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jurisdiction out of which could be created later on whatever water system and rights thereunder might prove the most desirable and to the states thereafter to be created the most acceptable! These considerations are sufficient to negative the idea that the commonlaw riparian rule became the law of the United States by any implication based on desirability. Indeed, it is a rule of the common law itself to abolish a given one of its other rules when the reason for it ceases. Or, to put the idea in a different tongue, “Cessante ratione lege, cessat et ipsa lex.”

But did not the treaties of cession, whereunder the public domain was acquired, vest in the United States a riparian property right? They do not say so,34 and since the public domain acquired by the United States was public domain of the ceding nations the same considerations which render the riparian rule undesirable to the United States must have made it equally so to them. Furthermore, the larger part of the lands of the arid West were acquired from old Mexico, and as to a considerable portion of such part, namely the portion once falling within the Mexican state of Sonora, the riparian rule did not exist, but, instead, the rule of appropriation.




When under our federal political system of divided sovereignty the priority states, California, Colorado, and the rest, were admitted one by one into the Union, they succeeded to the general sovereign jurisdiction formerly possessed by the United States over such of the running waters of the public domain of the United States as were within their respective boundaries.36 Although speaking not of water but of another of the natural media, Mr. Justice White said, in Geer v. Connecticut 37 already once quoted:

24 Guadaloupe Hidalgo, 9 Stat. L. 928; Louisiana Purchase, 7 Fed. St. Ann. 542; Boundary Treaty, 7 Fed. St. Ann. 587; Gadsen Purchase, 7 Fed. Stat. Ann. 704.

35 Boquillas Land & Cattle Co. v. Curtis, supra n. 15. 36 Geer v. Connecticut, 161 U. S. 519, 527, 528; Pollard v. Hagan, supra n. 21. 37 Kansas v. Colorado, supra.

"Undoubtedly this attribute of government to control the taking of animals ferae naturae, which was thus recognized and enforced by the conimon law of England, was vested in the colonial governments, where not denied by their charters, or in conflict with grants of the royal prerogative. It is also certain that the power that the colonies thus possessed passed to the states with the separation from the mother country, and remains in them at the present day, in so far as its exercise may be not incompatible with, or restrained by, the rights conveyed to the federal government by the Constitution." The succession of the state in respect to the running water was to power, not to property, for of the latter the United States had none.

Out of the power thus acquired the states could, as could and did the United States before them, create property rights in the use of the waters, - could determine the water system and dispose of water rights thereunder. The exercise of this power would be subject only to such appropriation rights as the United States prior to the statehood of any given state had already created, upon appropriations being made under federal statutes, notably those of '66 and of '77, above referred to, when agreeable to "local customs, laws and decisions."38 The old appropriation rights did not harass or annoy the states in the exercise of the new power, for the creation of the rights had been by the federal statutes themselves conditioned, as we have seen, upon agreeableness to “local customs, laws and decisions of court” and the conferment of state sovereignty did not change the local popular will or policy favoring the priority system.

ANALYSIS OF FURTHER AUTHORITIES We ought to analyze further some of the federal statutes already referred to, and also a number not even mentioned, to ascertain how well they square with the main propositions advanced in this discussion, but the analysis would require more time than the occasion permits. I can only say that the statutes in the main appear to be consistent with what has been advocated here, and that where they are not, they amount at most to implied declarations that there exists in Congress a power of determining who may acquire property rights in the waters or in their use, and the terms of the acquisition. Such declarations are without effect on the states, for the power referred to passed along with other powers of general sovereign jurisdiction to the states, upon the conferment of statehood. When once a state has come into being any and all subsequent declarations by Congress, either of ownership or of powers of disposition, come too late. The sceptre has passed.

