*1 APPALACHIAN ELECTRIC UNITED STATES POWER CO. Arguеd 16,
No. 12. October 1940. Decided December *3 General with Biddle, Solicitor whom Messrs. John W. Aiken, Siegel, Melvin H. Gardner, W. William Warner Jr., Robinson, Jr., David W.° Youngman, Gregory and Willard W. were on the Hankin, brief, Gatchell States. the United *8 Jackson, Henry whom Messrs. A. with Raymond
Mr. T. Horn, Micou, Wendell W. Mosle, Fraser M. Creswell M. Jr., Abbot were on Belcher, John L. Forbes, M. W. for respondent. the brief,
CD oo *15 leave of Mr. Abram P. By special Court, Staples^ - brief and Attorney participated filed a General, on behalf of the argument 636) State (see oral U. as amicus curiae. Virginia, *17 briefs of amici curiae were filed on By leave of Court, Kentucky, by Meredith, Hubert of the States of behalf Holifield, and M. B. Attor- Attorney Assistant General, Meadows, by West W. ney General; Virginia, Clarence Martin, Attorney E. Attor- General; Wisconsin, by John Attorney ney General, Boardman, Newell S. Assistant General, Kanneberg. Adolph Mr.
A joint Alabama, by brief was filed :(cid:127) fdr Thomas Law son, Attorney by Conway, Joe Attor General; Arizona, Warren, ney General; California, by Attorney Earl Gen eral; Colorado, by Byron Rogers, Attorney G. General;. Pallotti, by Francis A. Attorney Connecticut, General; by Morford, Attorney James R. Delaware, General; Flor Gibbs, by Couper Attorney George General; ida, Idaho, by General; W. E. Taylor, Attorney Illinois, by /. John Rankin, Iowa, Cassidy, Attorney General; by John M. Attorney Kansas, by Jay Attorney General; Parker, General; by Meredith, Attorney Gen Kentucky, Hubert Holifield, and M. B. eral, Attorney General; Assistant. Louisiana, by Eugene Stanley, Attorney General; Maine, Burkett, E. by Attorney Franz General ¡'Maryland,, by Walsh, Attorney General; William C. by Massachusetts, Dever, Attorney General; A. Paul Michigan, Thomas by Read, Attorney General; Minnesota, J. A. by A.. Bwm- Attorney General; Rice, quist, Mississippi, by Greek L. Missouri, McKittrick, Attorney General; by Roy Attor Johnson, ney by Walter General; Nebraska, R. Attorney Nevada, Mashburn, General; by Gray Attórney General; by Cheney, Thomas P. Attorney New Hampshire, Gen Jersey, by Wilentz, David T: eral; Attorney New Gen Sedillo, eral; Mexico, Attorney General; New Filo M. York, by Jr., Bennett, Attorney New John J. General, Henry Epstein, General; Carolina, Solicitor 'North General; by Harry McMullan, Attorney Dakota, North *18 Strutz, Attorney Alvin by by C. General; Ohio, Thomas Herbert, Attorney J. General; Oregon, by I. H. Van Winkle, Attorney T. General; by Claude Pennsylvania, Reno, Attorney General; Island, by Rhode Louis V. Jackvony, Attorney South Leo General; Dakota, by A. Temmey, Attorney General; Tennessee, Roy H. by Beeler, Attorney by Joseph Chez, General; Utah, Attor ney General; by Jones, Attorney Lawrence C. Vermont, General; Virginia, by Abram P. Staples, Attorney Gen Washington, by eral; Attorney Smith Troy, General; by T. Wyoming, Ewing Attorney General— Kerr, setting forth position regard States powers relative of the States and the- States over United navigable and non-navigable waters. Reed delivered opinion
Mr. Justice Court.
This case involves the scope of the federal commerce power in relation to in licenses, required by conditions the Federal Powеr Commission, for the construction of hydroelectric in navigable dams rivers of To reach this issue requires, a preliminarily, de- States. cision as to the navigability of the New water- River, a flowing through course Virginia and Virginia. West court district and the circuit appeals court of both have ¡is held that the New River not navigable, and that enjoin United States cannot the respondent from con- putting into operation hydroelectric structing just dam situated the river above Virginia. Radford, Sections and 10 of the Rivers and Harbors Act of 1899 make it -unlawful to construct a in any naviga- dam water of ble the United States without the consent -of- Congress.1 By the Federal Water Power Act of 1920,2 401, 1 30 2 33 U. S. C. 403. Stat. §§ by The Act amended (1935), was 49 Stat. 838 Stat. seq., et Supp. V, Title C. 791a which known U. S. § it^became Act. as Federal Power however, Congress Power Commission a Federal created authority with of such'dams' license the construction Act pro- upon specified conditions. 23'of Section in a intending vided that a dam persons to construct nonnavigable may of intention stream file a declaration Com-, with the If investigation Commission. after foreign mission finds that interstate or interests of commerce will not be permission shall affected, granted the construction. Otherwise construction cannot forward without go a license. *19 initiated, project jay respond Radford Dam was predecessor, the New River Com Development
ent’s which filed of intention the pany, with declaration its. 25, Power Commission on June 1925. The Federal Harry a from requested report Tay Commission General of the Engineers Department. then Chief of War lor, reported navigable, He that5the river was and also first from the if not properly while the flow dam, that water effect navigation could have an adverse on regulated, stages (of in the during low water Kanawha Rivet which of the principal tributaries), New was one such pos the refusing effect would not warrant adverse a'license sible construct the dam if by to. control the were maintained United States. On review at request, the Commission’s Taylor rendered a General second report, con however, the New River its cluding present that condition navigable navigation and that not on the was Kanawha adversely by.the be affected proposed not power would 2, March the 1926, On development. Commission held declaration; only the hearing on the evidence then Taylor’s General report.. was second submitted (cid:127) Appalachian the Electric Respondent, Power Com-: assignment an took pany, intention declaration August 30, days and several later on filed an 1926, "apply for a on the suggestion cation license Commission’s that this expedite would matters and could withdrawii if developed required. later that was no license it federal” In engineer Department the of the War district October, the hearing 1, held a at Radford. On June public 1927, finding Commission made a that the New River was not “navigable within the the § definition 3 of waters” Federal Act 23§ Water Power of 1920 but that (under Act) affect the. project would interests of foreign July interstate and commerce. 1, 1927,. On tendered to respondent a form standard Commission license, respondent which in April, refused, 1928, prin cipally on the ground especially the conditions — those concerning rates, accounts and acquisi eventual In navigation. tion —were unrelated to 1930, February, respondent project reiterated that its was not within the Commission’s, but jurisdiction, nevertheless offered to ac cept containing a- license3 “minor-part” only such condi protect tions as would interests of United States navigation. In Attorney September, Géneral Mitchell advised the Commission it could properly 4; such a minor-part question issue license submitted Commission had stated that the New River was neither navigated nor On fact. November Commission “declined to action take on ap or plication adverse,” favorable on the ground that a *20 adjudication court was After desirable. the establish ment of' the Commission as an independent it agency,5 hearing another February, held 1931; April it de nied the application a minor-part license, directed the respondent that tendered a standard form license the Act, under and ordered it not to proceed without license, minority a A of the such Commission then 3 § 10 (i). 4 Op. 36 A. G. 355. officers, Originally consisted of three cabinet ex officio: the Sec it. Agriculture. By Interior, War, retaries and 46 Stat. 797 it was reorganized independent with into an Commission five The members. 22, began new Commission to function on December 1930. finding favored a that the New navigable; River was the thought that however, question was for the majority, jurisdiction the courts and that Commission’s prop was erly 23 of the upon § based Federal Water Power Act. the respondent
On 8, brought June an 1931, action against the Commission remove a cloud on title its and interference with restrain the use of its property. This jurisdictional case was dismissed for reasons.6 While it was on October the with- 12, 1932, pending, Commission out resolution adopted River, that New from notice the mouth Creek, Virginia, north, of Wilson was navigable. began
