Memorandum of law points and authorities respecting the rights of Arizona in the Colorado River prepared and submitted to Hon. George W. P. Hunt, Governor of Arizona

              EMORANDUM
OF
POINTS AND AUTHORITIES
RESPECTING
RIGHTS OF ARIZONA
THE COLORADO RIVER
PREPAI'{ ED AND SUBMITTED TO
. GEORGE W. ~ P. HUNT'
GOVERNOR OF ARIZONA
BY
SAMUEL WHITE
ATTORNEY AT LAW
I OENIX. ARIZONA, SEPT. 8.1925;
i t' 14: lllfli. O « liililf>()~ l) eIII!! ll> O~ Il~ I'~ O'-' fl"" O. I! I:! H)< c! Illiilil.! l__ Ii~ O"""""';""' Il~{ j~~:< l
Ik _
MEMORANDUM
OF
LAW POINTS AND AUTHORITIES
RESPECTING
THE RIGHTS OF ARIZONA
IN THE COLORADO RIVER
PREPARED AND SUBMITTED TO
HON, GEORGE W. P. HUNT
GOVERNOR OF ARIZONA
BY
SAMUEL WHITE
ATTORNEY AT LAW
PHOENIX, ARIZONA. SEPT. 8. 1925
The Rights of Arizona 1n the
Colorado River
EXECUTIVE OFFICE, STATE HOUSE
Phoenix, Ariz" August 21, 1925.
My dear Tudge :
Information has come to me that you have made a close
study of, and have done a great deal of research in connection with,
the legal questions affecting the ownership in the resources of the
Colorado River
During war times, when flags are waving and drums are beat­ing,
it is an easy matter for people to be patriotic; in fact, to be
otherwise draws down upon them public condemnation.
An opportunity is presented at this time to the citizens of the
State of Arizona to give a demonstration of their patriotism to
their ~ tate. Due to a combination of circumstances the interests
of this state are in jeopardy. Self seekers within our citizenship
and those who base their theories of life from the viewpoint of
" stake hunters" rather than " home builders," are willing to forfeit
the economic interests of Arizona in the Colorado River because
of some personal gain they hope to achieve for themselves.. Oth­ers,
because their ego would be gratified in seeing something
done immediately, are willing to see the benefits go to some other
states to the injury of Arizona" They deride the rights of poster­ity,
suggesting that they are not to be considered. Posterity, as I
conceive it, is your children and my children, and our lives will be
rather worthless if we do not endeavor to make things better
for our children than we found them.
You are an attorney and it is out of the law that you must
make your livelihood" It is asking a considerable concession
from an attorney to place his legal knowledge at the disposal of
the State of Arizona without being recompensed for so doing.
However, we are in this position: We can make no payments
for legal services other than such as are provided in the state
budget and there are no funds available for the employment of
attorneys. I am, therefore, going to appeal to you as a patriotic
citizen to make available, for the use of the committee that I have
dlJpointed to work out a solution of the Colorado River problem
aild for the use of the people of this state, such legal information
as you have compiled with reference to the law governing the
rights of this state in the resources of the Colorado River,
I feel confident that if you do this you will enjoy the satis-hn__
4 THE RIGHTS OF ARIZONA
faction of having measured up to the responsibilities of cItIzen­ship
and you will be entitled to the approval and thanks of the
people of our state"
Respectfully,
GEO. W, P" HUNT,
Governor
Judge Samuel \ Vhite,
418 Luhrs Building,
Phoenix, Arizona"
SAMUEL WHITE, LAWYER
Phoenix, Ariz" September 8, 1925.,
Han" Geo" \ V" P Hunt,
C::: overnor of Arizona,
The Capitol, Phoenix, Ariz.
?> ly dear Governor:
I am transmitting herewith a memorandum of authorities re­,
mecting the rights of the State of Arizona in the Colorado River
in response to your request of August 21st..
I have quoted only from decisions by the Supreme Court of
the United States, not only because of the respect the decisions of
[ hat court command, but also for the reason that it will be in
that forum that the rights of this state in the Colorado will be
determined, should litigation respecting those rights ever arise.
These authorities. as vou will observe, clearly and definitely
e:;:- ablish the fact that the Colorado is a navigable stream I think
it is conceded to be. navi? able bv all interests seeking to benefit
through its development.. It is so described in the Swing- Johnson
bill, \ and the character of the stream meets the' legal test of nav­igability
as defined by the Supreme Court of the United States
tf it be not navigable, the Federal Power Commission, under the
terms of the act creating it, is devoid of any jurisdiction over the
river or its development. If it is navigable the right of the United
States therein is limited to the control thereof for the purposes of
navigation,
The State of Arizona. being admitted to the union " on an
equal footing with the original states," by virtue of her sovereignty
and to the exclusion of all others, is the absolute owner of the bed
of the river, from high water mark to high water mark, where
the Colorado lies wholly within the state, and to the thread of
the stream where it constitutes a boundary between states, Such
o\ iIlership is declared to be in trust for the common benefit of all
of the people of the State of Arizona, and not for the benefit of
the peonle of other states Being so vested with this great trust,
the st3te is without power to deed it away, and, as a matter of
law as well as of conscience. it is the dutv of those in authority
IN THE COLORADO RIVER 5
alienated
in Arizona to carry out the purposes\ tOf this trust, neither neglect­ing
it nor suffering it to be arrEr . t ! or diminished without
just compensation. As a necessary incident of its ownership, the
consent of Arizona is indispensable before any dam or other
structure may be laid in the bed of the river or its waters taken.