38 A. C., July 26th, '66.


If what has been advocated here is true we now have reached the following conclusions: first, that the United States acquired from the ceding nations sovereign jurisdiction over the running waters but not property in them or in their use; second, that prior to conferment of statehood upon the priority states the United States never exercised this jurisdiction to create in itself a general proprietary right either riparian or by appropriation or otherwise, but only to create appropriation rights in others where agreeable to "local customs, laws and decisions;" third, that when the priority states were admitted to the Union they succeeded the United States in the general sovereign jurisdiction over the waters, with no property interest therein or in the use thereof outstanding in favor of the United States; fourth, that this sovereign jurisdiction acquired by the priority state is subject to three restrictions, sovereign not proprietary in character, one of them being that the United States may not in the case of an interstate stream deprive the other state or states of its or their "equitable” portion of the water of the stream, another being that navigability of navigable streams must not be impaired, and the last being subjection to priority rights created by the United States in appropriators prior to statehood; fifth, that under and by virtue of the sovereign jurisdiction thus acquired and to the limitations mentioned, the state became the lawful disposer of the waters; with power to select any water system desired, whether priority, riparian, or, probably, as in the California-doctrine states (and notwithstanding the unsound legal reasoning of that doctrine, to say nothing of its economic inconsistency) the priority and riparian combined, to determine the persons who could acquire rights under the system chosen, the purposes for which the acquisition could be made and the incidents thereof; and with power in the Colorado-doctrine states to dispose, to the exclusion of the federal government, of all the waters not then or yet appropriated.

L. Ward Bannister. DENVER, COLORADO.




R. COLEMAN'S studious and painstaking article 1 in the

November, 1914, number of the REVIEW on the “Evolution of Federal Regulation of Intrastate Rates: The Shreveport Rate Cases,” and his criticism of the Supreme Court's decision in that case 2 and in the Minnesota Rate Cases, naturally impel us to a reconsideration of the theory upon which our system of precedent is based. His criticism of the court's decisions in these two cases is based, not upon any inherent unsoundness or want of expediency, as I understand it, but, rather, upon the alleged departure from the rules the court had laid down in prior cases on this subject; and Mr. Coleman complains of the judicial legislation or "judicial amendment” of the Constitution which such departure involves. He finds this departure by assuming that the definition of the "regulation" of interstate and intrastate commerce, and of such “commerce” itself, was and is the same thing, inherently and in legal contemplation, at all times, when Gibbons v. Ogden 4 was decided and at the date of these last pronouncements of the court on the subject. It is this rigidity of definition and lack of adaptability to changing or changed conditions which have brought so much criticism on the legal profession, from even the most intelligent layman; and the question to which I want to direct attention is whether such criticism is not sound and whether the Supreme Court is not demonstrating the greatest wisdom in adopting changed definitions not only in respect of the “commerce” clause, but also as to many other legal subjects which changed economic and social conditions seem to require.

Mr. Coleman's criticism of the two decisions under consideration comes, in the last analysis, to this: The court has held consistently that purely intrastate or local matters are under the state's control, as distinguished from that of the federal government; intrastate


1 28 Harv. L. Rev. 34.

230 U. S. 352 (1913).

234 U. S. 432 (1914).
9 Wheat. (U. S.) 1 (1824).



commerce is, physically and abstractly, severable from interstate commerce and has been held to be so by the Supreme Court; therefore the federal government should not now be held to have the power to regulate or control intrastate commerce in any way by virtue of the power to regulate commerce betwixt the states. It is immediately discernible where the difficulty lies in this proposition: it lies in the fact that the minor proposition is irrelevant. The question that presses is, not whether interstate and intrastate commerce are capable of abstract or physical separation or have been held to be so at some past time, but, rather, whether, with the development of modern economic complexity and interdependence, the two have not actually come to such interrelation that the power to regulate the one necessarily involves and implies, if not an absolute power to regulate the other, yet an incidental power to affect it seriously. If this question is answered in the affirmative, the decisions of the Supreme Court will be found entirely consistent. From the time of the earliest decisions the court has held that the federal government has the power to regulate interstate commerce, even though such regulation involved an incidental control of or effect upon some matter of purely local concern. Initially there was no such intimate relation betwixt interstate and intrastate commerce as made them inseparable in certain aspects. . Accordingly it was held that Congress could not regulate or affect intrastate commerce under the guise of regulating interstate commerce. But in time the fact changed: state and interstate commerce became wellnigh inextricably intertwined, and with the change of fact the decision of the court changed, as it necessarily had to do to preserve the principles underlying the whole chain of decisions, i. e., the supremacy of the federal control of interstate commerce. In a word, then, my text is the desirability of adherence to the big principle underlying precedent decisions, rather than to the letter of such decisions. Changes of economic or social conditions often make this slavish adherence to the letter of the prior decision the widest departure from the principle which underlay the earlier cases. Perhaps the greatest glory of our common-law system of precedent has been that the stress laid on principles, rather than on the letter, of the earlier decisions has tended to give us a set of flexible rules which can be made to fit our advancing civilization without the disturbance incident to the formal abro

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