The respondent construction on work the dam about On' 1, May June States injunction against filed this bill for an the construction or maintenance of the dam than proposed otherwise under a from the Federal Power license Commission, mandatory in the alternative a It order removal. al- leged that the New River is navigable; that the dam an would constitute obstruction to navigation and would navigable impаir capacity waters of the United on the States Kanawha New, and Ohio Rivers; Commission had found the dam would affect or foreign commerce; interests of interstate and that construction its therefore violated both the Rivers and Harbors Act Federal Water Power Respondent Act. denied these and also set allegations, a number separate defenses based on forth the as- sumption nonnavigable. the New River was forty-first paragraphs fortieth and how- answer, forth on ever, set defenses relied even respondent navigable. if river were held The substance of these (1) that of any was conditions federal license must Smith, Appalachian Electric Power Co. 2d 451, F. cert. de nied, 291 U. S. *21 ca- navigable strictly protection
be the the limited to (2) that the the and pacity States; waters of license minor-part the grant the refusal to Commission’s unlawful, and that only containing conditions was such any the Commission’s upon relief should conditioned defenses granting respondent By a license. these such respondent the of an adverse put question event —in conditions validity of the holding navigability on —the form license of the Act the standard carried over into and even- accounts, operation which relate to control of n acquisition project expiration tual the at the the license. findings opinion by
. After an formal trial, reinforced law, 'of fact and district court decided that New navigable States; a River is not water of the United respondent’s that not obstruct dam would navigable' river, of the or capacity any'other Kanawha not affect interests of com- would interstate on findings that Power Commission’s these merce; not but subject were final to the determination matters courts;7 Power Act Federal Water did not in- the authority require Commission a license vest to nonnavigable if river; that even the Commission authority had some license for a dam non- require navigable waters, impose it could not conditions having no relation t£e protection navigable capacity of waters of the United States; that "its effort to impose upon respondent a containing license unlawful barred the conditions United States from relief. The judge district therefore it dismissed but left bill, open urged In courts below unsuccessfully both the Government findings Commission, if supported evidence, substantial of.the (cid:127) Although regards it correct, were conclusive. still this contention as pass does not "seek it in this Government have this Court on case.
403 assert if rights operation to the Government its future interfered with navigable of the the of project capacity of the The the United States. court waters circuit of judge dissenting, granted with one affirmed. appeals, We certiorari.8 Findings. The district finding
Concurrent that court’s not River was was concurred by New court the circuit after a careful of appeals appraisal in the record.9 Both courts detail evidence stated relating the-circumstantial facts use of river physical characteristics, water, and its such as volume of and disagree- swiftness obstructions. is no real There the parties physical ment between concerning here these evidentiary historical But and facts. there are sharp divergencies view as to their reliability as indicia of weight and the navigability which should be attributed disagreement to them.The over conclu- ultimate navigability to be drawn from upon sion this uncontro- verted evidence. respondent
The this Court’s statement relies-upon as “each to navigability determination must stand on facts,”10 upon own its rule conventional findings factual concurred by two' will be courts accepted this Court unless clear error is shown.11 In involving navigability cases courses, water expressly this without passing finality on Court, on findings, some occasions has entered consid- into found by eration facts two courts to determine for 8 646. 309 U. S. 769, 780, 2d
9 107F. 787. 10 Utah, 283 64, United States v. U. S. 87. 11 77, 86; States, g., Co. v. United U. S. e. Alabama Oil Brewer 464, 477; v. S. v. Ickes, Mfg. U. Pick Power Co. General Co. Corp., 3; Clerks, 299 U. Ry. Texas & R. S. v. Motors N. O. Co. 558; U. U. S. O’Donnell, States to the correctly applied have whether the courts itself When we deal with legal tests.12 proper facts found and their constitu before facts as these us, suсh issues closely connected to make the are too significance tional guide. legal concept rule a serviceablé two-court inter private embraces both navigability public by a which fits not to be determined formula It is ests. all under all circumstances and at of stream every type *23 have taken due account of the past decisions times. Our in complexities the circumstances of á river. and changes lay single now to down any not definitive purport We do (cid:127) from the in prior draw decisions this field and We test. them, regard dynamic with due to nature of apply the particular to circumstances presented the problem', River. To judi the New these certain by circumstances applied are to be for determining cial standards whether in of the conditions complex respect to its capacity in commerce interstate render it a navigable for use the Constitutional requirements. within Both stream the ultimate conclusion ques the standards involve particular from the inseparable of law facts to tions they applied. are which ' The of the Navigability. power United States over its of use as capable highways which are interstate waters n , from the commerce clause of the arises Constitution. regulate “The Power ... To Congress shall have Com among . . . the several States.” It held early merce was history power regulate our commerce necessarily included over power navigation.13 To make control effective the Congress may its keep the “navi 12 699; Co., v. Rio 174 S. Irrigation U. United States Grande 621; Economy Light 177 Leovy States, v. United U. Co. v. United S. 117; v. 256 270 States, Bank, U. U. S. United States Holt 49, 55. 13 1, 189; Leovy v. Ogden, Gibbons Wheat. States, United 621, 632. U. S. open
gable United States” and free and of the waters against any provide interference with the sanctions may- country’s legislate It to forbid or water assets.14 power improve-, waters;15 over dams its license navigation in rivers is “absolute.” ments possess The control of the waters within their states “subject acknowledgedjurisdiction of the borders, regard to com- United States under Constitution navigation of the It merce and the waters rivers.”17 navigable local control even as to this subordinate that, respective governments-a creates between con- rivers, relating- regulation trariety pro-, interests through operation licenses, tection of waters struc- acquisition projects at the and the end of the tures there that the license term. But is no doubt power possesses States, to control the erection of waters. structures navigability of the New is, course,' River question it, factual but to call a fact obscure the canno.t application diverse elements that enter into the legal navigability. dealing tests as to We are here with *24 sovereign powers right the of the Union, the Nation’s waterways that its be utilized for the interests of the country, commerce of the whole It is obvious that the may put- vary uses to which the streams be from the carriage floating logs;19 of ocean liners to the out of density equally widely busy, of traffic varies from the 713, 724-25; Philadelphia, 14 Gilman v. 3 Wall. United States v. Coombs, 12 72, Pet. 78. 15 v. Co., Willson Black Bird 245, 2 Pet. 250; United Creek Marsh v. Rio Irrigation Co., 690, 174 U. 703. States Grande S. 16 411, 419. Rouge v. River 269 U. S. States Co., United 17 Anthony St. Falls Power Co. v. Commissioners, Water Water 168 349, 366; U. S. Irrigation United States v. Rio Grande Co., 174 U. S. 690, 702. 18 Arizona v. California, 423, U. 283 S. 452. 19 Montello, 430, The Wall. 441. 20 406 regions of sparsely
harbors of seacoast to settled navigability the Western mountains.20 The tests toas must take these into consideration. variations
Both their lower courts based investigation primarily upon generally definition accepted of Daniel In doing they Ball.21 so with the rulings were accord of this on the concept Court basic of Each navigability.22 application test, of this however, apt to uncover varia- require tions and refinements which further elaboration. In the lower courts and urges Government here, the phrase “susceptible of being their ordi- used, nary condition,” in the definition, Daniel Ball not should as be construed eliminating possibility of determin- ing navigability in the light of the effect reasonable improvements. The court thought argument district inapplicable.23 20 Utah, 64, United v. States 283 S. 83. U. 557,
21 10Wall.
