietors have no property 
 in the flowing .water, which is indivisible and not the subject of riparian owner- 
 ship." 
 
 Gould on Waters, 148; Lyon v. Fishmongers^ Co., L. R. 10, Ch. 679. "Owners 
 merely of the bed of the stream were not riparian proprietors." 
 
 The ownership of the land under the water of a stream does not figure at 
 all in the riparian right except that it is the land having the riparian servitude 
 imposed on it. The land under the water is capable of separate ownership 
 from the land of the banks. Its proprietorship cannot bear with it a right of diver- 
 sion as against the riparian proprietorships of land on both banks. 
 
21 
 
 under water. It is not a proprietary right of use of the water which 
 flows naturally over this land. 
 
 A riparian proprietor owning the riparian easements, but not 
 owning any of the riparian land, cannot, because he is proprietor of 
 the riparian easement, invade the riparian land of which he is not 
 proprietor to obtain situs for waterworks through which appropria- 
 tion and use of the flow of the water would be accomplished. An 
 owner of riparian land who is not proprietor of the riparian easement, 
 cannot, because he possesses a situs for waterworks, invade the 
 proprietorship of the riparian easement. It is absurd to assume that a 
 legal divorcement of proprietorship of land above water and of a servi- 
 tude on land beneath water rough-locks the sovereignty of the State 
 so that no use may be made of a third property in which there is no 
 proprietary estate whatsoever, but which the State owns as sovereign. 
 Certainly the State may say what shall be the conditions of its 
 franchise permit of proprietary use of its own property and may say 
 what persons may have its franchise or permit, but no proprietor, not 
 even the Federal Government proprietor of the public land, may do 
 what the State only may do. 
 
 Qualification to Obtain State's "Franchise" or "Permit" to Use Water. 
 
 Some of the States east of the Mississippi River limit the issue 
 of the franchise or permit of the State to appropriate and use the 
 flow of stream waters to persons who are proprietors of both riparian 
 land and riparian easements. They require a property qualification of 
 a particular quantity just as do some of the same States* for the issue 
 of the franchise to vote at certain elections. The Pacific Coast and 
 Rocky Mountain States do not require any proprietorship qualification 
 for persons as a condition precedent to the issue to them of the State's 
 franchise or permit to appropriate and use the flow of the stream 
 waters, and they evade the rough-lock which would result between an 
 immovable body of proprietorships of land and of riparian easements, 
 and an irresistible force of sovereignty over the use of the stream 
 water flow, by providing through the enactment of appropriate 
 muncipal law, means for the lawful invasion, by the owner of the 
 State's franchise or permit to use the water, of the proprietorship of 
 the riparian easements and of the proprietorship of land.* 
 
 *St. Helena Water Co. v. Forbes, 62 Cal, 182, "Under the laws of this 
 State, the right of a private individual to enjoy the flow of water in its natural 
 channel, upon or along his land, can be condemned for public use." 
 
22 
 
 This is what the so-called ''conflict" between the riparian law 
 and the law of water appropriation and use really is — a passing differ- 
 ence between the old East and the young West of the mode of inves- 
 ture of the accomplishment of the same purpose — the use of the flow 
 of the waters of the streams. But for the regrettable loss long since 
 from the sum of human knowledge of Herr Professor Teufelsdroesch's 
 admirable treatise on the "Philosophy of Clothes," this recent dis- 
 covery of a supposed irreconcilable conflict as nothing but a little 
 difference in the family of States of mode of law dress of an infant 
 industry might have been anticipated. 
 
 California. — Water Appropriation and Use. 
 
 The State of California contains a very large body of the public 
 land. The flow of water in its streams is available for a great variety 
 and relatively an enormous quantity of service. Of water power alone 
 the quantity which can be made commercially available is not less 
 than 3,500,000 horsepower. The commercial necessity for the entire 
 variety of service and ultimately for its utmost possible quantity is a 
 fact. It is very easy to be seen that not only will the utmost possible 
 power development service be required from the flow of the water, but 
 after that service has been taken the water itself will be consumed 
 or wasted economically in irrigation, manufacturing industry and the 
 domestic supply of the population of California. 
 
 While t]ie water supply for the arts, which consume or waste 
 water economically, can be had for the most part, or at least to the 
 extent now consumed and wasted, from the flow of the streams without 
 the invasion in any way of the Federal Government proprietorship of 
 the public land, practically no water power can be had from the flow 
 of the streams except there be more or less invasion of that proprietor- 
 ship. This applies to nearly all of the water power already made 
 available, about 350,000 horsepower, as well as to water power yet 
 to be made available, over 3,000,000 horsepower. 
 
 The territory which is now the State of California was acquired 
 by the United States from the sovereignty of Mexico by the Treaty 
 of Guadalupe Hidalgo in 1848. By the treaty the proprietary estates 
 of the people in the ceded territory at that time were confirmed by 
 
23 
 
 the United States.* These proprietary estates consisted of direct and 
 nnpHed grants from the Mexican sovereignty and permits or franchises 
 to make proprietary use of Governmental property under conditions 
 prescribed by the Mexican municipal laws. 
 
 Mexico had no municipal law of riparian rights and no such 
 proprietorship as riparian proprietorship existed.** No proprietary 
 estate originating from the Mexican sovereignty and confirmed by 
 the United States included a riparian easement. There was a Mexican 
 municipal law of water appropriation and use, the prmciple of it 
 being identical with the principle of the water appropriation laws of 
 the sovereign States, including California, since created out of the 
 ceded territory. Mexico, the State or sovereign, was governmental 
 owner of the right of appropriation and use of the flow of the stream 
 waters. Proprietary use was made by virtue of the State permit or 
 franchise under conditions prescribed by the municipal law. The 
 conditions were generally identical with the conditions since prescribed 
 in the municipal laws of the States created from the ceded territory, 
 indeed the States copied the Mexican law and adopted it. The United 
 States ratifying the Treaty of Guadalupe Hidalgo, confirmed and con- 
 tinued the franchises and permits of the Mexican sovereignty to 
 make proprietary use of the flow of stream waters as at that time 
 being made, and many of those old appropriations of the flow of stream 
 waters are still in existence in California and in the Territories of 
 Arizona and New Mexico. 
 
 * Treatv of Guadalupe Hidalgo. Article VIII "Mexicans P^^, ^st^,^lishe^ in 
 territories previously belonging to Mexico, and which remain f^^ /he future 
 with n the HmL of the United States, as defined by the present rea^', shall be 
 7reeTo cont n e'^ they now reside, or to remove at any time to the Mexican 
 
 repubHc retaining the property which they possess in the said territories or 
 disposing thereof and removing the proceeds wherever they please without their 
 be ng ubjected, on this account, to any contribut on, tax, or charge whatever. * * * 
 ^In the said territories, property of every kind, now belonging to Mexicans no 
 established there, shall be inviolably respected. The present ^^wners the heirs o 
 these, and all Mexicans who may hereafter acquire said property by contract, shall 
 enfoy, with respect to it. guarantees equally ample as if the same belonged. to 
 citizens of the United States." 
 
 ** References to the rights of lower (down stream) land proprietors to 
 water appropriation from the streams, which appear in laws relating to water 
 appropriation, appear to have no reference to riparian land owners down stream, 
 but to any land owners who would naturally secure water lower down stream. 
 The typical stream valleys in Mexico are alternating sections of narrow steep 
 canyon and wide flats or benches— valleys formed where the stream flows on light 
 grades with hill rims wide apart. The idea of the law was to provide that one 
 of these valleys should not by taking all the water make the others of no value 
 to the settlers. 
 
24 
 
 Origin of Law of Water Appropriation and Use. 
 
 This municipal law of water appropriation and use which was 
 in effect under the Mexican sovereignty of the ceded territory, now 
 in part the State of California, did not originate with Mexico. It was 
 municipal law in the same territory under the sovereignty of Spain, 
 which immediately preceded that of Mexico. It did not originate, in 
 principle at least, with Spain. The Spanish sovereignty adopted it 
 from the municipal laws of a precedent sovereignty which Spain dis- 
 placed by conquest three centuries earlier. It is, perhaps, the only 
 creative thought that remains in existence today to recall the memory 
 of a vanished people whose institutions of civilization and rules of 
 law were well ordered and well settled before that time immemorial 
 in England from which the common law rule of riparian rights 
 descends to us without a birth certificate. 
 
 California Admitted to Union. 
 
 California became a sovereign State by virtue of the Act of 
 Admission on September 9, 1850. In 1849 the people resident in Cali- 
 fornia assembled in a constitutional convention and adopted a State 
 Constitution. The first Legislature was elected, and by the terms 
 of the Constitution, which had meanwhile been ratified by a vote of the 
 electors, convened in January, 1850, and proceeded to enact municipal 
 laws. These municipal laws were the first municipal laws over the 
 people of California regularly in effect since the cession of the territory 
 by Mexico terminated the jurisdiction of its municipal laws. During 
 the period intervening, the period between July, 1848, and January, 
 1850, what municipal law there was had effect merely through the 
 acquiescence of the people without formal enactment by Govern- 
 mental jurisdiction.* California never was made a Territory, nor did 
 Congress enact any municipal law for the people. The municipal law 
 accepted was adapted from the Mexican laws of the preceding 
 sovereignty, addition to it being made by the immigration from the 
 States of municipal laws of the States. Particularly the Mexican law 
 oi water appropriation and use without its former procedure under the 
 Mexican sovereignty was accepted and employed in making pro- 
 prietary use of the flow of stream waters by the immigrant people from 
 the States as well as by the native Californians. It was found adapted 
 
 * Lux V. Haggin, 69 Cal. 335. "The purely municipal law of Mexico continued 
 in force within this territory (California) until modified or entirely changed by 
 appropriate author! ly." 
 
25 
 
 to the conditions of the gold mining industry, which was then becom- 
 ing the dominant industry of the State. So satisfactory was it that 
 subsequent to the institution of the State it was continued by suffer- 
 ance of the State Legislature as the law of water appropriation and 
 use without being formulated into the statutes until 1872, when it was 
 enacted into the Civil Code. 
 
 The Federal Government did not diminish the Governmental 
 property which the United States received from Mexico during the 
 period between the date of ratification of the treaty and the date of 
 the Act of Admission of California.* It had on the latter date the 
 identical property to which it had succeeded on the former date. 
 
 Act of Admission of California a Grant in Presenti of Sovereign 
 Property. 
 
 The Act of Admission not only conferred sovereignty on Cali- 
 fornia, but it was a grant to the State of some of the California terri- 
 torial portion of the property which the United States had received 
 from Mexico. As to the property granted, the Act of Admission 
 was a grant in presenti, a present grant, the State becoming vested 
 with the property granted to it as of the date of the instrument 
 of conveyance, the *'Act of Admission." The Act is as follows : 
 
 ACT FOR THE ADMISSION OF THE STATE OF CALIFORNIA INTO 
 
 THE UNION. 
 
 Whereas, The people of California have presented a constitution and asked 
 admission into the Union, which constitution was submitted to Congress by the 
 President of the United States, by message dated February thirteenth, eighteen 
 hundred and fifty, and which, on due examination, is found to be republican in its 
 form of government ; 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled. That the State of California shall be 
 one, and is hereby declared to be one, of the United States of America, and 
 admitted into the Union on an equal footing with the original States in all respects 
 whatever. 
 
 2. The said State of California is admitted into the Union upon the express 
 condition that the people of said Stat«, through their Legislature or otherwise, 
 shall never interfere with the primary disposal of the public lands within its limits, 
 and shall pass no law and do no act whereby the title of the United States to, 
 and right to dispose of, the same shall be impaired or questioned; and that they 
 shall never lay tax, or assessment of any description whatsoever, upon the public 
 domain of the United States; and in no case shall non-resident proprietors, who 
 are citizens of the United States, be taxed higher than residents ; and that all the 
 navigable waters within the said State shall be common highways and forever 
 free, as well to the inhabitants of said State as to the citizens of the United 
 States, without any tax, impost, or duty therefore; provided, that nothing therein 
 
 * Shtvely v. Bozvley, 52 U. S., i. "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 discovery 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." 
 
26 
 
 contained shall be construed as recognizing or rejecting the propositions tendered 
 by the people of California, as articles of compact in the ordinance adopted by the 
 convention which formed the Constitution of that State. 
 
 3. All laws of the United States which are not locally inapplicable shall have 
 the same force and effect within the said State of California as elsewhere within 
 the United States. 
 
 Approved September 9, 1850. 
 