563:
regarded
public
. .
rivers must
as
navigable
Those
be
rivers in
navigable
law
they
navigable
which
are
fact. And
are
in fact
they
used,
when
susceptible
being
or are
used,
ordinary
are
in their
condition,
highways
commerce,
as
over which
are
trade
travel
may
customary
or
be
in the
modes of trade and travel
.conducted
on
they
water. And
navigable
constitute
of the United States
wafers
meaning
within
Congress,
acts
in contradistinction from
waters
the States,
they
ordinary
when
form in their
by themselves,
by uniting
condition
waters,
or
with other
a' continued
highway'
may
which
or
over
commerce 'is
on
carried
with other
foreign
States or
customary
countries in the
modes in which such
commerce is conducted
water.”
Appalachian
v.
United States
Electric
Co.,
Power
be a navigable, remains so.27 no more This is in navigability indefinite than a rule of adopted fact as upon below based “useful interstate “gen- commerce” or eral common usefulness for purposes of trade and if interpreted commerce” these are as barring improve- Nor necessary ments.28 is it that the improvements actually completed should be or even The authorized. Congress power of over commerce is not to hampered be necessity of the for because improvements reasonable waterway make an interstate available for traffic. Of course there are in applying difficulties these views. Improvements may entirely reasonable thickly highly region populated, developed, industrial entirely been too for may costly region have the same days changes in the of the The pioneers. engineering coming or the of practices new industries with varying freight may type affect the of improve classes Although fix navigability ment. ownership rights30 or riparian is determined bed29 as the river cases show, just cited *27 merely It improvements waterways. to the is waterways the to certain improvements applicable make determining In the existing power over commerce.35 proper the River it navigable character of New is the reasonable feasibility consider of interstate use after 6 improvements might which be made.3 it for the use should necessary navigability Nor is products the be continuous. The character of its region, influence dangers navigation and the or of the difficulties . traffic com regularity and extent use.37 Small is pared region to the commerce of the suffic available years, of long ient.38 Even of use periods absence over of the railroad changed conditions, because of coming navigability or improved highways does not affect 34 Light Montello, Economy Co. v. 430, 442-43; Wall. 20 v. Utah, 283 U. S. 113, 122; United States United States, 256 U. McConnell, Spooner v. 64, 22 McLean in See also Mr. Justice 86. (C. 1838). D. 13,245, p. Fed. No. at 944 C. Ohio Cas. 35 Cress, growth United is 243 States Illustrative of this natural v. rights improvements involving riparian proprietors’ 316, where U. S. uplands newly permanently are sub- raise river level so that and jected navigation. Compensation public to the servitude of use waterways taking was with in decreed for a declaration that improved, remained waters of question, artificially as California, 283 Cf. Arizona v. 326). (pp. United 325 States U. S. 454. 36 States, v. United 46 Ct. Cl. Cf. Barnes Utah, California, Arizona v. 64; States v. U. S. 423, 452-54. U. S. 64, 82. Utah, 283 U. S. United States o recog It in sense.39 is well the constitutional
of rivers may be of navigability a substantial too that nized in course, Of these only waterway question.40 part in are to nonnavigability in whole or part evidences totality to determine the effect all. appraised be legal proceed these mind we to examine tests With 111-mile reach of from see this river facts to whether.the Virginia across Hinton, Allisonia the Virginia-West by the public for the line, “capability has use state transportation commerce.” purposes New River Physical may Characteristics. said as such at the mouth* its' character of Wilson assume near the Carolina-Virginia North line. From that Creek it first a northeast and then a northwest flows point something over- 250 miles to Falls, direction Kanawha through Virginia.. passes It "Allisonia and Radford, West and then Hinton,- Virginia. joined West It Virginia, many the largest of which is the tributaries, Gauley. changés Falls it At Kanawha its name to the Kanawha, a commercial navigable river of importance which joins the *28 - The territory Ohio miles below. whole 97 by traversed is broken and the New mountainous. Between Hinton the Falls, Kanawha river is and swift and gorge the pre- Above Hinton the cipitous. river flows slowly, more valley through a broadei and between less rugged moun- The may same tains. said of the area above Radford. the there Throughout river is an abundance of water, respondent hardly and the denies that the flowage suffices if make other conditions the New available for navi- gation.42 39 Ashwander v. Authority, Valley Tennessee 297 288, U. S. 329. 40 Economy Light Co. v. States, 113, 124; 256 U. S. Arizona 423, 283 U. 453. California, 41 Wall. Cf. 20 Montello, 441. Supp. 23
42 See at F. appraise navigability to It discussion will conserve Hinton 111-mile stretch between Allisonia and of the be- together which form the whole reach three sections 28 miles from tween Allisonia to Rad- points: these improved. which States between 1876 ford, the-United Wiley’s from. to and the 59-mile stretch Radford 1883; except Wiley’s never Falls, Virginia, improved at Falls Wiley’s and the miles from Falls across the itself; state Hinton, Virginia, line to West like upper sec- which, tion, improved during Government 1876-1883. We chiefly the disputed shall examine middle for as section, the evidence of navigability to others is much stronger and that obstructions much For weaker. report of the Chief of instance, Engineers for 1873 operating keelboats river, refers to certain on the and for 1883 shows that 17 report his keelboats operated Keelboats were above flat-bottomed Hinton. bateaux, long, feet with a draft two feet and a carry- or 12 varying up to 10 ing capacity They tons. were used transport commercially. lumber, tobacco and other region. The evidence is products clear that these from Hinton plied up bateaux near Lyn Glen with the first regularity-through decade fair of this century second; timber well into and and-lumber in large were apparently boated quantities and rafted down to up-rivér points various Hinton from below Glen Lyn beginning until about World War.43 Around -of Engineers the Chiеf above Radford reported two eight operating 188Í, keelboats eight to- small with a steamboat gether 1883. The corroborat- testimony many witnesses ing iii .shows that the 80s testimony WNs, Peters, This is shown Starbuck, Lane, Lucas, Farley, Kenley, E. Smith, Lilly, W. E. M. L. Burks, W. *29 Z. V. Wauhop, Stover, Calloway, R. Burks, Johnson, Martin, J. C. Tom- Lilly.. kies, B. C. and well as pig iron,
these carried iron ore and as boats and Allisonia and merchandise, between New produce At the River which is little above Radford.44 Bridge, freight Bridge Hinton and New River railroad stations, brought by or other craft trans- keelboats river was freight rail shipped, arriving by by was forwarded and, river.-
We come then to a consideration the crucial stretch from Wiley’s junction Radford to below Falls where is made Wiley’s with the reach from Hin- interstate Falls to ton; In the for report Secretary of War appears mile-by-mile .survey Hutton’s useful of the river from above Greenbrier, Allisonia to mouth of the which is nearly down to It Hinton. was made as a basis for plans to improve by the New federal appropriation.45 survey designates This Radford-Wiley’s Falls stretch “mile 46” as to “mile 104” inclusive. Eighteen of these - grades falling, gradually miles have more abruptly, or than four feet in the mile. Several of these where there or rapids are falls show drops of nine one eight, instance feet. The higher footage represents, of 11% course,-miles which small falls are found. Between these precipitous more many sections are miles what water,” is called with a gradual of 4 “goód fall feet or less. declivity miles is wh§re Even the fall rapid, is apparently largely, containing in sections obstructions. 'testimony g., 44 E. Howard, of R. L. Graham, Breeding, J. B; Owen; Farmer,. Allison, H. Howard, Peterson, Z.- J. H. Moore, Ingles. Likens, Roop, and. In engineer reported assistant inquiries that “from -the it
.thought channel-way years made in former improved [on keeps open, still bateaux are in them, sections]- constant on use having shipped iron bridge up been New River to the time of the suspension prevailing the furnaces (Report hard times” Engineers 1886). the Chief of
45 17Stat. 376. *30 bowlders “Rapid, mile reads over the 51st For instance, feet,” the 100th fall, and feet long; 1,500 and gravel, 8% feet, fall, whole rapids; Falls and “Neilley’s mile left along long, A feet sluice 500 nearly it vertical. of feet rock excavation with 50 of bank, pass will them, frequently gravel.” feet bowlders and Quite of and 450 as moderate, other obstructions appear, the fall is where and long, 500 feet over bowlders “Rapids, mile the 78th are scattered Large 2 feet.” isolated rocks fall, gravel;, testify- A geologist the throughout stretch. abundantly faulting strikingly tells how respondent for the ing at this stretch has resulted of the surface folding and “In steep degree. rock to a its tilting of the strata New River moves along up of and flow, the water ledges or . . . results rock strata this of successive slopes of ledges strata, with numerous rock some a river substantially which exposed, some are partly submerged, which standing on extend across vertical or end, angles the line of flow right slope at to . . . stream in an rather upstream direction of strata downward contrary direction,” a downstream usual than data point condition. No other material variations descriptions. from these Wiley’s Falls. Navi
Use River from Radford Radford-Wiley’s stretch gation large. on the was not Falls Undoubtedly the difficulties restricted it and with the of the Norfolk & coming Western and the & Chesapeake in the Ohio railroads su&" there 80s, as had been use practically ceased, except for small going ferries .public Well, one to the other.46 in from bank authenticated boating along In stretch, however, stances this exist. survey 1819 a was Moore Briggs, made whom less 46 At different times before 1935 ferries crossed the river at no Radford-Wiley’s points along Falls stretch. In 1935 than ten public ferries. there were five such Assembly Virginia had
General sent to on report availability improvement. Beginning the New for at they the mouth of the Greenbrier up boated to the mouth n Sinking Creek, some miles, noting the characteris they the river as They tics of went. reported they ascended all falls with their in two or three boat, “though, *31 with instances, considerable taking after out difficulty, 47(cid:127) baggage, stores, our &c.” Creek is about Sinking half stretch, way up this of river we are considering. In 1861 the Virginiа Assembly General appropriated $30,000 to improve New River to accommodate trans- of military by portation stores bateaux from Central depot to the mouth of the Greenbrier.48 [Radford]' there is no While direct proof that this particular appro- priation spent, reports was of Department War engi- .the neers make it clear that the' government Confederate improvements effected some on the river.49 These facts the testimony buttress of several witnesses, one Con- a veteran, federate that during the Civil War keelbottom brought’supplies from commissary .boats Radford to a at Briggs. Report of Moore and Fourth and Reports Fifth Annual the Board of’ Public Virginia of the General Assembly of Works (1819). Report Principal Engineer of of the Board of Public Works. While Marshall was Chief Virginia Justice he of was head com- surveyed -part which mission had by of the New River boat only going downstream from the mouth of the but Greenbrier. Re- port Commissioners,' printed' of 48 Virginia 1861-62, Acts c. 50. 49“But little has been done way in the improving since river Briggs, of-Moore though time and an effort is said to have been by
made in direction government the confederate in the late war” (Report Engineers 1873). of Chief of for “Experience,-as developed universal fate of -the work of'the late Confecterate on States (though river this this seems to injudiciously have beеn located and poorly built), anything adverse rigid like (Re structures . . .” port Engineers 1879). of Chief and then Lyn), Glen (about miles above the Narrows testimony This downstream.50 further continued as true.51 accepted of'appeals circuit court coming to the the Civil War From the end of with familiar élderly residents , the evidence of railroads, Radford of the river between along events banks sporadic least doubt that at Wiley’s Falls no and leaves this stretch. throughout took transportation place Rad- the keelboats above this it is not meant By in the frequently which operated ford and above Hinton, Alli- from regular through trips made improved sections,' navigation, Through Radford to Hinton. past sonia testimony of a by the occur, did as is shown however, lower courts.52 recognized by the number of witnesses to' isolated bits numerous references There are also Radford-Wiley’s Falls reach.53 along boating parts stopped improvement And when the Government mines’ using it the lead it ordered the boats was down- places and* at various Allisonia, division above *32 down the full stretch of the river stream, brought to be of the assist- supervision Hinton for.sale. Under to four numerous boat, and Engineer, ant a derrick bateaux, twenty and canoes—more than flat skiffs vessels boats, in taken down to a number of them all—were Hinton, above Radford. This was- as points accomplished, from Engineers’ report shows, despite Chief of difficulties 50Testimony Snyder, Snidow, of Skeen.