 Obviously the United States did not grant to California the 
 public land — that portion of the soil of the United States Governmental 
 land which was above the surface of the navigable waters, exclusive of 
 tracts in the possession of the Federal Government administration of 
 its own jurisdiction — but, reserving to itself the public land, it 
 subjected its continued ownership to the municipal jurisdiction of the 
 sovereign State it had created. From being sovereign owner of the 
 public land in California, the United States became a proprietary- 
 owner under the State jurisdiction or sovereignty, covenanting only 
 that the State should not interfere with its proprietary primary disposal 
 of or tax the land.* 
 
 While not directly declaring the grant in express words, the 
 United States nevertheless granted to the State of California the soil 
 of the United States Governmental land which was underneath the 
 surface of the natural navigable waters, reserving from its grant the 
 easement of a common free water highway for the vessels of the 
 citizens of all of the States and of its own citizens.** 
 
 * Woodruff V. North Bloomiield Gravel Mining Co. (i8 Fed. Rep. p. 772). 
 "Upon the cession of California by Mexico, the sovereignty and the proprietorship 
 of all the lands within its borders, in which no private interest had vested passed 
 to the United States. Upon the admission of California into the Union, upon an 
 equal footing with the original States the sovereignty for all internal municipal 
 purposes, and for all purposes except such purposes and with such powers as 
 are expressly conferred upon the National Government by the Constitution of the 
 United States, passed to the State of California. Thereforth, the only interest 
 of the United States in the public lands was that of a proprietor, like that of 
 any other proprietor, except that the State, under the express terms upon which 
 it was admitted, could pass no laws to interfere with their primary disposal, and 
 they were not subject to taxation. In all other respects the United States stood 
 upon the same footing as private owners of land. They could authorize no in- 
 vasion of private property, either to enable their grantees to mine the lands pur- 
 chased by them of the Government, or otherwise." 
 
 ** Martin v. Waddell, 16 Pet. 410. "When the Revolution took place, the people 
 of each State became themselves sovereign, and in that character held the abso- 
 lute right to all their navigable waters and the soils under them, subject only 
 to the rights since surrendered by the Constitution to the General Government." 
 
 U. S. 14, How., 571-575- "A State law granting exclusive right to navigable 
 upper waters of a river wholly in the State, separated from tide water by innavi- 
 gable falls, is not repugnant to the Constitution nor any law of the United States." 
 
 Pollard's Lesse v. Hagan, 3 How., 212. "The navigable waters and the soils 
 under them were not granted to the United States by any of the original States, 
 but were reserved to the States respectively; and the new States have the same 
 rights, sovereignty, and jurisdiction over this subject as the original States." 
 
27 
 
 Granting some land to the State of California and reserving to 
 itself the remainder of the land as a proprietary estate, the land which 
 the United States acquired from Mexico was all accounted for. There 
 remained the sovereign property in the right of appropriation and use 
 of the flow of the stream waters which the United States received 
 from Mexico. Did the United States grant this sovereign property 
 cf its own possession to the sovereignty of California, vi^hich it created, 
 or does the United States still own this property? 
 
 Act of Admission Passed Sovereignty of Right to Appropriate and 
 Use Water of Streams. 
 
 If the United States did not grant it by its Act of Admission to 
 California, the United States is still sovereign owner of the right of 
 appropriation and use of the flow of the waters of the streams in Cali- 
 fornia. If the United States be still sovereign owner, the power of 
 control, which President Taft and Secretary Ballinger claim for the 
 Federal Government over the appropriation and use of the flow of 
 the waters of streams on, by, or adjacent to the United States pro- 
 prietary public land, is not limited in any way by, or to, proprietorship 
 of the public land, but is a sovereign power of control over any and 
 every appropriation and use of the flow of the water of the streams of 
 California. Every appropriation and use of the stream waters already 
 made in California then must be a proprietary use of sovereign prop- 
 erty of the United States, under and by virtue of the franchise or 
 permit of the Federal Government. Certainly there can be no juris- 
 diction of the State of California over any sovereign property of the 
 United States. Any municipal enactment of the Legislature of Cali- 
 fornia undertaking to provide terms and conditions of the issuance of 
 the franchise or permit of the State to make proprietary use of the 
 flow of the stream waters would be ultra vires, void because the State 
 of California would not be the owner of the property, and there 
 would be no jurisdiction. 
 
 During the period between the date of ratification of the Treaty 
 of Guadalupe Hidalgo, and the date of admission of California, the 
 Federal Government did not by any act of Congress grant to any 
 proprietor of land any of its absolute title to the right of use of the 
 flow of the water of the streams in California which it acquired from 
 Mexico. The Federal Government during this period did not by any 
 act of Congress substitute any other precedent condition for **use" as 
 the essence of its franchise or permit to make proprietary appropriation 
 
28 
 
 and use of the flow of the stream waters. The Federal Government 
 made during this period no qualification of land proprietorship what- 
 ever as a condition of the issuance of the franchise or permit to make 
 proprietary use of the flovv of the stream waters from which the United 
 States proprietary ownership of the public land subsequent to the 
 admission of California could become invested with a proprietary right 
 to a permit or franchise as of a date prior to the admission of Cali- 
 fornia. 
 
 If a qualification of land proprietorship to the possession of the 
 permit or franchise for appropriation and use of the water of the 
 streams be assumed as inferable from the statutes of the United 
 States relating to the disposal of the public land which were in force 
 prior to the admission of California, the efifect would be to divide the 
 use of the flow of the water of the streams equally as to all of the 
 public land (as it was at the date of admission of California), no more 
 and no less by franchise or permit of the United States to one sub- 
 division of the public land than to another subdivision really equal to 
 it. This assumption of land proprietorship as a qualification to the 
 United States franchise or permit to use the flow of the stream waters, 
 v/ould create a condition equivalent to the condition that would exist 
 were the right of use of the stream waters the proprietary estate of 
 the land owners including the United States as proprietor of the 
 public land. Obviously, the assumption of the qualification of land 
 proprietorship as a condition of the Federal Government franchise or 
 permit to make proprietary use of the flow of the water of the streams 
 in California, from which the United States proprietary ownership of 
 the public land subsequent to admission of California could become 
 invested with a proprietary right to a permit or franchise as of a date 
 prior to the admission of California, leads to inadmissible conclusions. 
 
 If the United States, by the Act of Admission of California, 
 granted to the State the sovereign property right of appropriation and 
 use of the flow of the water of the streams without alteration from 
 the substance in which it acquired that property right from Mexico, 
 the conveyance must be implied from the particular words of the act, 
 "and admitted into the Union on an equal footing with the original 
 States in all respects whatever." The intention of the words was to 
 imply that California, successor in sovereignty to the United States, 
 should thereby become invested as to sovereign property which the 
 United States then held in the Territory, with all portions of it of the 
 identical nature and description of sovereign property which the 
 original States had reserved to themselves when they ratified the 
 
29 
 
 Constitution of the United States. It was necessary and unavoidable 
 that the United States should grant these sovereign properties to the 
 States it admitted from territory which it had acquired and possessed 
 in its sovereignty, in order to create the condition of equality of 
 sovereignty between the States.* 
 
 The reservation by the United States of a proprietary estate in 
 the public land did not impair the equality of sovereignty between the 
 States inasmuch as the equitable ownership of the sovereign over the 
 proprietary estate was granted. The United States did not reserve in 
 the Act of Admission of California any proprietary estate in the 
 sovereign property right to appropriate and use the flow of the stream 
 waters — or rather it did not reserve any preference right to the 
 franchise or permit of the State to make proprietary use of the State's 
 sovereign property right to appropriate and use the flow of the stream 
 waters. Such a reservation cannot be implied in the absence of express 
 words of reservation because there was no known state of facts or 
 knowledge of future conditions existing from which to imply a reserva- 
 tion of any such proprietary estate or right. 
 
 If the United States reserved the sovereign property right of 
 appropriation and use of the flow of the water of the streams which 
 it received from Mexico when it admitted California as a sovereign 
 State, the reservation made the States unequal in sovereignty — it 
 admitted California on an unequal footing with the other States 
 despite the declaration of equal footing in the Act of Admission. The 
 mequality would result because the original States did not grant to 
 the United States their sovereign property rights to appropriate and 
 use the flow of the water of their streams. Congress was without 
 power to create any inequality of sovereignty between the States, even 
 had it desired to accomplish it.* 
 
 * Pollard's Lessee v. Hagan et ai, 3 How. 212. "When the United States 
 accepted the cession of the Territory they took upon themselves the trust to 
 hold the municipal eminent domain for the new States, and to invest them with 
 it to the same extent, in all respects, that it was held by the States ceding the 
 Territories." * * * 
 
 "We therefore think the United States hold the public lands within the new 
 States by force of the deeds of cession, and the statutes connected with them, 
 and not by any municipal sovereignty which it may be supposed they possess, 
 or have reserved by compact with the new States, for that particular purpose. 
 
 ^Pollard's Lessee v. Hagan et ai, 3 How., 212. "And if an express stipula- 
 tion had been inserted in the agreement granting the municipal right of sover- 
 eignty and eminent domain to the United State, such stipulation would have 
 been void and inoperative, because the United States have no constitutional 
 capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within 
 the limits of a State or elsewhere, except in the cases in which it is expressly 
 granted." 
 
30 
 
 The discussion here of whether or not the sovereign property- 
 right of appropriation and use of the flow of the stream waters was 
 granted to California by the Act of Admission has not been needed to 
 estabHsh the fact that the United States did thereby grant this 
 sovereign property to California and entirely divest itself of title 
 thereto. The Supreme Court of the United States has said that the 
 original States, when they became sovereign by the Resovlution, 
 became sovereign over the waters within their territorial limits; that 
 the original States did not grant the waters to the United States, but 
 continued to hold them in their sovereign jurisdiction, and that the 
 new States have the same rights, sovereignty, and jurisdiction over 
 their respective waters as have the original States over theirs; and 
 that even if the Act of Admission of a State provided by express 
 stipulation for the exercise by the United States of a municipal right 
 of sovereignty or jurisdiction within the State, the stipulation would 
 be void because the United States have no constitutional capacity to 
 exercise municipal sovereignty within the limits of a State. 
 
 The discussion has been made so that the dififefentiation and 
 identity of the sovereign property right to appropriate and use the 
 water of the streams, which the United States received by cession 
 from Mexico, may be clearly recognized apart from any other 
 sovereign property which the United States received by the same Act 
 of Cession, and so that it can be clearly seen that, in fact as in law, 
 the United States, without impairing the aggregate of the property 
 or altering its substance, granted it in the precise identity in which 
 it was acquired, a sovereign property, to the sovereign State of Cali- 
 fornia by their Act of Admission. 
 
 Riparian Rights in California. 
 
 The first Legislature of California, convened under the State 
 Constitution before the admission of the State, on April 13, 1850, 
 enacted what was known then and since as the Practice Act, adopting 
 by a single sentence the common law of England and making it the 
 municipal law of the State.* The primary idea was to provide 
 without delay a Civil Procedure and rules of decision for the Courts. 
 
 * Chapter 95. An Act Adopting the Common Law. Passed April 13, 1830. 
 The People of the State of California, represented in Senate and Assembly, 
 do enact as follows : 
 
 The Common Law of England, so far as it is not repugnant to or inconsistent 
 with the Constitution of the United States, or the Constitution or laws of the 
 State of California, shall be the rule of decision in all the Courts of this State. 
 
31 
 
 But, as one of the rules of the common law, the Legislature enacted 
 the so-called law of riparian rights. 
 
 When the United States admitted California by the Act of Admis- 
 sion, the implied grant by the State of riparian easements vested 
 concurrently, by virtue of the previous enactment of the Common Law 
 by the Legislature, in the United States as proprietor of the riparian 
 public land. This date, the date of the Act of Admission, September 9, 
 1850, is the date of incidence of riparian proprietorship in the State of 
 California. The Act of the Legislature enacting the Common Law 
 before the State had de jure sovereignty is the instrument by means 
 of which the State of California created and granted riparian easements 
 to the proprietors of riparian lands. 
 
 In 1893, the Legislature, influenced thereto by the idea of thereby 
 protecting the industry of hydraulic mining from injunction by riparian 
 proprietors, repealed by statute the riparian law. The repeal did not 
 have the effect desired because it could not operate to divest riparian 
 proprietors of the grant of riparian easements by the State which had 
 vested forthwith, being a grant in presenti. The only effect of the 
 repeal has been that grants by the State of its riparian public land 
 have, since the repeal of the riparian law, been made without the 
 additional grant of riparian easements. 
 
 Riparian Rights of United States in California. 
 
 The United States proprietor of public land in California is pos- 
 sessed of riparian easements to its proprietorship of riparian public 
 land. The title o^f the United States proprietor of riparian easements 
 is held subject to the same conditions of the municipal law of the State 
 as is the title of any other proprietor of riparian easements. 
 