51
52 See23 F. 2d 786. Testimony going Radford, Hinton, above, bateaux from or of to Flannagan, Collins, Webb, Snyder. given by Linkous, motor, by 8, gasoline went with a from Radford to boat, A 50 feet though materially by after the river had been raised in Hinton a rain. testimony Coleman, Webb, Howard, Snyder, .Price, Martin, g.,E. Anderson scarcity of by “weather, water, low and occasioned
labor.” in before testimony days In of use addition good roads, and there a demonstration of railways was survey a possibility navigation by government an long, wide, boat with outboard 16 feet five feet motor, drawing to 3 loaded a crew of and its feet, with five 2% survey equipment. trip This boat a from made round just Allisonia, above Wiley’s Falls, a Narrows, of 72 July, one way, distance miles when the stage was summer river normal low While the water. out boat poles crew was and used a number of there were no carries or times, portages. Going upstream not necessary pull it or push was boat more than quarter mile and a not more than a a few hundred feet on return trip. long of a stream
Use abandoned water commerce is prove by difficult to abundant evidence. Fourteen au century of use thenticated instances and a half by trappers, coupled general explorers with historical to the as a water early references river route for the fur supplies and their pirogues traders and Durham or craft flat-bottomed similar to the keelboats of the New, upon phase sufficed case the DesPlaines.55 lack of commercial Nor is traffic a.bar to a conclusion of navigability personal where or private use dem by boats availability onstrates the stream for the simpler navigation.56 types of commercial The evidence of actual use of the Radford-Wiley’s for commerce private Falls section and for convenience, Engineers 54 Report of the Chief of testimony for' See also *33 Owen, Crowell, Dickinson. 55 Economy Light States, v. United Co. 792, 256 797-98; F. affirmed 113. 256 U. S. 56 Utah, United States 64, 283 U. S. 82. condition,
when physical taken connection with its the improvement makes it reasonable quite plain navigable employed reach would the of type for boats the the de on less obstructed sections. Indeed evidence strikingly upon by tailed above is similar to that relied Court the this v. Utah57 to establish United States navigability Canyon of the Colorado from Cataract the Utah-Arizona line. There had been sev boundary through sixty years enteen over from the trips period a of original exploration; these together sporadic with trips stretch, on of the parts and considerable use—in connection with gold placer mining other from parts —of 1888 to sufficed to sustain navigability.58 Unprovability. Respondent prac- denied the Effect of ticability of bring navigabil- artificial méans to about the ity of the River im- any and the effectiveness of New provement make the a of river water allegation States. The Government supported its improvability by out pointing use of sec- through navigation tion for and local on boating favorr able stretches of the Radford-Wiley’s Falls reach showed feasibility of such use and that little was needed way improvements make the section thor- oughfare for light commercial traffic of typical, Keelboats, eight area. feet two wide, drawing feet, In were the usual equipment. report Engineers, Major Craighill Chief charge New gét River that to reports “good navigation sluice of 2 feet at all- times” from the miles mouth of the up Greenbrier near River, Hinton, $30,000 cost would for 128 Greenbrier to lead mines Alli- miles, (above sonia), $100,000. would cost over the depth shoals could be increased to feet “too without much increase 57 283U. Report Master, seq. See the p. 127 et *34 was velocity of the current.” This recommendation mile-by-mile all survey on Hutton’s and includes based Radford-Wiley’s Falls of the section. were undertaken in 1877. beginning The improvements
. v higher becoming was- region developed, As the better a ways became wider sluice type improvement desirable, steamboats,. channel, usable small Work deeper and to meet Hinton and above Radford above went forward re Annual communities. demands pressing Engineers Chief of assumed or reaffirmed of the ports entire- Hinton of the river above and navigability $109,- improvements.59 of the By 1891, practicality It year had been was spent. 733.21 that estimated required be to’ $159,000 complete project more would length full Wilson Creek Hinton.60 Useful from near regularly moved between navigation and Hintpn About, between Radford and Allisonia. Lyn Glen im Hinton and Allisonia was reach between half never Falls Radford-Wiley’s The section was proved. changed that conditions had reported It was improved! completed.61 provi not The should project repealed By were 1902.62 improvements for sions of the fiver so need for use had region’s the' diminished im army engineers against undertaking advised that - as and even referred to the cost again, provements Radford-Wiley’s From use of the “prohibitive.” its’ready, improva-' and the evidence as stretch Falls conclude bility at a low cost for easier keelboat we use, navigable. It fol New River is this section together with the this, undisputed lows from commercial 1880, pp. 1878, 69, 495-99; 1879, pp. 79, 530-45; 59 Report pp. for 913-19; 144-45, 1; -1881, 1882, pp. 140-42, 676-81; pp. 107-08, 904-1 1886, 281-82, 144-45, 699-705; pp. 1883, pp. 1599-1602.. Engineers Report p. of the Chief 61 Id., at 302-303.
62 32 Stat.374. 63 Cong., Sess., p. 3. 3d
House Doc. 62nd No. Hinton, usé of the two stretches above Radford and Hinton, River from Virginia, the New West Allisonia, is a water of the Virginia, United‘States. License Provisions. determination that the New *35 River is eliminates from this case issues which may only where the river involved nonnavigable.64 arise is navigability But accepting even the of the New River, urges that respondent the certain provisions of the to which seek control of the licensee, are license, affairs navigation unconnected with are- beyond and the power Commission, beyond of the indeed the constitutional to Congress of power authorize.
The of issue arises because the prayer of the bill that the be respondent compelled to the accept license as required by law or remove the dam as an obstruction and of respondent the answer the the license re- by quired law it by and tendered to the Commission provisions, contains unrelated to the navigation pro- or tection navigable capacity, beyond of which are the con- authority, Congress stitutional of to require on account of the Fifth Tenth Amendments. There no con- provisions tention that the of the are license not author- by ized the In statute. the note below65 the chief 64 Appalachian Co., States Electric Cf. Power F. 2d 107 seq. 769, 793 et (a)
65 Section 4 regulate of the Act allows the Commission to licensee’s accounts. years.
Section 6 limits licenses 50 to requires approval Section Commission voluntary-transfers for rights granted licenses thereunder. or (a), 1935, requires project Section as amended the, adapted comprehensive plan improving best to developing for or waterway for foreign or the use benefit of interstate or commerce, for improvement water-power and utilization of development, and' public uses, including for other beneficial purposes. recreational (c) project Under adequately the licensee must maintain the § navigation power operation, depre- for efficient must maintain adequate ciation reserves and replacements, for renewals and must for a Statutory conditions license are epitomized. May 5, 1931, license on embodied respondent offered statutory requirements these and we assume it to be conformity existing with the administration of the Power pass upon only pro Act. We shall those validity visions called to by of the license' our attention respondent as unrelated to the of navi being purposes gation. are the from 10a, §§ These conditions derived lOd, lOe and not that the valid 14. We do consider 10c, ity of other has raised ~?gpondentV clauses been challenge general constitutionality any provi “other than relating sion those solely protection” It navigable waters.66 should also be that no noted complaint any is made of de conditions licеnse upon pendent lOg, the authorization of § the omnibus regulations protection life, conform the Commission’s for the (d) property; surplus health and out of earned after first *36 years specified return, of a' reasonable rate the licensee must above applied in- maintain amortization reserves in reduction of net to vestment; (e) the pay the licensee must States reasonable United administering Act, during chargesior years the annual the and first 20 expropriate profits is to excessive the United States until the state (f) may licensee prevents profits; the be ordered such to reimburse by work it is benefited. construction those whose navigable projects in waters of the By 11, for United States the § , Commission may locks, etc., require the licensee to construct and to (a) rights-of-way lands and free cost to furnish the’ United States .of (.b) facilities, power operáting navigation and for such improve facilities. right, upon of gives expiration the States the a 14 United Section project by paying operate the the licensee’s
license, over and to take defined, exceed value of property as not to fair the “net investment” any right of or state However, United States or the the taken. any expressly project at time reserved. the municipality condemn to regulation if none ex- of service and rates: allows state Section jurisdiction. may exercise such ists, the Commission States, 470, 484; U. S. Yard Co. v. Denver Stock 176, 184. White, 296 U. States Co. Pacific (cid:127) requiring compliance clause with such other conditions may require. the Commission as petitioner suggests consideration, The that of the valid ity acquisition § 14, of the and license clause, condi upon language properly tions based its are to be deferred. right until United States undertakes to claim the to purchase project fifty years on the license terms Assuming accept its after issuance.67 the mere objection a ance of license would not later bar of accompanied by unconstitutional when even conditions, specificagreement a to license,68 abide statute and requirements vitally § we conclude that here the so financing respondent’s the establishment and affect require, project validity as to of their determination injunction. finally adjudging before the issué of objections respondent’s statutory to the and provisions, applied navigable to streams, license as are (1) contentions that the based on the United States’ con- purposes'of limited waters is to control trol . navigation, (2) provisions that certain license take its process, property (3) without due that the claimed acquire right project regulate this its financ- ing, rights' records and is an invasion of the- affаirs, contrary Tenth states, Amendment. join support
Forty-one as amici states of the re- arguments. spondents conceding, While as of' course, ¡ Congress may prohibit erection waters, any of the' United structure, States deemed to navigation, impair Attorneys speaking General for. *37 power prohibition not, insist that the states this of does comprehend power a to exact which conditions, are un- 67 Cf. Electric Bond v. Comm’n, & Exchange Share Co. & Securities 419, 435; 303 Co. v. Cargill U. 180 U. S. W. W. Minnesota, 468; Jersey 269 S.U. Sargent, 339. New § 6. 68 to érect navigation, permission for the related such. im- continues, the argument the permit, structures. To such this ac- involving of licenses conditions as position enabling Federal Government quisition clause, allows take over natural resource such as water-power, mines, oil or farmlands as logically acquisition similar of doing of an busi- consideration for interstate privilege The lose of their resources and thus control states ness. from taxation of the violation property is withdrawn Tenth Amendment. is made that a clash point of'sovereignty
Further, provisions the license between Power Act arises The licensing provisions. Commonwealth-of and state forcibly contention Virginia advances its that the affirma water-power on regulation projects its tive boundaries rests with be state, within its streams navigation. that ifWhile yond suprem needed Government its own acy proрer of the Federal Constitution, cheerfully in the is as delineated sphere, Virginia conceded, yet just, earnestly upon as does insist government her own its supremacy proper field that by Virginia instrument.” as established has a It, fifty-year Power Act.69 .offers a license, Water' too, right to use .natural resources the state, with flow and beds of the water the stream courses for the its, subject or the license extensions to state period any Virginia’s time on at terms for condemnation ascer Operation regulated tainment of value. is likewise objects law.70 Commonwealth the devel -state power subjected its water opment resources to Fed requirements eral Power Act such as are detailed above stating respondent’s objection, even to the point Virginia may not' itself build and operate a dam in Code; (1)-(16). Michie’s §§ 4065a, Code, Michie’s 1936 §§
423 regulation by without authorization and navigable water Government. the Federal marshaled, arguments at the bar have
The briefs to the range cover wide of precedents pos- reasons in disagreement between Nation and State func-' sible of the Power Act. To predetermine, Federal even tioning power,- rights limited field of water of different with future controversies, is sovereignties, pregnant be- judicial The yond the function. courts deal with legal presented not cases, concrеte actual issues, ab- The of other of possibility stractions.71 uses the coercive if here license, it is not power upheld, is before us. We extremes pictured deem irrelevant save possi- as for consideration determining bilities the present ques- , validity challenged tion of license provisions. this portion we limit of our To this decision.72 is respondent riparian a owner with The a valid state”? j to use the natural license resources of the for state its it Consequently has as enterprise. right complete to riparian lands, water, the use and the river n under bed as can be obtained state law. The state and hold the respondent, alike, waters however,' and the lands subject power under them to the of Congress to control purpose waters commerce.73 power grant from the flows i. regulate; e., “prescribe the- by which governed.”74 rule commerce to be This in- 71 1, 75; v. 5 Georgia, Pet. Cherokee United States v. West Nation 474; Jersey 463, 295 U. S. v. Virginia, Sargent, New 328; 269 U. S. 449, 458; v. 217 N. 2d Point, cf. McGuinn 8 S. E. High 462. C. 72 Valley Authority, Ashwander v. Tennessee 288, 297 U. S. 339. 73 S. 328, 337; 269 U. Jersey Sargent, v. United States v. River New 411, 419; 269 U. Rouge Co., Cress, United States v. 243 S. S. U. 580; 320; S. 572, States, v. United 240 U. v. Willink United States 53, 62; Co., U. Gibson v. States, Chandler-Dunbar . 1 U. S. 27 Ogden, Wheat. 1, Gibbons as capacity waters protection eludes com Congress regulate power as use.75 This well to whether judgment its as is so únfettered merce *39 hindrance conclusive. Its is not a is a or. is structure The Federal. character.76 is-legislative determination inher the power has over water domination Government flowing It is to no one its in- the liable stream. ent navigable is of a stream no non-use. The flow use or in' water a running “that private property; sense of navigable capable private ownership stream is great riparian from Exclusion owners inconceivable.” is is compensation entirely without within its benefits Government’s discretion.77
Possessing power this exclude structures plenary navigable flowage and dominion from over and' waters may United make the product, its States energy, ip. navigable or maintenance of a structure erection dependent water a license.78 is upon power This exer- through § 9 cised Rivers Harbors Act of 1899 Congressional construction without prohibiting consent 4§ through (e) present of the Act. Power true that quite' It is criticized provisions summa are not to or rized above essential even concerned with navigation Respondent as such. rights asserts that United States to the use of the waters is limited navigation. It out pointed federal sover eignty over waters was so described in Port Seattle v. Co.,79 Oregon & Washington United R. States v. Ore-
75
Philadelphia,
713,
v.
3
725.
Gilman
Wall.
76 United
v.
53, 64, 65;
Co.,
States
Chandler-Dunbar
229 U. S.
v.
Bridge
States,
364, 400;
204 U. S.
Union
Co. United
Pennsyl
cf.
.
Wheeling Bridge Co.,
518,
vania v.