 An invasion of the riparian proprietorship of the United States by 
 the holder of a permit or franchise of the State to appropriate and use 
 the flow of the water of the stream bears the same consequences to 
 the United States proprietorship that it does to any other riparian pro- 
 prietorship.* Sufferance of the invasion of a statutory period operates to 
 subrogate the riparian easement to the operation of the State's permit 
 during its term without compensation for the loss or damage, if any, 
 to the riparian proprietor. It is common, under such a condition, to 
 describe the right of water appropriation and use, the water right, as 
 
 * Kansas v. Colorado, 206 U. S., 46. "Where the Federal Government is not 
 interested as the owner of riparian lands, the only interest it has in the water 
 of a stream is as to its use for purposes of navigation, and it can lay no claim 
 to the use of the water for any other purpose, not even for irrigation." 
 
32 
 
 being vested by prescription as against the ripafian right of its pro- 
 prietor. Speaking more precisely, the right of water appropriation, 
 the permit or franchise of the State to make proprietary use of the 
 flow of the water of the stream, has become temporarily dominant over 
 the proprietorship of the riparian easement. When the water appro- 
 priation ceases, when the permit of the State ends its term, the riparian 
 proprietor receives back his riparian easement unimpaired. 
 
 Proprietary appropriation and use of the flow of the water of 
 many streams has become vested against, or dominant over, the United 
 States riparian proprietorship on those streams through prescription. 
 The sufferance of the prescription by the United States has, how- 
 ever, caused it no loss, since the United States have heretofore made 
 and do now make disposal of parcels of riparian public land at the 
 same unit prices as made for the disposal of public land not riparian. 
 The sufferance of the United States in permitting the statute of limita- 
 tions to run in favor of the holder of the State's permit to appropriate 
 and use the flow of the water of the streams during any period of 
 so-called permanent reservation of public land from disposal can cause 
 the United States no loss or damage because the United States during 
 the period of withdrawal from disposal can make no income earning 
 use of the riparian land which the existence of the riparian proprietor- 
 ship will increase. 
 
 . The United States riparian proprietor has an equal right to -that of 
 any other riparian proprietor to enjoin, under the provisions of the 
 municipal law of California, the invasion of its riparian easements by 
 the holder of the permit of the State to appropriate and use the flow 
 of water of the streams."^ It is entitled, equally with* any other riparian 
 
 * Lux V. Haggin, 69 Cal., .?.?^. If the innavigable rivers and their beds be- 
 longed to the State (California) when admitted into the Union, the State could 
 grant or surrender them to the riparian proprietors, of whom the United States 
 was one. 
 
 This case illustrates the confusion in the mind of a Court when it undertook 
 to deal with the riparian law on the theory that it was a law applying to the 
 appropriation and use of water. In the first place there is no property in flowing 
 water — only property in its use as it passes. The "innavigable rivers" could not 
 have belonged to the State (California) when admitted into the Union. Before 
 Admission, California was simply a name, not a sovereignty, such for instance as 
 Texas was before its Admission. California was not a Territory of the United 
 States before Admission— it was merely territorial land of the United States. 
 Admission obviously did not grant to California the "innavigable river beds," but 
 reserved them to the United States as an unsegregated part of its proprietary public 
 land. The rivers themselves (the waters) were not granted to California by 
 Admission because the flowing water was not capable of being owned as property. 
 
33 
 
 proprietor, to prove loss and damage and to have compensation there- 
 for, in the event of invasion of riparian easements by a holder of the 
 State's permit to appropriate and use the flow of the water. Practically 
 the United States never enjoins against invasion of its riparian pro- 
 prietorship simply because it would find itself absolutely unable to 
 prove loss or damage consequent on the invasion. 
 
 The holder of the permit of the State to appropriate the flow of 
 the water of a stream for a public use, as distinguished from a private 
 use, may, under the municipal law of the State, invade the riparian 
 easements (except those owned by the United States) by an action to 
 condemn them, the payment of the valuation fixed by the Court con- 
 veying the proprietary title to the riparian easements condemned from 
 the defendant riparian proprietor to the holder of the State's permit. 
 No right of action to invade riparian easements owned by the United 
 States is necessary because there is no value of a riparian easement 
 to riparian public land which can be established under the conditions 
 of disposal of the public land which the United States has elected. 
 
 There were no riparian proprietors in California until the Act of Admission by 
 erecting California into a sovereignty gave it power to create and grant easements 
 to proprietors. It did then, concurrently, create riparian easements and grant them, 
 creating riparian proprietorships, of whom the United States was one along with 
 the owners of riparian land under the former Mexican sovereignty. 
 
 Further, the ownership of the beds of the rivers, whether navigable or "innavi- 
 gable," is not material to the riparian rights of riparian proprietors. The land of the 
 river bed carries the burden of the servitude or emplacement on it of the water flow 
 of the river no matter who the riparian proprietors may be. The owner of the river 
 bed is obviously benefited when anyone removes the water flow from it, but has no 
 right of removal of the water himself by virtue of the ownership, and only such 
 rights as the municipal statutes give him to resist invasion to remove it. 
 
 The case was really over a conflict of rights of appropriation, although Lux 
 pleaded his riparian proprietorship as the basis of his right of appropriation. 
 The decision seems to have turned on whether or not "irrigation" was a use 
 of water for which the riparian law was applicable as being a reasonable use 
 of the water by a riparian proprietor. It does not seem to have suggested itself 
 to the Haggin attorneys to ask the Court to define or part the land of which Lux 
 was riparian proprietor from other of his land of which he was merely proprietor. 
 Lux owned an enormous tract of land extending back many miles from the banks 
 of the river. It was all acquired from the public land in subdivisions of 160 
 acres or less. It would have been interesting to have had the Court make a ruling 
 as to whether the riparian proprietorship was of all the contiguous land which 
 Lux owned, even though some of the 160-acre parcels were twelve miles away 
 from the river front, or only of the 160-acre parcels which touched the river banks. 
 
34 
 
 Water Appropriation Law in California. 
 
 The sovereign property right to appropriate and use the flow of 
 the water of the streams which the State of California received from 
 the United States by the grant of their Act of Admission, the State still 
 holds as sovereign property in the precise identity in which it was 
 received. The State permits proprietary use of its sovereign property 
 on conditions prescribed by provisions of its municipal statutes. "Use 
 of the flow of the water" is made of the essence of the issuance of its 
 franchise or permit to appropriate the flow of the water. 
 
 United States Proprietor of Water Appropriations in California. 
 
 The United States in subordination to the jurisdiction of the State 
 has the same right (if or where such right is within its constitutional 
 powers) to possess and enjoy the permit or franchise of the State to 
 m-ake proprietary use of the State's property right to appropriate and 
 use the flow of water of streams as any person duly qualified by the 
 State, but, the proprietary use of the State property by the United 
 States is, in law, subject to the same municipal obligations as pro- 
 prietary use by a person. In fact, this has not been the case. The 
 payment of taxes on an assessment of the value of the franchise or 
 permit of the State to appropriate and use the flow of water of a 
 stream is a municipal obligation of a person possessing the franchise, 
 but the United States holder of the franchise in place of a person, 
 (since the municipal law of California does not recognize the United 
 States in any proprietary capacity except as proprietor ©f the public 
 land), has not been taxed on an assessment of any one of several State 
 franchises to appropriate and use the flow of the water of a stream 
 which it has acquired by mesne conveyances from persons to whom 
 the original franchises issued. 
 
 United States Land Proprietor in California. 
 
 The United States has also become by mesne conveyances the 
 proprietor of land in California which is neither public land nor land 
 brought under its sovereignty by cession of the sovereignty of the 
 State.* It has become the proprietor of water works by original con- 
 struction and by purchase from persons who constructed them. It has 
 acquired mortgage interests in proprietary land. All of these kinds of 
 
 . * Van Brocklen v. Anderson, 117 U. S. 115. 'The United States at the dis- 
 cretion of Congress, may acquire real estate in any State when needed for the 
 use of the Government in the execution of any of its powers." 
 
35 
 
 property in the possession of persons are subject to municipal assess- 
 ment and municipal taxes are paid by them. The same properties 
 owned by the United States as proprietor have not been assessed or 
 taxed although they are not exempted from municipal taxation by any 
 covenant of the Act of Admission of California or by virtue of any 
 provision of the Constitution of the United States.* 
 
 Rights of Way for Water Works Emplacement Acquired for Public 
 Use by Condemnation. 
 
 The holder of the permit or franchise of California to appropriate 
 the flow of the water of a stream for a public use or service, as dis- 
 tinguished from a private use or service, may, under the municipal law 
 of the State, invade by condemnation any land proprietorship (except 
 the public land) whatever necessary to obtain from it an easement of 
 a necessary situs (right of way) for the emplacement of water works 
 
 * Assuming that some fiction of the law will be found or invented to sustain 
 in law the continuance of the exemption from municipal taxation by California 
 of these properties owned by the United States as proprietor, it may be assumed 
 that the same legal fiction will be employed to exempt from taxation the fran- 
 chises or permits of the State to appropriate and use the water flow of streams, 
 and to exempt from taxation the water-works of diversion and use, where the 
 use is the development of water power and its electrical transmission, and where 
 a "transfer to the United States of the necessary water rights [State franchises]" 
 has been made by the holder thereof as partial consideration paid to the United 
 States for its permit to make temporary emplacement of more or less water- 
 works construction on public land reserved from disposal for the purpose. [The 
 "transfer to the United States of the necessary water rights" is a suggestion 
 of the Report of Secretary Ballinger to the President.] 
 
 Disguise the economic result by any description of legal or other fiction that 
 may suggest itself, there can be no avoidance of the fact, namely, that the result 
 of sustaining by legal fiction the exemption from municipal taxation of the pres- 
 ent proprietary estates, (other than the public land) of the United States in Cali- 
 fornia, will be to exempt from municipal taxation by California all of its 
 franchises or permits for proprietary use of its sovereign property right of appro- 
 priation and use of the flow of water of streams, together with the water power 
 and electric power works erected for over 3,000,000 horsepower of water power 
 development which will ultimately be effected in part by emplacement of the 
 works construction on the public land reserved for the purpose of permitting 
 such emplacement. 
 
 Neither can there be avoidance of the fact, that by ways of commercial indi- 
 rection, and in the disguise of moderate charges or fees assessed on capital in- 
 vestment or income, the United States will be imposing and collecting municipal 
 taxes in the State of California, thereby ousting the sovereignty of California and 
 re-establishing their own as it existed before their Act of Admission. 
 
36 
 
 construction. No right of action is necessary for the invasion of the 
 United States proprietorship of the public land to obtain from it an 
 easement of a necessary situs (right of way) for the emplacement of 
 water works construction. First, because there is no material loss of 
 value of the public land from which the easements of right of way 
 are subtracted by invasion owing to the conditions of disposal of the 
 public land which the United States has elected. The disposition price 
 of the parcels of public land from which easements of any kind have 
 been subtracted has never been reduced by the United States. The 
 statutes providing for disposal have uniformly provided that without 
 deduction of price by reason of easements appropriated by invasion, 
 or expressly granted by Congress, the parcels shall be disposed of 
 subject to the servitude of any existing easements. Second, the United 
 States has the proprietary right, just as have other land proprietors, to 
 enjoin an invasion appropriating easements the subtraction of which 
 causes loss or damage to the public land, and to have ascertained and 
 paid to it compensation for the loss or damage. Third, the Supreme 
 Court in an opinion by Justice McLean in 1853 (^) settled the legal 
 principle establishing the right of lawful invasion of the public land 
 and appropriation therefrom of easements of right of way for public 
 use, without action at law or the permit of a ministerial officer of the 
 Federal Government. 
 
 U. S. Statutes Granting Rights of Way for Water Works Emplace- 
 ment on Public Land. 
 
 The United States statutes broaden the right of the holder of the 
 State's franchise or permit of appropriation and use of the flow of 
 stream water to enter the public land and appropriate therefrom ease- 
 ments (rights of way) for emplacement of waterworks. ^Section 9 
 of the Act of Congress of July 26, 1866, provides that the entry on the 
 public land and the appropriation therefrom of easements (rights of^ 
 way) for the emplacement of water works, and for the flow of water 
 through them, may be made without reference to whether or not the 
 use contemplated or made of the flow of the water of the stream was 
 a private use or a public use. The importance of this enactment arises 
 
 "^(Rcv. Stat. 2339. Sec. 9 of Act of Congress, July 26, 1866.) 'That wherever 
 by priority of possession, rights to the use of water for mining, agricultural, manu- 
 facturing, or other purposes have vested and accrued, and the same are recog- 
 nized and acknowledged by the local customs, laws, and the decisions of courts, 
 the possessors and owners of such vested rights shall be maintained and pro- 
 tected in the same ; and the right of way for the construction of ditches and 
 canals, for the purposes aforesaid, is hereby acknowledged and confirmed." 
 