13 How.
80 295 S.U. 14. 46, 81 206U. S. 82 85-86. 411, 269 U. S. 419. 367, 278 U. S. 415. IV, 3, Art. cl. 2. § 85Cf. Hanson, v. States 881, 884; 167 F. Soap Cincinnati States, Co. v. United 308, . U. 322 86Cf. Sanitary States, District United 266 U. S. for than water other power use of constitutional it other advan- though is navigable plain purposes, occur, tages (pp. 419), it con vieyv, properly
In cannot said that our of the United States over its waters power stitutional navigation. navigation for- re By is limited to control of boats and operation means no than spondent more In waterway itself. truth the au improvement of the regulation of United States is the of com thority just in the merce on its waters. Navigability, sense a this whole. part protection, is óf Flood stated; but development, improve watershed of cost of recovery power parts likewise through ments utilization are argues, respondent soundly control.87 As commerce calling by of its project the United States cannot a give dam” to itself “a'multiple purpose own additional equally truly respondent cannot, powers, but seeking navigable waterway a for power genera use authority tion of the Government aloné, over avoid (cid:127) authority as broad the stream. as the That needs - power from develоpment commerce. Water dams standpoint is from the a public’s by streams general of the use rivers commerce. product general power,, respondent must submit T!o this its the. purpose production. électrical fact single license, willing give power for' a tjhe Commission's significance in appraising type of no only is' dam may It well be that portion this Conditions allowable. *41 navigation is needed at this river not the time. of may function proposed satisfactorily that 0r the^dam or intended. It in contemplated may fit' others, i^ith. development. The point the of river is that part aás. subject national planning are waters to Navigable regulation granted broad of commerce the Control 87 Valley Authority, 288. v. Tennessee U. S. Cf. Ashwander license to Federal Government. The conditions which objection relationship made an to the have obvious is if power. exercise of the commerce Even there were no power relationship plenary Congress such over it empower deny waters would the privilege constructing an those It may obstruction waters. grant privilege on terms. It objection likewise is mo terms and to the power exertion that “its exercise attended by is same incidents which attend the exercise of the the states.” The police power Congressional under authority the commerce clause complete limited the Fifth unless Amendment. urges respondent riparian that as owner with state it plans, of its is entitled to approval freedom developmént property of its and particularly cannot be acquisition to submit to the compelled clause with a n price fixed at less than a fair value, the eminent do at' the time sense, taking. main Such a taking, it is contended, would violate Fifth Amendment. It is whether question now a the Government in taking over may do so at less than a fair value.- It property shown, 77, has been note there is no supra, private in the flow of the property stream. This has no assess to the riparian able value owner. If the- Government to build the it dam, were now would have to pay the fair judicially determined,89 for the value, land; nothing fast water power.90 for the We assume deciding without by compulsion acquisition method of provided in 14 of the Power Act and the § tendered license, these rights riparian may pass to the United States for less In their value. our than view this “is price which [respondents] pay must right secure the to maintain v. 144, 304 U. S. Co., Products 147. Cf. United States Carolene . Smith, 307 U. 48 Mulford 89 Monongahela Navigation States, Co. v. United 148 U. S. Co., 53, 66, 76. States v. Chandler-Dunbar 229 U. S. *42 dam.” quoted their The words are the conclusion of the opinion Fox River v. Railroad Commission.91 Co. case is decisive on the It relates to issue confiscation. clause;in an by a.Wisconsin license which a' acquisition navigable dam in water might of the state be taken over price, would, at such a as this Court assumed, to amount of the due clause of process violation the Fourteenth if Amendment it were not. for provision. the license Title to the bank just and bed were in.the objector, as, by of the state's license and the riparian owner virtue. rights all respondent.' here to ship, belong There, as rights subject here, governmental were “control waters.” The fact the Fox River case involved and that this' case involves the state a. United States is immaterial from the due process stand point. might Since the United States erect a structure in. ‘itself, these waters- equipped one. even. electrical generation,93 may it constitutionally acquire already one built. acquisition
Such an option or such an to acquire not of the sovereignty an invasion of a state. At the forma- delegated tion of the states Union, the Federal regulate Government authority commerce among the long things, So as the done within states. states States are valid? under that power, there can be.no interference the sovereignty with of the state. It non-delegated power is the which under the Tenth Amendment remains the state or the people. The power, water statutes of the United States and of Vir- recognize the' ginia difficúlties of our dual system 91 274U. S. 651.
92 Id., 93 v. 288; Valley Authority, 297 U. S. Ashwander Tennessee Arizona . 423 283 U. S. California, (cid:127)government by enactments, each in its own providing, for the the other.94 rights exercise of *43 with
Reversed and remanded to the' District Court enjoining instructions to enter an order the construction/ maintenance or the other operation project of Radford under the license, accepted by respondent wise than a time, substantially in the form ten within a reasonable the Federal Power on: respondent by dered Commission in May or 1931, alternative, prayed or about as 5, in the bill.
Reversed. in part The Chief took no the consideration Justice of this case. decision or Roberts, dissenting: Justice
Mr. on the judgment The of reversal rests conclusion that resting on find- navigable, New is conclusion River —a novo, in ings here de contradiction of fact, of made I of findings two below. am concurrent courts Ap- C opinion judgment urt Circuit peals affirmed, first, ought should be because this court such respect give findings to effect to concurrent support which in the sec- evidence; have substantial will support contrary because the evidence not ondly, findings if of New be navigability by tested River long criteria established. A in navigable
1. river law if it in is is fact.1 non Indeed issue vel is so navigability peculiarly a determination of fact that as to one one. can stream relevancy determining the have-little status of another. Act; Federal lOe, 19 of Power Miehie’s 14 and 1936 Vir §§ (9). Code, ginia §.3581 Texas, 574, 590-1; 258 U. Arizona v. Oklahoma v. Califor Benson, 423, 452; nia, Crowell v. 285 U. S. 283 U. S. As has. this court said, “each determination as to navi must
gability stand on its own facts.” ' I supports, evidence think it requires,— —indeed finding a that, applying accepted criteria, New River not, and never navigable. has On been, this fact record the rule of announced decision, many times court, this findings concurrent of fact of two lower if will courts, supported by evidence, substantial accepted here, requires affirmance the judgment. The rule applies but not.only evidentiary facts fact Moreover, conclusions of based thereon. it has been the basis of this court’s decision a involving suit question navigability. rule, court, this Invoking States, Brewer-Elliott &Oil Gas Co. v. United U. S. 77, 86, judgment declined review a based on *44 finding’of concurrent two lower courts that a “was stream not, navigable and had within been, adjudged never the meaning of that term.”
The cases cited for the navi- proposition that where gability an this the facts was issue court has reconsidered they whether found courts below the determine legal not, the tests do applied proper have when correctly lend support are questions involved understood, the in this case.3 action court the the 2 Utah, 283 64, 87. S.U. United States v. Irrigation Co., Rio Grande are United States cited v. 3 The cases respect findings: to the said this with 690, 699, where court S.U. reached,” question, the conclusion disposed to not, therefore, “We are States, Leovy S. where á United v. 177 U. below; by the courts judge’s error in the reversed for was verdict judgment jury’s on a Light Economy Co. navigability; the criteria as to instructions not did court 113, 117, where the reexamine States, U. S. Appeals, Circuit Court of judgment of the but affirmed the facts in The Daniel applied the test laid down correctly had court as Bank, 49, 55, U. where v. Holt Ball; United States navigability local law as one of question of treated below courts adopted Minnesota, in rule by applying determined
The petitioner, effect, in this asks court to convict the below of- in determining error courts the credibility, weight and relevance of the evidence. But that deter- mination is within peculiarly their province, as this court has said.- The applies often doctrine in this case with especial respondent force.' The says, without contradic- tion, that the Government its brief the Circuit Court stated: “It-cannot be said that the New River presents a 'clear case’ of navigability or non-navigability ...” Yet this ignore court asked to findings concurrent on subject.
If the evidence.may fairly support these findings the courts below can be convicted of error only applying an.erroneous rule of law to the facts found.
Examination opinions below shows that faithfully courts decisions this court in followed applying the adopted law to the They facts. the defi- nition and applied this criteria court has announced in appraising the effect of the facts found.
As shown by the cases cited the margin,5 a stream “a to ‘be in fact must have capacity general and common usefulness for purposes of trade and com Exceptional merce.” or capability high use of use at water or under other abnormal conditions will not suf though they applied wrong court, holding standard, this as question law, findings, was one of federal affirmed the instead *45 remanding according ease, disclosed that since the record to right navigable. water was standard the Ball, Montello, 557; 411,
4 Cf. The Daniel The 10 Wall. 11 Wall. Oregon, United 415; 295 States v. U. S. 5 Montello, Co., United v. Rio 430; States Grande 20 Wall. States, Donnelly 690; Leovy v. United S. 621; 174 177 U. v. U. S. Cress, 316; States, United States v. 243; 243 United U. S. 228 U. S. Bank, Texas, Holt State Oklahoma United States 574; v. U. S. v. Fite, Oregon, Harrison 1; v. 49; United 295 U. S. States U. S. v. Davis, 2d 109; I. Ry. 781; 2d 31 F. & Co. v. F. 26 F. Gulf . Doughton, United States F. 2d 936 must be used, fice.. stream Moreover,-the or.available “for use, commerce óf a and permanent char substantial acter.” Where the stream “has never been impressed with the navigability by character of in past use com merce, . . '. commerce in actually esse or at least is essential posse navigability” theoretical or and.“a or one potential navigability that is temporary, preсari unprofitable ous and not is sufficient.” The im most criterion portant by which to. ascertain navigability navigability of a stream is that in fact must exist under ordinary “natural and conditions.” Application of these by the tests court below to the evidence the case led conclusion, to but one New River been, has not —that not now, and is a water of the United States. findings If the below had been the other way, the Gov strenuously ernment would be here contending they could not set as it aside, successfully did Brewer- Elliott Oil Co. v. States, supra. & Gas
2. The petitioner contends that the application of the accepted tests to the facts disclosed ruling amounts to a law, and asserts that error in their application is re- As I read the court’s argument opinion, viewable. persuasive. not found While apparently endorsing the court, it abstract instead of relying on it, two additional tests in the adopts teeth’ of the uniform authority. If anything has been settled our current that, it is in order for decisions a water to be found navi- navigability-in-fact must exist gable, under “natural and ordinary conditions.” -This means all conditions, includ- ing multiplicity of obstacles, falls and rapids which navigation a make impossibility. The court practical announces that now, however, “natural and -ordinary only refers volume conditions” gradi- water. ents, Regularity .of No flow. authority is cited and none thus, I believe can be fоund for limiting the *46 phrase. connotation of the But holds, further the court contrary to all that has heretofore been said on the sub- ject, ordinary the natural and condition of the stream, impassable however it may without be improve- means that ment, if, by “reasonable” improvement, may stream be navigable rendered then it navigable is without such improvement; that.“there must be a bal- ance between cost and need at a time when the improve- ment would authority be useful.” No cited I think is none can be which any cited test. It such countenances is of true that if a stream its natural and ordi- course nary navigable condition is it does not cease to be so because have improvements bettered the conditions of navigation.6 But not true, the'converse is where —that a ordinary stream its natural and condition is non- along a to build a canal project its entire mavigable, course,, every- or dams and locks few at miles, enormous expense, navigable would render it a water of the United States. Who is to determine what is a reasonable or an improvement unreasonable or what circumstances; is a balance between cost and If proper .need? these certainly be answered it for questions Congress, must not If be court, this to answer them. this test every every then creek state of the adopted, Union enough by when сonserved dams and water, has which wing by dams and to float sluices, locks or channelled water, may drawing pronounced two feet a boat be expenditure navigable because, some enormous be In possible a would execution»- project such sum, Congress navigability by can create deter- other words, non-navigable stream. improve mining it one, the correct is not seen how If this criterion it nor is found not to be can be any stream States, U. Light Economy Co. *47 and other court federal courts have been why seen this years apply the many other tests men- pains at simple problem the solution the each tioned when speculate whether, been to as to at case have would the United States render a most cost, “reasonable” could forbidding difficult mountain torrent suitable for and In the light form water traffic. pretentious' least if be opinion, this test to the New applied court’s by blasting be course, River it admitted must, through digging shoals, by reefs and canals out channels rapids^ possibly by locks, around falls and dams and rendered fit River could be for some sort of New expense use. What would be one no commercial (cid:127) Obviously it would enormous. knows. Cpngress undertaken render- the past has river ago gave up attempt.. the’ Still we are and decades told cost, thing can be that, done, at “reasonable” navigable. is so stream grounds light upon
In
which the decision
hardly
it
necessary
of the court
based
seems
to com-
for it is in
evidence,
ment
the main
on
addressed to
longer
the case.
issues no
two courts below have
analyzed
it
it and examined
detail and reference to
carefully
opinions
considered
I
their
suffices.7
think the
reached
the courts
conclusion
below must stand un-
less the two novel doctrines now announced be thrown
overcome it.
scale
into
McReynolds
concurs in this opinion^
Mr.
Justice
Supp. 83; 107 F.
23 F.
2d
notes
as of
formation of the
original
in the
states or
Union
the admission to state
later,
those formed
návigability,
hood of
the purpose
regulation
commerce, may
later
An
arise.31
admiralty
is found in
analogy
jurisdiction,32
may
which
formerly nonnavigable.33
be extended over places
There
27 Economy Light
States, 256
U. S. 113.
Co. v.
United
F.
107
2d at 780.
28 See
29
26;
1,
v.
152 U. S.
18 and
v.
Shively Bowlby,
Utah,
States
64,
.
75
283 U. S.
30
594;
574, 591,
v.
258 U. S.
United States v.
Texas,
Oklahoma
1, 14.
295 U. S.
Oregon,
31
690,
Irrigation Co.,
v. Rio Grande
Cf. United States
U. S.
III,
2,
v.
Fitzhugh,
cl. 1. Cf. Genesee