37 
 
 from the fact that without its grant the appropriators of water works 
 easements for private use, unhke appropriators for a pubHc use, were 
 mere trespassers on the public land who could be evicted whenever 
 the Federal Government elected, the trespass not being capable of 
 vesting a right by prescription to any estate in the public land. 
 
 That Congress intended it as an Act granting a property right in 
 easements which would thereafter be appropriated as well as a con- 
 firmation of appropriation or grant of right to appropriations which 
 were then existing, seems very clear from the *Act of Congress of 
 July 9, 1870, which provided that all public land grants of the United 
 States should be subject to all easements granted by the Act of 
 July 26, 1866. 
 
 It has been suggested that the Act of July 26, 1866, provided for 
 the granting by the United vStates of rights to appropriate and use the 
 flow of stream water. This, however, was not its purpose. It was 
 intended to define the doubtful status of possession of easements of 
 water works emplacement on the public land. These easements were 
 appropriated for private use in connection with mining almost without 
 exception. The development of hydraulic mining on an enormous 
 scale, and the increasing use of large developments of water power in 
 quartz mining, were requiring the investment of great sums of money 
 in extended water works construction. The use of the appropriated 
 easements was unquestionably private and the entry made on the 
 public land was undoubtedly a trespass. Speculators were acquiring 
 land from the Federal Government which included these easements 
 ?.nd railroad land grants were being made wholesale over them. Titles 
 to the right to appropriate water were secure but titles to the ease- 
 ments on the public land were becoming more and more indeterminate 
 and large investments of capital not only in water works construction, 
 but in mines dependent on the easements, were being jeopardized. 
 The Act of Congress confirming a title by grant to appropriations of 
 easements already made and vesting a grant of the easements as others 
 were from time to time appropriated settled the vital matter of titles 
 to the easements of water works emplacement on the public land. 
 That was the reason for the law. 
 
 That the Act is unmistakable as an Act providing for the granting 
 of rights of way (easements) appears clearly when the first clause ot 
 
 *(Rev. Stat. 2340. Act of Congress, July g, 1870.) "All patents granted or 
 pre-emptions or homesteads allowed shall be subject to any vested and accrued 
 water rights, or rights to ditches and reservoirs used in connection with such water 
 rights as may have been acquired under or recognized by the preceding section." 
 
88 
 
 the Act is read as the definition or denomination by Congress of the 
 condition precedent from which the grant of rights of way by the 
 United States would be initiated. In declaring a condition precedent 
 to the grant of rights of wa}^ Congress was not creating a legal status 
 for water appropriations within its own jurisdiction, but was recog- 
 nizing the fact of water appropriations outside of its judisdiction. 
 
 The subsequent Act of July 9, 1870, is consistent with the first 
 Act with this interpretation applied. It was enacted to protect the 
 title of possessors of rights of way under the original Act from attack 
 by grantees of the United States on the ground that the grant of rights 
 of way made by that Act was only of those which were appropriated 
 or possessed when the Act was passed. Since its enactment all land 
 patents of the United States have reserved from the grant of the patent 
 to their possessors all rights of way of water works, ditches, canals, 
 and reservoirs, regardless of whether the use of the water through 
 them was a private use or a public use. 
 
 The uncertainty of interpretation which is evident in reports of 
 adjudicated cases under the two Acts, and particularly the first, has 
 very likely been due to the unconscious impress on the Courts of the 
 popular misinformation or misunderstanding regarding mining rights 
 and water appropriation rights which has existed in California from 
 the early days of gold mining almost down to the present time.* 
 Both the mining customs which have since become the Mining Law 
 of the United States, and the water appropriation customs which have 
 since become the Water Appropriation Law of California had their 
 source in the mining and water laws of Mexico. Both the mines and 
 the flow of water were government property in Mexico and both were 
 appropriated by private persons in much the same way. There was a 
 form of declaratory notice of intention to make the appropriation 
 required by Mexican law for mines and another for water. The gold- 
 seekers from the States absorbed this much from the native Mexican 
 population of California who became gold-seekers with them and were 
 their first instructors in the practice of gold mining. It soon became 
 customary among the miners to use a single form with which to make 
 both appropriations or claims because the gold mining and use of 
 water went together. It is interesting to find a number of early day 
 miners still in the business following this old custom of claiming water 
 
 * Howell V. Johnson, 89 Fed. Rep., 556. "This section (Rev. Stat. 2339) recog- 
 nizes the right of the prior appropriator of water upon the public domain, even as 
 against the United States and its grantees, if such appropriation was authorized by 
 the statute of the State where the appropriation was made." 
 
39 
 
 rights for mining along with the mining claim in the same written 
 notice of location of mining claim. The early day miners did not draw 
 fine distinctions, and assumed without inquiry, since the Government 
 of Mexico, which formerly owned California, owned both mines and 
 water, that the United States must likewise own both. Such a general 
 acceptance of the assumption and its recognition in customs which 
 were not questioned as being law good enough for the miners, 'could 
 hardly fail of unconsciously affecting the viewpoint of Courts who 
 along with litigants were miners and like them accepted the customs 
 of mining without question.* 
 
 Congress Changes Condition Precedent for Its Grant of Rights of 
 Way. 
 
 The Act of Congress of March 3, 1891, was passed with the inten- 
 tion of serving a special purpose. Irrigation of the so-called arid 
 lands in the Rocky Mountain States was beginning to attract com- 
 mercial attention and invite the investment of capital from outside of 
 the States. While there was no question over the vesting of title to 
 rights of way on public land after the completion of the water works 
 construction, the same certainty did not exist as to the title to such 
 rights of way during the period, which might be several years, of 
 complete construction of irrigation water works in which large sums 
 of capital would be risked.** The Act*** with the purpose of assisting 
 
 *Jennison v. Kirk, g8 U. S., 453. "It will thus be seen that the Federal Stat- 
 utes merely gave a formal sanction to the rules already established. These rules 
 had been built up in reliance on the tacit acquiescence of the United States, the 
 true owner of the lands and waters on which appropriations were made, and these 
 statutes acquiesced therein expressly, *a voluntary recognition of a pre-existing 
 right rather than the establishment of a new one.' " 
 
 **Bear Lake Irr. Co. v. Garland, 154 U. S., ig. "No title, legal or equitable, 
 is acquired to a right of way across the public lands for ditches and canals until 
 the completion of the work." 
 
 ***Act of Congress, Mar. 3, 189 1. Sec. 18. "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 file with the Secretary of the In- 
 terior 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 the canal and its laterals, and fifty feet on each side of the marginal limits 
 thereof; * * * Provided. That no such right of way shall be so located as to 
 interfere with the proper occupation by the Government of any reservation, and 
 the privilege herein granted shall not be construed to interfere with the control 
 of water for irrigration and other purposes under the authority of the respective 
 States and Territories. 
 
 "Sec. 19. That any canal or ditch company desiring to secure the benefits of 
 this act shall, within twelve months after the location of its canal, if the same be 
 
40 
 
 enterprise in irrigation created a new condition precedent for the grant 
 of rights of way by the United States where either private or public 
 irrigation use was made or to be made of the water. 
 
 The new condition precedent was the filing with, and approval by, 
 the Secretary of the Interior, of certain maps and certificates, on which 
 approval the grant of the rights of way would vest forthwith. To give 
 such grants a legal entity their definition by the field notes of a survey 
 connecting them with the survey of the public land was indispensable, 
 hence the provision in the Act providing for the making and filing of 
 a map of the right of way. The provision for a forfeiture in the event 
 of failure to use the right of way within five years is incomplete since 
 no legal procedure is prescribed for establishing the fact of failure to 
 use the right of way within the time prescribed. Following the rule 
 laid down by the Courts it would seem that instead of ''forfeiture" 
 the act should have provided for a "reversion" of the grant. 
 
 By way of giving additional assistance to irrigation enterprise the 
 Act prescribed conditions under which the United States would grant 
 rights of way within its Government land reservations (lands which 
 the United States owned as sovereign and over which it had sovereign 
 jurisdiction) as well as on the proprietary public land. Indian reserva- 
 tions in the States and Territories of the Rocky Mountain region 
 were particularly in view in the making of this provision. 
 
 While the special purpose of the Act was as has been described, 
 its form was general. Advantage was taken of this in California and 
 other States to secure titles to rights of way for water works without 
 first building the works or even securing any water. All that was 
 necessary was to conform to the requirement of the Act by precedently 
 declaring that the use of the water was to be irrigation. 
 
 The Act of Congress of January 21, 1895, extended the operation 
 of the new condition precedent, (the condition precedent created by 
 
 upon surveyed lands, and if upon unsurveyed lands within twelve months after 
 the survey thereof, by the United States, file with the register of the land office 
 for the district where such land is located a map of its canal or ditch and res- 
 ervoir; and upon approval thereof by the Secretary of the Interior the same 
 shall be noted upon the plats in said office, and thereafter all such lands shall be 
 disposed of subject to such right of way. * * * 
 
 'Sec. 20. That the provisions of this act shall apply to all canals, ditches, or 
 reservoirs heretofore or hereafter constructed, whether constructed by corpora- 
 tionsj individuals or associations of individuals, on the filing of the certificates 
 and maps herein provided for. * * * Provided, That if any section of said 
 canal or ditch shall not be completed within five years after the location of said 
 section the rights herein granted shall be forfeited as to any uncompleted section 
 of said canal, ditch, or reservoir, to the extent that the same is not completed at 
 the date of the forfeiture." 
 
41 
 
 the Act of March 3, 1891), to vest the grant of rights of way for water 
 works where the use of water was, or was to be, for private mining, 
 quarrying, or cutting and manufacturing lumber, but provided only 
 for grants of rights of way from the public land, irrigation being the 
 only consideration which the United States would accept for its grant 
 of rights of way within its sovereign land.* 
 
 The Act of Congress of February 26, 1897, provides that any of 
 the respective States could be granted rights of way for reservoirs for 
 the storage of water for irrigation, under the Act of March 3, 1891, to 
 the same extent as individuals or corporations.** The particular 
 significance of the Act is in the last clause, which, in effect, disclaims 
 for the United States in favor of the States, any claim of right to 
 regulate or control the charges for water by virtue of its proprietary 
 ownership of the land of the reservoirs. It is a repetition of the 
 disclaimer to the same effect in Section 18 of the Act of March 3, 1891, 
 that, the acceptance of a right of way for water works granted by the 
 United States on either its proprietary public land or sovereign land 
 in its Government reservations, should not be construed by the United 
 States as investing them with the right to interfere with the control 
 of the water under the authority (jurisdiction) of the respective States 
 or Territories. 
 
 The Act of Congress of May 11, 1898, simply amends the Act of 
 January 21, 1895, by extending the operation of the new condition 
 precedent to vest the grant of rights of way for water works where 
 the use of water effected through or by them was domestic purposes, 
 development of water power, public, and other beneficial uses, as well 
 
 * Act of Congress, Jan. 21, 1805 (28 Stat., 6:^5). "That the Secretary of the 
 Interior be, and hereby is, authorized and empowered, under the general regula- 
 tions to be fixed by him. to permit the use of the right of way through the public 
 land of the United States, not within the limits of any park, forest, military, or Indian 
 reservation, for tramroads, canals or reservoirs and fifty feet on each side of 
 the marginal limits thereof, or fifty feet on each side of the center line of the 
 tramroad, by any citizen or any association of citizens of the United States engaged 
 in the business of mining or quarrying or of cutting lumber and manufacturing 
 lumber. 
 
 ** Act of Congress, Feb. 26, 1897, (29 Stat., 599). "That all reservoir sites 
 reserved or to be reserved shall be open to use and occupation under the right- 
 of-way act of March 3, 1891. And any State is hereby authorized to improve and 
 occupy such reservoir sites to the same extent as an individual or private corpora- 
 tion, under such rules and regulations as the Secretary of the Interior may pre- 
 scribe : Provided, That the charges for water coming in whole or part from res- 
 ervoir sites used or occupied under the provisions of this act shall always be sub- 
 ject to the control and regulation of the respective States and Territories in which 
 such reservoirs are in whole or part situate." 
 
42 
 
 as irrigation, mining, quarrying, and cutting and manufacturing of 
 lumber.* 
 
 Repeal of U. S. Statutes Granting Rights of Way for Water Works. 
 
 The Act of Congress of February 15, 1901, repealed the Acts of 
 July 26, 1866, March 3, 1891, January 21, 1895, February 26, 1897, and 
 May II, 1898. The Act of July 9, 1870, was not repealed. Congress 
 may not have intended this effect to its Act but the effect is a fact 
 nevertheless. 
 
 The repealed Acts were Acts making grants in presenti on one, 
 •later another, condition precedent, of easements of rights of way for 
 the emplacement of water works on the public lands where the 
 grantees' use of the easements was a private use, and one of them, the 
 Act of March 3, 1891, making grants of easements of rights of way on 
 land of the sovereign jurisdiction of the United States where the 
 grantees' use of the easements in accomplishing irrigation might be 
 either a private use or a public use. 
 
 Act of Congress Providing for Tenancies of Public Lands for Rights 
 of Way. 
 
 The Act of February 15, 1901, in place of the grants in presenti 
 miade by the Acts repealed, specified the covenants of a permitted 
 tenancy on the public land and on certain of the lands in the sovereign 
 jurisdiction of the United States.** The phrase, "permit the use of 
 
 - * Act of Congress, May 11, 1898, (30 Stat., 404). Sec. i. "That the Secretary 
 of the Interior be, and hereby is, authorized and empowered, under general regu- 
 la,tions to be fixed by him, to permit the use of right of way upon the public lands 
 of the United States, not within the limits of any park, forest, military or Indian 
 r€;servations, for tramways, canals or reservoirs to the extent of the ground occupied 
 by the water of the Canals and reservoirs and fifty feet on each side of the 
 marginal limits thereof, or fifty feet on each side of the center of the tram- 
 road, to any citizen or association of citizens of the United States for the pur- 
 po^se' of furnishing water for domestic, public, and other beneficial uses. 
 
 Sec. 2. That rights of way for ditches, canals, or reservoirs heretofore ap- 
 proved under the provisions of Sections 18, 19, 20, and 21, of the Act of March 3, 
 1891, may be used for purposes of water transportation, for domestic purposes, or 
 fox -the development of power, as subsidiary to the main purpose of irrigation." 
 
 **^rf of Congress, Feb. 15, igoi. 31 Stat, at Large, p. ygo. "That the Sec- 
 retary of the Interior be, and hereby is, authorized and empowered, under gen- 
 eral regulations to be fixed by him, to permit the use of rights of way through the 
 public lands, forest and other reservations of the United States, and the Yosemite, 
 Sequoia and General Grant national parks, California, for electrical plants, poles, 
 arid lines for the generation and distribution of electrical power, and for telephone 
 and telegraph purposes, and for canals, ditches, pipes and pipe lines, flumes, tun- 
 nels, or other water conduits, and for water plants, dams, and reservoirs used 
 
43 
 
 rights of way" in the first clause of the Act, qualified by the proviso 
 of the last clause of the Act, that any permit may be revoked *'and 
 shall not be held to confer any [grant of] easement, or interest in, to, 
 or over any public land, reservation, or park," despite its disguise, 
 describes a relation of landlord and tenant between the United States 
 proprietary owner of the public land, and **any citizen, association, or 
 corporation of the United States" holder of the permit "to use rights 
 of way." 
 
 The landlord, United States, covenants to deliver the temporary 
 possession of parcels of the public land (or of land under the sovereign 
 jurisdiction) to the tenant, (citizen, association or corporation). 
 
 The tenant (citizen, association or corporation) covenants to 
 vacate and surrender the demised premises at will of the landlord 
 (revocation of permit or lease by the Secretary of the Interior who the 
 Act makes the real estate agent of the landlord United States). 
 
 The tenant (citizen, association or corporation) covenants as 
 consideration for the possession of the land temporarily, to emplace 
 thereon waterworks construction adapted to conduct water, (canals, 
 ditches, flumes, tunnels, reservoirs, water [power] plants, dams, pipes, 
 pipe lines, and other water conduits), and to use the water works 
 construction for the conduit of water for some one or more of purposes 
 which are named in the Act as, irrigation, mining, quarrying, manu- 
 facturing or cutting of timber or lumber, domestic, public, or any other 
 beneficial use, the last embracing the use of the water in power 
 development, and may additionally covenant to emplace thereon elec- 
 trical plants, poles and [wire] lines for the generation and distribution 
 of electrical power, and poles and [wire] lines for telephone and 
 telegraph purposes. 
 
 to promote irrigation or mining or quarrying, or the manufacturing or cutting 
 of timber or lumber, or the supplying of water for domestic, public, or any other 
 beneficial uses to the extent of the ground occupied by such canals, ditches, flumes, 
 tunnels, reservoirs, or other water conduits or water plants, or electrical or other 
 works permitted hereunder, and not to exceed 50 feet on each side of the mar- 
 ginal limits thereof, or not to exceed 50 feet on each side of the center line of such 
 pipe lines, electrical, telegraph, and telephone lines and poles, by any citizen, asso- 
 ciation, or corporation of the United States, where it is intended by such to ex- 
 ercise the use permitted hereunder or any one or more of the purposes herein 
 named: Provided, That such permits shall be allowed within or through any of 
 said parks or any forest, military, Indian, or other reservation only upon the 
 approval of the chief officer of the department under whose supervision such 
 park or reservation falls, and upon a finding by him that the same is not incom- 
 patible with the public interest; * * * And provided further. That any per- 
 mission given by the Secretary of the Interior under the provisions of this Act 
 may be revoked by him or his successor in his discretion, and shall not be held 
 to confer any right, or easement, or interest in, to, or over any public land, res- 
 ervation, or park." 
 
There is no covenant in the Act prescribing a money payment of 
 rental for the land, either public land or sovereign land, occupied in 
 tenancy, and there is no suggestion or implication that the authority of 
 the Secretary is anything more than ministerial in any matter con- 
 nected with his executing the leases of the public and other land for 
 the purposes mentioned. The Act, however, does however purport to 
 give the Secretary of the Interior unlimited discretion to terminate 
 a tenancy. 
 
 So far as the Act relates to the disposition of land within the 
 sovereign jurisdiction of the United States, the disposition of the land 
 of the reservations created for purposes of the Federal Government, 
 in distinction from reservations from present disposal of public land, 
 the Act is the paramount law. The United States by Act of Congress 
 may make the conditions of disposition of land within the jurisdiction 
 of the Federal Government anything Congress pleases. Such land is 
 tiot within the municipal jurisdiction of the State for any purpose. 
 
 So far as the Act relates to the disposition of the proprietary 
 public land of the United States the Act is not the. paramount law. 
 The Act does not make a primary disposal of the public land, with 
 which the State of California by the covenant of the Act of Admission 
 cannot interfere in any way. The Act does not make any kind of a 
 disposal of the public land. If the tenancy permitted by the Act be 
 assumed to be "primary disposal" the land tenanted would become 
 taxable by the State forthwith — an obviously impossible condition. 
 Therefore, the United States landlord of the public land and the 
 permitted tenant of the public land are both within the municipal 
 jurisdiction of the State of California, and the covenants of any 
 contract of tenancy entered into by or under this Act of Congress, are 
 subject to limitations imposed by the municipal law of California and 
 the interpretations the vState Courts put on them. 
 
 The United States landlord-proprietor of the public land may, or 
 may not, permit tenancy of the public land for private purposes and 
 uses as it elects. That is its landlord affair entirely. The Act of 
 February 15, 1901, permits tenancy of the public land for certain 
 specified private purposes and uses. The Act also permits tenancy of 
 the public land for certain specified public purposes and uses. But, the 
 Act does not, because it cannot, limit the occupancy of the public land 
 for the certain purposes of public use to an occupancy as a tenant. 
 The Act may possibly widen, within the State jurisdiction of election,, 
 the choice of the kind of occupancy of the public land for the certain 
 public purposes and uses. The State, however, has the paramount 
 
45 
 
 right of occupancy for public purposes and uses by virtue of its 
 eminent domain. 
 
 It is doubtful if the State of California, or any other State (no 
 matter by whom the State jurisdiction may be exercised), for a public 
 purpose or use, can constitutionally elect as against the exercise of its 
 eminent domain the contractual acceptance of a terminable tenancy 
 even if it be politely called a "revokable permit." Obviously, for 
 public purposes and uses any private proprietary water appropriation 
 inclusive of its water works and their situs can be condemned entirely 
 irrespective of part of the situs of the water works being privately 
 possessed by virtue of a contract of tenancy. It would not be the 
 terminable tenancy of a landlord's land which would be condemned 
 by eminent domain, but the estate in the land itself, the fee, or a 
 sufficient easement imposed on the fee, to vest the unlimited right of 
 use of the situs of the water works for the public purpose. 
 
 Summary of Title and Current Law of Water Appropriation in 
 California. 
 
 The title and the current law of the flow of the water in the 
 streams on, by, or adjacent to the public land of the United States in 
 California, and in the land in the sovereign jurisdiction of the United 
 States which is in but not of California, may be summarized sub- 
 stantially as follows : 
 
 The title to the right to appropriate and use the flow of the water 
 of streams on, by, or adjacent to the public land in California is in the 
 State of California, and it is held by the State as its sovereign inalien- 
 able property, the title of the State passing to it from the United 
 States by grant in presenti of their Act of Admission of the State into 
 the Union, the United States having received the title from Mexico 
 by cession of the Treaty of Guadalupe Hidalgo. 
 
 The title to the right to appropriate and use the flow of the water 
 of streams which flow in the land of the United States sovereign 
 jurisdiction, within but not of California, is in the United States, and 
 it: is held by virtue of the sovereignty as property entirely at the 
 disposal of Congress, the title passing to the United States directly 
 from Mexico as to streams on the land of Military and Indian reserva- 
 tions which did not pass to California by the Act of Admission, and 
 passing to the United States indirectly from California as to streams 
 on the land of other reservations and parks, by its legislative acts 
 of cession. 
 
^ 46 
 
 The State of California permits any citizen to make proprietary 
 use, for either public or private purposes and uses, of its sovereign 
 property to appropriate and use the water of streams which flow on, 
 by, or adjacent to the public land in CaHfornia, prescribing by munici- 
 pal statutes the conditions precedent to the issuance of its franchise 
 or permit, and making ''use" of the essence of the franchise. 
 
 Congress has made no enactment by virtue of which proprietary 
 use may be made of the flow of water of the streams on land in the 
 Federal Government jurisdiction in, but not of, California. 
 
 The United States is a riparian proprietor of riparian public land 
 in California, having acquired the riparian easements from the State 
 of California, concurrently with their Admission of the State, by its 
 grant in presenti implied from the enactment of the Common Law of 
 England by the first Legislature of California. 
 
 The holder of the State's franchise or permit to appropriate and 
 use for public purposes and uses, the flow of water of a stream in the 
 California jurisdiction, is entitled to the exercise of the State's eminent 
 domain to appropriate from the public land of the United States 
 necessary riparian easements and easements to provide necessary situs 
 for the emplacement of the water works and other w^orks of his appro- 
 priation and use of the water flow. 
 
 The holder of the State's franchise or permit to appropriate and 
 use for certain private purposes and uses, the flow of water of a stream 
 in the California jurisdiction, is entitled to a tenancy of the public 
 land to the extent necessary for the emplacement of the appropriate 
 water works through which to effect his appropriation and use, under 
 the provisions of the Act of Congress of February 15, 1901, prescribing 
 covenants (subject to the municipal law as interpreted by the Courts 
 of California), by the holder to quit tenancy at the will of the Secretary 
 of the Interior, and to make stipulated private uses of the tenancy 
 possession, but not prescribing a covenant of payment of any money 
 rental whatever. 
 
 The holder of the State's franchise or permit to appropriate and 
 use for, either, public purposes and uses, or, certain private purposes 
 and uses, the flow of a stream in the California jurisdiction, is entitled 
 to a tenancy of the sovereign land of the United States, if such tenancy 
 be first found not to be incompatible with public interest, to the extent 
 necessary for the emplacement of the appropriate water works through 
 which appropriation and use would be made, under the provisions of 
 the Act of Congress of February 15, 1901, prescribing contractual 
 covenants (subject to Federal law and Courts), by the holder to quit 
 
47 
 
 tenancy at the will of the Secretary of the Interior, and to make the 
 stipulated uses of the tenancy possession, but not prescribing a 
 covenant of payment of any money rental whatever. 
 
 Acceptance of Incorrect Assumptions as to Title and Current Law of 
 Water Appropriation. 
 
 As a consequence of more or less general acceptance of a number 
 of incorrect assumptions as to the title and the current law, the State 
 of California, during the past five years, has not been in either com- 
 mercial or governmental possession of the State's property right to 
 the use of the flow of the water of the streams. 
 
 The error of the generally accepted meanings of riparian rights 
 and rights of appropriation and use of the flow of the water of streams 
 has been explained and corrected. This error had no harmful effect 
 in California until the Federal Government officials, about five years 
 ago, began what they would probably describe as the administration 
 of the Act of Congress of February 15, 1901, with incorrect assump- 
 tions concerning this Act, to which they have been persistently and 
 pestiferously making additions of more error as their administration 
 continued. 
 
 Concerning this Act of February 15, 1901, Federal Government 
 officials undertaking to apply it in administration have assumed : 
 
 That this Act provides the only mode by which rights of way 
 could be had on the public lands of the United States in California for 
 the water works emplacement necessary for public purposes and uses 
 of the flow of the water of streams. 
 
 Whereas, the current law is, that the State of California has the* 
 sovereign power of eminent domain over the public land in California, 
 and the emplacement of water works, intended to effect public pur- 
 poses and uses of the flow of the water of streams, must proceed by 
 eminent domain of the State and not otherwise. 
 
 II. 
 
 That the "permit to use rights of way through the public lands" 
 which the Act provides should be issued by the Secretary of the 
 Interior is of the essential legal nature of a Federal license of a 
 privilege on the public land. , 
 
48 
 
 Whereas, the fact is, that the "permit" is a landlord's contract with 
 his tenant for the lease of a parcel of public land. 
 
 III. 
 
 That the Act did not provide in its express words all the covenants 
 which Congress intended the "permittee" (really tenant) should be 
 obligated to in consideration of the "permission" (really lease) to 
 occupy public land. 
 
 Whereas, the fact is, that, the Act being a legislative Act of 
 Congress providing the conditions or terms of a disposition of public 
 property, an assumption that there could be any other conditions or 
 terms than those expressly declared in the words of the Act, involves 
 the further assumption that Congress could delegate its legislative 
 function in the Government of the United States by the Act to an 
 executive officer, which would be impossible because unconstitutional. 
 
 IV. 
 
 That the Secretary of the Interior, by virtue of the clause, "author- 
 ized and empowered under general regulations to be fixed by him," in 
 the Act, became thereby invested with the power to prescribe the 
 covenants which the "permittee" (tenant) must obligate himself to 
 in consideration of the "permission" (lease) to occupy pubHc land, 
 which is in effect an assumption that Congress could and did delegate 
 the exercise of its function to the Secretary of the Interior. 
 
 Whereas, the fact is, that no such delegation of its powers by 
 Congress was intended or made by the Act. 
 
 That the Secretary of the Interior was authorized and empowered 
 without express words in the Act so declaring its intention, to impose 
 a covenant to pay a "rate" fixed by the Secretary for every electrical 
 horsepower developed from the use of the flow of the water, as a 
 consideration to be paid by the "permittee" (tenant) for the permis- 
 sion (lease) to occupy public land. 
 
 W^hereas, the fact is, that the Secretary of the Interior has no 
 authority of law to fix rates for anything nor power to enforce their 
 payment to the United States or to anybody. 
 
49 
 
 VI. 
 
 That the withdrawal of public land from present disposal accom- 
 panied with the official designation of the withdrawn public land as 
 "Forest Reserve" or "National Forest," re-established the sovereignty 
 and jurisdiction of the United States over the public land of the Forest 
 Reserve or National Forest as it was before the Act of Admission of 
 California, arid concurrently ousted the sovereignty and municipal 
 jurisdiction of California; and, further, by virtue of the Act of 
 February 15, 1901, authorized and empowered the chief officer of the 
 Forestry Department to impose any additional covenants he elects, to 
 perform which th^ permittee (tenant) must obligate himself in con- 
 sideration of the permission to occupy the public land ; or to make any 
 consideration whatever that he elects, the basis of a finding by him 
 that the allowance of the "permit" (tenancy) would be incompatible 
 with public interest, and therefore not allowable. 
 
 Whereas, the current law is, that irrespective of whether the 
 withdrawal of the public land from present disposal was made directly 
 by Act of Congress, or indirectly by an executive official duly em- 
 powered by Congres^, and irrespective of the new name given the 
 withdrawn public land, or the more or less meritorious purpose of the 
 withdrawal, the sovereignty and municipal jurisdiction of California 
 was not ousted. California became vested with its sovereignty and 
 municipal jurisdiction over the public land by the Act of Admission, 
 and whether the passing or transfer of sovereignty from the United 
 States be described as a cession or as a grant, it was a completely 
 executed passing or transfer as of the date of the Act of Admission. 
 The United States have no constitutional power to impair their Act 
 of cession or grant of sovereignty by an Act of Congress no matter 
 what the purpose of the Act may be.* Suppose a withdrawal of public 
 land from present disposal be lawfully directed by Congress to re- 
 survey it, to re-examine it for any reason, to arrange for a change in 
 the mode of disposal, or for any other reason or purpose Congress may 
 elect or for no reason at all, is it seriously to be contended that the 
 
 * State of Illinois v. III. Cent. R. Co., U. S. 33 Fed. 721. "A grant in its 
 own nature amounts to an extinguishment of the right of the grantor, and im- 
 plies a contract not to reassert that right. A party is therefore always estopped 
 by his own grant." 
 
 * Balderson v. Brady et. al., Idaho Supreme Court, Nov., iQog. "It seems to 
 be intimated that the admission bill was in some way amended by the Act of 
 August 18, 1894, and other amendments to the land laws (28 Stat., 372, 394), but 
 we know of no power or authority whereby the Congress can divest the State of its 
 title to lands that have been previously granted and to which title has vested." 
 
50 
 
 United States sovereignty thereby re-establishes itself and ousts the 
 California jurisdiction? Is the essence of sovereignty over the public 
 land in the name of "Forest Reserve" or "National Forest" tacked 
 onto it? Is the essence of sovereignty over the public land in the 
 fashion of the Mandarin button of a chief forestry official? The fact 
 is that "Forest Reserve" or "National Forest" is still in California 
 proprietary public land of the United States subject to the municipal 
 jurisdiction of the State. It is silly to assume that Congress divested 
 itself of its legislative function and delegated it to a chief officer of the 
 Forestry Department equally with and independently of the Secretary 
 of the Interior. 
 
 VIL 
 
 That the withdrawal of public lands from present disposal by Acts 
 of Congress for the purpose of creating the Yosemite, Sequoia, and 
 General Grant National Parks, completely effected the purpose of 
 Congress and created the National Parks, that is to say, brought the 
 public land withdrawn from disposal from under the sovereign jurisr 
 diction of California and put it under the sovereign jurisdiction of the 
 United States as land dedicated to a Governrtiental purpose of the 
 Federal Government. 
 
 Whereas, the current law establishes the fact, that, despite the 
 new names and the Federal Government purpose, the public lands of 
 these so-called National Parks are still within the sovereignty and 
 municipal jurisdiction of California precisely as if Congress had made 
 no enactment whatever concerning them or reserving them from 
 disposal.* They will continue to be public lands subject to the 
 sovereignty and municipal jurisdiction of California until such time as 
 the Legislature shall have enacted an Act of cession of sovereignty 
 to the United States. The probable reason why such an Act of cession 
 has not been enacted by the California Legislature is that because of 
 the existence, within and surrounded by the withdrawn public land, 
 
 * The condition of Yosemite National Park by virtue of the Act of Con- 
 gress undertaking to create it is not the same as Yellowstone National Park or 
 parks and reservations in North and South Dakota, Montana and Washington. 
 The Yellowstone National Park and the parks and reservations in the States 
 named were withdrawn from the public land before the admission of the re- 
 spective States in which they are situated, and the United States in the respective 
 several Acts of Admission reserved sovereignty over the land of them. That 
 is to say, the land included within them never came under the jurisdiction of the 
 State _ sovereignties. The land of Yosemite National Park was under the sover- 
 eign jurisdiction of California as public land (and private land) for forty years 
 before Congress undertook to create the National Park from it. 
 
51 
 
 of tracts of land owned by citizens of California, the Legislature has 
 not the constitutional power to make the cession of sovereignty. 
 
 Yosemite Valley and Yosemite National Park are not the same. 
 Yosemite Valley, which is entirely within the Yosemite National Park, 
 was owned in fee by the State of California. The Legislature, acting 
 within its constitutional power, made a cession of its sovereignty to 
 the United States. The State has never made a similar Act of cession 
 of sovereignty over the Yosemite National Park to the United States. 
 The City of San Francisco now owning land within this park which it 
 has acquired for municipal purposes, and which it cannot dispose of by 
 sale or gift, it is doubtful if the Yosemite National Park can ever be 
 created as Congress intended. 
 
 VIIL 
 
 That the Secretary of the Interior and the chief officers of the 
 several Departments having supervision over the land of the Federal 
 jurisdiction in reservations and parks, by virtue of the clauses of the 
 Act directing the Secretary to fix "general regulations," and requiring 
 the chief officers to advise the Secretary of the Interior of their find- 
 ings of fact that any particular application for a "permit" (tenancy) 
 is, or is not, "incompatible with public interest," became respectively 
 invested with legal power to enter into trading contracts and agree- 
 ments on behalf of the United States with applicants for "permits to 
 use rights of way through" (tenancies of) the public land, and (or) 
 of land within the Federal jurisdiction. 
 
 Whereas, the intent and full legal measure of effect of the law is, 
 that the Secretary of the Interior and the chief officers of the several 
 Departments, became thereby respectively charged with certain spe- 
 cific ministerial duties, and the former with one specific quasi-judicial 
 • power, and with absolutely no other duties or power whatever, as 
 follows : 
 
 The Secretary of the Interior with the ministerial duties, (i) Of 
 fixing a code of general rules and forms which applicants for "permits" 
 (tenancies) would be required to comply with in order that he (the 
 Secretary) should thereby be fully informed as to the legal qualifica- 
 tion of the applicants, and as to the pertinent facts of what they 
 respectively applied for on the public or other lands : And (2) Of 
 executing pro forma (by instruments of permit or lease) with all 
 legally qualified applicants the contracts of tenancy imposing on the 
 "permittees" (tenants) the two particular covenants (and no other 
 
52 
 
 covenants whatever) specified by the Act of Congress as the obHga- 
 tions "permittees" (tenants) should assume. 
 
 The chief officers of the several Departments with the ministerial 
 duty of advising pro forma the Secretary of the Interior of a single 
 fact of their finding, to wit: that the particular ''permit" (tenancy) 
 applied for is "Approved (or Disapproved) as compatible (or incom- 
 patible) with public interest," which merely means that the "permis- 
 sion" (tenancy) will not (or will) interfere with the proper conduct 
 of the Federal purpose of its sovereignty of the land of the reservation 
 or park. 
 
 The Secretary of the Interior with the quasi-judicial power of 
 declaring forfeitures of "permits" (tenancies) for actual breach of 
 their covenants, but for no other reason whatever. 
 
 Consequences to California of Erroneous Assumptions of Federal 
 
 °'*'"''- Sao Map, Page 69. 
 
 The cumulated effect on California of these erroneous assumptions 
 of Federal officials has become a thing visible on the map of the State. 
 
 Within the "National Forest," in its present stage of growth 
 one-third of the State, indicated by the shading on the map, are 
 situated nearly all of the streams of which the water flow is commer- 
 cially available for either public or private purposes and uses. 
 Exclusive of use already made, it may be said that there will ultimately 
 be had in California from the flow of these streams not less than 
 3,000,000 electric horsepower, the irrigation of more than 2r,500,ooo 
 acres of land, and the domestic water supply of at least 10,000,000 
 people, all of this not for a day or a year but forever as the word is 
 used in describing the affairs of men. 
 
 Within the exterior boundaries of these areas of so-called National 
 Forest there are at a rough estimate more than 3,500,000 acres of land 
 in private ownership. There is a present resident population of 75,000 
 citizens of California. They conduct three-fourths of the gold mining 
 industry in the State, a large part of the copper and other mining, all 
 of the pine lumbering and manufacture, and a notable amount of 
 agriculture and horticulture. The region of the National Forest is 
 altogether not only a land offering unusual opportunities for profit in 
 return for effort, but is a land attractive and* inspiring to the people 
 who come into it simply to see and live, beyond anything our country 
 offers elsewhere. 
 
53 
 
54 
 
 Given the free, opportunity of the time in California before there 
 came over it the "taboo"* of the Mandarin button of the Federal 
 Forester, there would ultimately be a continuous resident population 
 of a half million where there are now only a seventh of this number, 
 and to the other people of these United States, this land of the National 
 Forest in California would be as Switzerland and Tyrol are to the 
 other peoples of Europe — their rest-land and their play-land. 
 
 But — consequent on the cumulated effect of these erroneous 
 assumptions of Federal officials there has been subtracted from present 
 "free opportunity" within the National Forest in California all of the 
 "free opportunity" of the use of the flow of the water of the streams, 
 besides other subtractions of "free opportunity" which will not be 
 referred to in this discussion. 
 
 Within the National Forest, the eminent domain and jurisdiction 
 of California has not been recognized as carrying with it the right to 
 appropriate easements (rights of way) for the emplacement of the 
 water works necessary for public purposes and uses of the flow of 
 the water of the streams. Holders of the State's franchise or permit 
 to appropriate and use water for public purposes have been placed on 
 the same footing with holders of the State's franchise or permit to 
 appropriate water for private purposes and uses. 
 
 "Permission" (tenancy) for right of way purposes in the National 
 Forest has been treated as if it was the license of a more or less 
 improper privilege. Applicants, whether qualified with intentions to 
 make public use of the "permission" (tenancy) or to make private use 
 of it, have had their applications arbitrarily held up from action 
 indefinitely, have had them allowed and after allowance arbitrarily 
 revoked (their forfeiture declared), and have had their bona fides 
 arbitrarily questioned and impugned. The actual procedure of con- 
 sideration of applications for "permits" in a number of instances has 
 been suggestive of the procedure accompanying the issue of licenses 
 by municipal police authorities. 
 
 The Secretary of the Interior has repeatedly required of applicants 
 for "permits" (tenancies), whether qualified with intentions to make 
 public use of the "permission" (tenancy) or to make private use of it, 
 that they should obligate themselves to covenants of his imposition in 
 addition to the covenants prescribed by the Act of Congress, particu- 
 larly to covenants requiring payments of money consideration, either, 
 
 * "Taboo." Def. n. Prohibition of use of, or approach to, water, under pain 
 of being deprived of it. Originally a religious interdict in the Spice Isles, v. t. To 
 put under taboo. (Written also tabu.) 
 
55 
 
 or both, a lump sum as a fee at the time of allowance, or an annual 
 "rate" to be paid per unit on the estimated electric horsepower develop- 
 ment from the use of the flow of the water. 
 
 A ''rate" imposed by the Secretary of the Interior on electric 
 power used in public service, and collected, and now being collected, 
 $1.50 per electrical horsepower per year, is nicely adjusted to the 
 load-carrying ability of the infant industry — just about equaling the 
 current operation cost of producing the power — and obviously fur- 
 thers the great National purpose of "Conservation of the Natural 
 Resources" in California by compensating in that State the cost of 
 production of electric power from water power with the cost of pro- 
 duction of electric power from petroleum. 
 
 The chief officer of at least one Federal Department has required 
 of applicants whose applications were referred to his Department, that 
 before his approval as "not incompatible with public interest," the 
 applicants should obligate themselves by covenants of his imposition 
 as well as by covenants imposed by the Secretary of the Interior and 
 covenants which are statutory by the Act of Congress. Particularly 
 have these covenants imposed by chief officers of Departments been 
 covenants compelling money payments by the applicants for alleged 
 damages to the public land, or for alleged uses of the public land, — the 
 chief officer of the Department being the sole judge of the damage and 
 service alleged. 
 
 So burdened with Federal Bureau red tape procedure — with per- 
 missions refused — with permissions revoked — with enormous unpro- 
 ductive expense charges — with great wastes of time which consume 
 the financial opportunities of new undertakings — with paternal "regu- 
 lations" of every detail of applicants' undertakings — with childish rules 
 for business — with uncertainties as to the temper of Federal officials 
 and with uncertainties of their uncertain law, — has become the appro- 
 priation of the water flow of the streams in the region of the National 
 Forest in California, that appropriation intended for public purposes 
 and uses is practically suspended where appropriators must have right 
 of way easements on the public land of the National Forest, and only 
 appropriations intended for private purposes and uses by large, inde- 
 pendently financed corporations able to buy a clear way through 
 official obstacles and seasoned into indifference to official waste of 
 time, are being undertaken. 
 
56 
 
 The President and Secretary Ballinger Influenced by Erroneous 
 Assumptions. 
 
 The President and Secretary BalHnger seem to be acting under 
 the suggestion of all of the erroneous assumptions which have mis- 
 directed the administration of the Act of Congresses of February 15, 
 1901, except the particular assumptions that the Secretary of the 
 Interior and chief officers of Departments have been severally dele- 
 gated by that Act the constitutional function of Congress to prescribe 
 the covenants of the "permits" (tenancies) on the public and other 
 lands for rights of way purposes. The President and Secretary 
 Ballinger do not question the economic and Governmental soundness 
 of the policy of imposing the particular covenants and conditions which 
 have already been imposed by the Secretary of the Interior and chief 
 officers of Departments as consideration for "permits" (tenancies) of 
 the public land for right of way purposes. They would, they say, if 
 so empowered by law, impose even more onerous covenants addi- 
 tional."^' They simply affirm that there has been no authority of law 
 for the imposition of any of these covienants or conditions (which 
 included payments of charges or "rates") by Secretaries of the Interior 
 and chief officers of Departments. The President has therefore asked 
 Congress to create the authority of law by enacting the covenants or 
 conditions i^ito the statutes so that executive officials may lawfully 
 impose them on "permitees" (tenants) of the public land for right of 
 way purposes. The public at large, misled by the appeals to senti- 
 ment of the advertising exploitation given to the unlawful acts of 
 officials of former President Roosevelt's administration into believing 
 those acts regular and lawful because they seemed well intended, and 
 not given to making fine distinctions, does not understand why any 
 new enactment by Congress is necessary, and is suspicious through 
 suggestion of the motives of those who propose any legislation. 
 
 * Annual Report of Secretary of the Interior Ballinger. Dec., 1909. 
 
 "I would therefore advise that Congress be asked to enact a measure that will 
 authorize the classification of all lands capable of being used for water power 
 development, and to direct their disposal, through this department, under sub- 
 stantially the following conditions : 
 
 "1. That the title to such lands be reserved in the Federal Government, and 
 only an easement granted for the purpose of developing and transmitting electrical 
 power for private and public use, and for the storage of waters for power, irri- 
 gation, and other uses. 
 
 "2. That such easement be granted for a limited period, * * * and the 
 option of renewal. * * * " 
 
 It would seem that Secretary Ballinger means to lease where he writes to 
 grant. There are decisions of Supreme Courts to the effect that by the use of the 
 
57 
 
 Real Difference Between "Conservation" Policies Relating to Water 
 Appropriation Under Federal Control. 
 
 Stripped clear of the acrimonious, motive-impugning discussion, 
 which, expending itself in personalities, has suppressed and concealed 
 the real difference at issue, the real difference at issue between Presi- 
 dent Taft, Secretary Ballinger and their supporters, on one side, and a 
 very large number of the people led and misled by the late chief officer 
 of the Forestry Department, Mr. Pinchot, on the other side, is that 
 the former maintain that a "permittee" (tenant) on the public land is 
 entitled by law to have the covenants or conditions of his "permit" 
 (tenancy) predetermined precisely and fixed in an Act of Congress, 
 while the latter maintain that the administrative officers should not be 
 interfered with by Congress, because they already put the same cov- 
 enants and conditions up to "permittees" (tenants) without the aid of 
 Congress in the matter. 
 
 It is a difference paralleled by the difference between a Court, 
 which has found the accused guilty as charged, but wants to give him 
 benefit of clergy before the Sheriff hangs him, and a howling mob 
 without the court, which, too, having found the accused guilty as 
 charged, would have the Sheriff do the hanging forthwith without any 
 benefit of Congress. fiiUlcroft LiblteT 
 
 word grant in an instrument of conveyance of real property (an easement is an 
 estate in real property) the instrument conveys all the estate of the grantee, and 
 other decisions of Supreme Courts that covenants in grants which tend to defeat 
 the instruments as grants are null and void. 
 
 "3. That entry shall be accompanied by plans and specifications covering the 
 works to be installed, and covering the maximum horsepower capable of develop- 
 ment at such site ; also that a substantial entry fee be paid to show good faith, and 
 that a transfer to the United States of the necessary water rights to permit of the 
 estimated power development to be made." 
 
 Secretary Ballinger's misapprehension of the elements of a water right shows 
 very plainly here. 
 
 "4. That the construction period allowed entry-men for the development 
 of at least 25 per cent of such power shall not extend beyond four. years, or such 
 further time as may be granted by the Secretary of the Interior upon a proper 
 showing. 
 
 "5. That a moderate charge shall be made on the capital invested or upon the 
 gross earnings of the project for the first ten years of operation, adjusted at each 
 subsequent ten-year period, and equitably determined by appraisement. 
 
 "6. That all rights and easements shall be forfeitable for failure to make 
 development within the limitations imposed, or upon entry into any contract or 
 combination to charge or fix rates beyond a reasonable profit on the investment 
 or combination to limit the supply of electrical current, or failure to operate the 
 plant; and 
 
 "7. That all books and accounts shall always be subject to the inspection of 
 the department." 
 
58 
 
 As for the "accused found guilty as charged," who is not appar- 
 ently consulted over the mode of precedence to his near end by either 
 Court or mob, who or what is he? 
 
 Not the appropriator of water for public purposes or uses, not the 
 great soulless public service corporations, not the portentious preda- 
 tory "water power trust" — not these undesirable citizens, or any of 
 them, that Court and mob alike have been fooled into thinking in their 
 Sheriff's custody primed for the hanging. They are clear out of it, 
 because the right to appropriate and use the flow of the water of the 
 streams is sovereign property of the State, and the State procures for 
 its sovereign property, by virtue of its eminent domain, the easements 
 for rights of way on the public land for emplacement of waterworks. 
 
 But the appropriator of water for private purposes and uses 
 is "the accused found guilty as charged" — the gold miner, the lumber- 
 man, the cattleman, the farmer — not the "big fellow" but the "little 
 fellow" — the "ultimate consumer." This is he who President Taft 
 and Secretary Ballinger and Mr. Pinchot and Congress and the people 
 will catch with the great chain net of public opinion and the law 
 which they have been dragging at cross purposes for the honor of 
 landing the catch — this is he, "the ultimate consumer." Was there 
 not a reward offered for the discovery of the "ultimate consumer"? 
 There should be a reward for saving him from being caught now that 
 he is discovered. 
 
 An Exhibit of Federal Control of Water Appropriation. 
 
 It has been recently suggested by a United States Senator in a 
 published interview, that although California undoubtedly owned 
 the right to use the water of the streams, it was necessary in the 
 best interest of California for the Federal Government to control the 
 use, as it would require a great many years of Federal education before 
 California would know how to control its own property properly. Per- 
 haps the Senator knows — but, how does he happen to know? Surely 
 not by the control exhibits already made by Secretaries of the In- 
 terior and chief officers of departments. 
 
 The control undertaken by them over the use of the water of 
 Lake Tahoe and the Truckee River, an interstate lake and river, as 
 both are part in California and part in Nevada, is an exhibit which 
 has been discussed in the newspapers and magazines without inform- 
 ing anyone what it really was. The map herewith, and the sketch 
 cross section profile with it, are intended to illustrate the explanation 
 of this exhibit of Federal control of the use of water. 
 
 Soo Kap, Page 68. 
 
59 
 
 ■ ^^f>t ) 
 
 '4'^5£BMV 
 
60 
 
 The Truckee River naturally discharges Lake Tahoe in Cali- 
 fornia and after 60 miles of flow in California enters Nevada, dis- 
 charging itself a hundred miles inside of Nevada into Pyramid Lake. 
 The United States has no riparian proprietorship whatever along the 
 Truckee River in California, there being no public land touching 
 the river, and has only a minor fraction of the riparian frontage from 
 public land in Nevada. The Federal Government officials thus appear 
 as basing their right of invasion of the two States on a claim of 
 direct control of the water flow by virtue of ownership of it, and not 
 through ownership of land, by the United States. 
 
 Between Lake Tahoe and the California boundary the Truckee 
 River water falls very uniformly through its course a total of 2000 
 feet. Part of this fall, altogether about 700 feet, is used by means of 
 five electric power generating stations, the power produced being 
 consumed in public service, a little locally, and the larger part in 
 Nevada at Reno, Virginia City, Carson City and Yerington. None 
 of the river water is consumed in California, all of it flowing by the 
 river into Nevada after passing the water wheels. 
 
 The United States Reclamation Department has diverted part 
 of the Truckee River water in Nevada and conducting it by a canal 
 has distributed it for irrigation over lands in the sink region (ancient 
 dried up lake bed) of Carson River, for which the Carson River did 
 not by itself provide a sufficient irrigation water supply. 
 
 About eighteen months ago the U. S. Reclamation Department 
 and the public service corporation operating the power stations seem 
 to have simultaneously discovered, the former that it wanted more 
 water from the Truckee River for its irrigation service, and the lat- 
 ter that it wanted more power from the fall of the water of Truckee 
 River together with a cheaper and more certain opportunity to get 
 it than by building more power stations along the Truckee River. 
 
 Thereupon, a contract was entered into between the United 
 States by the Secretary of the Interior and several chiefs of Depart- 
 ments (assuming authority under the Act of Feb. 15, 1901), and the 
 public service corporation. The contract is like a diplomatic treaty 
 between high contracting parties in that one can read it without find- 
 ing out from it what any party expects to get — really get — under its 
 covenants. 
 
 Disregarding the formal words and loosely expressed covenants, 
 and going instead to the heart of the matter, this is what the public 
 service corporation expects to get under it : 
 
.61 
 
 (i) The right to tunnel through the mountain rim on the Nevada 
 side of Lake Tahoe, by means of which it will be able to use all of the 
 water which would flow from the lake in a single fall of 2000 feet, 
 thereby trebling the quantity of its electric horsepower output and 
 having all the economy of operation of a single power station as 
 against seven or eight along Truckee River. 
 
 (2) The power of the Federal Government to close the natural 
 outlet of Lake Tahoe into the Truckee River so that the water will 
 have to be discharged through the power company tunnel. 
 
 And this is what the U. S. Reclamation Department would get: 
 
 (i) The water of Lake Tahoe discharged from the power sta- 
 tion into Carson River instead of into Truckee River — the same water 
 but not any more water — which the U. S. Reclamation Department 
 would then conduct to the same land which it is now irrigating by 
 means of a new canal from the Carson River instead of the already 
 constructed canal from Truckee River. 
 
 The preceding is the practical businsss of the contract. Consider 
 the contract now as an instrument of Conservation by Federal control 
 of the use of the water flow of Truckee River, keeping in mind that 
 the chief officers of Federal Departments disregarding the State 
 boundaries in providing for the diversion of the flow of Truckee 
 River through California into Nevada, must assume that they could 
 just as well have provided for the diversion the other way, from 
 Nevada into California, a plan of diversion, by the way, which was 
 proposed by engineers forty years ago to supply San Francisco with 
 water. 
 
 Referring to the map and cross section profile sketch, it will be 
 noted that diverting Truckee River water from Lake Tahoe by means 
 of a tunnel through the mountain rim on the California side, the same 
 water could be used through three falls, each of 2000 feet, to produce 
 electric power, and the water would then be in a region in California 
 in which the land has a productiveness under irrigation double that 
 of the land in the Carson sink in Nevada — or the water could be 
 used for the jlomestic supply of San Francisco in place of irrigation. 
 
 If "conservation" of the use of water means anything but a mean- 
 ingless political "war-cry," it means getting all of the use out of 
 the flow of the water that it can be made to give. Obviously in this 
 particular exhibit the Federal control has only provided for getting 
 one-third of the possible electric power and not much more than 
 
{^2 
 
 half the possible irrigation service. Apprentice work may be the 
 reason for such a result but the '*baby act" plea will not excuse it. 
 Would the State control of the use of the water flow of Truckee 
 River show such a poor "conservation" result? Hardly — but Cali- 
 fornia has never assumed that it could lawfully divert the water of 
 Truckee River from Nevada, nor has Nevada ever assumed that it 
 could lawfully divert the water of Truckee from its natural flow 
 through California directly into Nevada by a tunnel in the Nevada 
 jurisdiction. The Supreme Court of the United States has invariably 
 ruled agaist such doctrine. It is also quite beyond the legal power 
 of a public service corporation, or the legal power of any citizen, 
 by a contract with anybody, to take outside of its jurisdiction, the 
 sovereign property of California in the use of the flow of the Truckee 
 River within its own jurisdiction. The contract after all is only an 
 exhibit of a carelessness of official action by chief officers of Federal 
 Departments which amounts to indifference to the current law of the 
 rights of property. It has not afifected the property rights which 
 it was intended to dispose of any more than if the paper it is engrossed 
 on had been left blank as it came from the paper mill. 
 
 Another Exhibit of Federal Control of Water Appropriation. • 
 
 Another notable instance of the ineffectiveness of the Federal 
 control of the use of the water of streams in California to promote 
 economy of cost to the users of the water is exhibited by the contract 
 which the City of San Francisco was compelled to accept from the 
 Secretary of the Interior (Garfield) before he would allow the "per- 
 mit" to the city to appropriate the water of the Tuolumne River and 
 to use land in Hetch Hetchy Valley for a supply reservoir. 
 
 Hetch Hetchy Valley is in the so-called Yosemite National Park, 
 in fact its existence there was the reason Congress had for with-, 
 drawing the public land for the creation of the Yosemite National 
 Park. Permission was refused San Francisco when it first applied 
 for a "permit," the ground of refusal given by Secretary Hitchcock 
 being that the conversion of the Hetch Hetchy Valley into a city 
 water supply reservoir would destroy the natural feature and scenic 
 beauty which Congress intended to preserve for all the people of the 
 Nation. It is quite true that the destruction of the natural feature 
 and scenic beauty of the valley would disappear with its conversion 
 into a reservoir. Still, although there are other adequate and lower 
 costing water supplies than that of Tuolumne River available, the 
 
63 
 
 city is clearly within its rights in electing the Tuolumne River, and 
 a second application was made for a "permit." 
 
 On this application Secretary of the Interior Garfield allowed 
 a "permit" (tenancy) requiring the ratification by the city of a con- 
 tract which obligates the city as follows: 
 
 (1) The city is to buy all lands in .the Yosemite National Park then in pri- 
 vate ownership and convey them to the United States. 
 
 (2) The city is to accept its tenancy under the jurisdiction of the Federal 
 Government in every respect surrendering so far as its tenancy is concerned every 
 legal right under the municipal laws of California. 
 
 (3) The city is to build a reservoir known as Lake Eleanor Reservoir in 
 another part of the Park before it builds a reservoir in Hetch Hetchy Valley. 
 
 (4) The city is to build only such dams and other structures as the Secre- 
 tary of the Interior shall first approve, and shall build them to their ultimate 
 magnitude in the first construction regardless of whether or not the city needs 
 their full service or does not need it for many years. 
 
 (5) The city is to agree to build no other reservoirs in the Tuolumne River 
 watershed except the two specified. 
 
 (6) The city is not to take any water from the watershed except the water 
 required by the actual consumption of the city from time to time. 
 
 (7) The city is to sell any surplus water collected by the reservoirs to two 
 irrigation districts whenever the districts ask for it at the actual cost of storage 
 of the water, but if the irrigation districts do not ask for the water the city must 
 waste it. 
 
 (8) The city may develop electric power from the fall of the water for its 
 municipal uses but may not sell any power to private persons or corporations 
 in the city or outside, except, that in case there is a surplus over municipal uses, 
 the inhabitants of the irrigation districts may ask for the surplus and be entitled 
 to be supplied with it at the cost of producing the surplus, which cost of producing 
 ibe surplus electric power from water power is just nothing at all. If the irriga- 
 tion district inhabitants do not ask for the surplus electric power the city cove- 
 nants to waste it. 
 
 (9) The city is to waive its constitutional right to litigate differences which 
 may arise over water measurements and charges and over the price of electric 
 power, with the irrigation districts or their inhabitants, and in lieu thereof agrees 
 to accept without recourse the decisions of the Secretary of the Interior as to 
 measurements and charges. 
 
 (10) The city is to quit and surrender its "permit" (tenancy) whenever 
 the Secretary of the Interior in his discretion revokes the permit. 
 
 In consideration of the city's covenants which have been briefly 
 
 stated, the city is to have under its "permit" the following, viz : 
 
 (1) The privilege of building Hetch Hetchy reservoir after the city was fully 
 using the water supply which Lake Eleanor reservoir provided.* 
 
 ♦Since the preceding was in type Secretary Ballinger (February 28, 1910) 
 has issued an order requiring San Francisco City officials to show cause why he 
 should not "revoke" this privilege in a futurity event — the right to build Hetch 
 Hetchy reservoir after fully using Lake Eleanor reservoir site. The politely ex- 
 pressed reason for the order is an alleged misrepresentation of facts to Secretary 
 Garfield by official representatives of the city. The connection of alleged cause, 
 first effect, and possible penalty is not very clear. The incident simply adds 
 another exhibit of the inherent ineffectiveness involved in the Federal control of the 
 use of water. 
 
64 
 
 Considering that the reason the city had for asking the ''permit" 
 to make a reservoir use of Hetch Hetchy Valley was the relatively 
 low cost of construction, ($1,000,000), to the quantity of water which 
 it would hold, the privilege of building the reservoir after building 
 and using to its limit another reservoir which would cost $2,000,000 
 and defer the building of the Hetch Hetchy reservoir for at least 
 forty years, seems a ridiculously trifling consideration in return 
 for the city's obligations under the above ten covenants. The first 
 one, the obligation to purchase the privately owned lands within 
 the park, would cost the city more than $500,000, and the cost of pur- 
 chase of private property rights to enable the city to use the Lake 
 Eleanor reservoir site is put at $1,000,000 by their owners. 
 
 The Act of Congress of February 15, 1901, does not require of 
 a "permittee" the obligation of any covenants of the nature of the 
 above, but what could the city do but accept them? The land was 
 assumed to be in the sovereign Federal jurisdiction as a National Park 
 which would give the United States jurisdiction over the appropria- 
 tion and use of the water flow of the streams as well as over the 
 land. And, anyway, even if the assumption was incorrect, soldiers 
 of the United States Army were in possession, and, as a city official 
 who once visited the Valley without a "permit" said, when it was 
 suggested to him that the military had no right to order him about, 
 "Of course," he said, "I know that. I know that the soldiers have 
 no right to order me around. But, what are you going to do about 
 it when a husky khaki-clad infantryman says to you, 'Keep moving 
 that way,' and lowers his bayonet to 'charge,' by way of punctua- 
 tion, when you happen to look around to see if he's following you 
 very close? What are you going to do about it then? You're not 
 going to stop to argue about the rights of it. You're going to think 
 fast about what that bayonet will do to you if you let it catch up, 
 and then you're going to 'move on' and 'move off,' that's what you're 
 going to do about it." 
 
 The assumption that the land of the Yosemite National Park 
 was land in the sovereign jurisdiction of the United States and not 
 public land under the municipal jurisdiction of California, has been 
 made a very costly assumption through loss of years of time and con- 
 tingent expense to San Francisco. For this loss to the city the law 
 officers of the city are entirely responsible, it being part of their busi- 
 ness to inquire and ascertain the nature of the titles to property 
 which the city contemplated acquiring. Lost time and lost contin- 
 gent expense are total losses. Nothing can be recovered from them. 
 
65 
 
 The loss of $1,000,000 in extra construction cost of the Lake Eleanor 
 reservoir over the Hetch Hetchy reservoir, and the other losses which 
 would be consequent on carrying out the other covenants of the 
 Garfield contract can be avoided. There is nothing but her own indis- 
 position and the indiscretion of her officials which can stop San 
 Francisco from taking Hetch Hetchy Valley for its municipal water 
 supply system without obligation except to the municipal law of 
 California. 
 
 In Conclusion. 
 
 In review of the foregoing, it would seem, that with the right 
 to appropriate and use the water in the streams which flow on, by, 
 or adjacent to public land, the sovereign property of California, and 
 with the jurisdiction of the State's eminent domain over the public 
 lands with which to procure easements of rights of way for water 
 works emplacement for public purposes and uses, that the imposition, 
 through erroneous assumptions, of the burdens of a Federal juris- 
 diction over either water use or rights of way easements for water 
 works on the public lands in California should be impossible. But, 
 as Brer Jasper preaches, "De sun do move." Anything is possible 
 in California. Californians are a good deal of a laissez faire sort of 
 people. The situation recalls an incident of the Lincoln Birthday 
 Memorial Address made by President Roosevelt in 1905. His sub- 
 ject was the uplifting of the negro. Someone interrupted, "What 
 will you do if the negro refuses to be helped?" The answer flashed 
 back by the President, 'Tf a man stumbles, help him. If he lies down 
 you can do nothing for him." So if California people lie down — what's 
 the use? 
 
PRESS OF 
 
 pi;Uli;i0 Sc 19an ®rDpn (Eo. 
 
 509-515 howard st. 
 San Francisco, Cal. 
 
 I