It is quite clear that in the Enabling Act, Congress did not
attempt to reserve any part of the bed of the Colorado, and could
not have done so had it so desired.. The lands designated by the
Secretary of the · Interior under the reservation clause of the
Enabling Act comprise only lands which, when surveyed, will be
included within leg- al subdivisions in certain townships. It is a
matter of common knowledge that the bed of navigable water is
never included in a legal subdivision.
As I read the law, the position taken by you when you said
In addressing the delegates from California, Nevada and Arizona:
" Arizona asserts that, while the Federal Government,
as a proprietor, may own the lands abutting the dam sites
and the lands that will be overflowed, the State of Ari­zona,
as a sovereign, owns the land in the bed of the
stream, upon which the dam will be erected, and the water
in the stream, and that it reserves the right to tax and de­rive
revenue from any development in the river in what­ever
manner the laws of this state may devise."
is safe and well founded. You demonstrated that you fully ap­preciate
the duty of administering the trust arising- from the
ownership of the bed and water of the Colorado River for the
cummon benefit of all the people of this state, when on the same
occasion, you said:
" Arizona expects to derive revenue from every unit of
electrical energy generated in this state that is utilized in
other states.."
Very respectfully,
SAMUEL WHITE.
EXECUTIVE OFFICE. STATE HOUSE
Phoenix, Ariz., September 9, 1925.
My dear Tudge :
It affords me a great deal of pleasure to acknowledge receipt
( If your letter of September 8th, transmitting " Memorandum of
Points and Authorities Respecting the Rights of Arizona in the
C'olorado River" which you prepared in response to my letter of
Au!! ust 21st. in which I appealed to you, as a patriotic duty, to
make available such legal knowledge as you had compiled con­cerning
Arizona's interests in the river.
We have a tremendous fight ahead to conserve for the benefit
of the people of the state our natural rights in this great resource.
" VI'e are faced with selfishness and greed without our borders
" •• ZIIIU•.
6 THE RIGHTS OF ARIZONA
and defeatists at home, and it behooves all the cItizens of this
state who have a vision of a great future, to stand firm and un­bending:
in this time of stress, and fight for what belongs to them..
On behalf of the State of Arizona I want to thank you for
your contribution to the cause of Arizona's future destiny.
Very sincerely yours,
GEO. W. P .. HUNT,
Governor.
fudg: e Samuel \ Alhite,
Phoenix. Arizona.
The Colorado Riv~ r Is a Navigable Stream.
I t is so described in the Swing- Johnson Bill introduced in
Congress by the California delegation to authorize the construc­tion
of a dam at Boulder Canyon It has always becn so treated
by the government of the United States in the official survey of
public lands bordering upon banks, and the character of the
stream meets thc legal definition of what constitutes navigability..
In EI1gJand those waters, only including rivers, were rcgarded as
navipable, in which the tide ebbed and flowed. This doctrine was
cidy repudiated by the United States as being unfitted to the
conditions in this country where many of the rivers are in fact
navigable for many miles above the highest reach of the tide,
.~ s well as the great lakes on the horth and many inland lakes, in
which there is no tide and which were also navigable and in fact
used as great highways for commerce.
Thc Supreme Court of the United States examined this ques­tion
many years ago in the case of " Ihe Daniel Ball vs. United
States, 19 L.. ed.. 999, and said:
" Thosc rivers must be regarded as public navigable
rivers in law which are navigable in fact; and they are
navigable in fact whcn they are used or are susccptiblc 0 f
being uscd, in their ordinary condition, as highways of
commercc, over · which trade or travel are or maybe con­ducted
in the customary modes of tradc and 1: ravel un
water.." ~
To the same effect may be cifed:
Moore vs; Sanbofne, 2 Mich. 519;
Brown vs.. Chadbourne, 31 Maine 9;
The Montello CD S.) 22 Led. 391;
Hickock vs. Hine, 23 Ohio State 523;
Diedrich vs.. Railway Co, 42 Wis. 248;
Atty General vs. Woods, 108 Mass. 436;
[{ owe vs. Granite Co. 21 Pick ( Mass.) 344;
Railway Co.. vs .. Brooks. 39 Ark. 403 ..
In the case of Economy Light and Power Co., vs. United
IN THE COLORADO RIVER 7
States, 65 L. ed" 847, the question involved was the navigability
of the Des Plaines River in the State of Illinois. It was held
to be a navigable river by the Supreme Court of the United States,
although there was no evidence of actual navigation within the
memory of living man and that there would not be any inter­ference
with navigation by the construction of the dam. But the
court found that in its natural state the river was navigable in
fact, and that it was actually used for the purposes of navigation
and trading in the customary way and with the kinds of craft
or: linarily ; n use for that purpose on rivers of the United States,
from early fur- trading days ( about 1675) down to the end of the
first quarter of the nineteenth century" The court again de­fined
the test of navigability:
" The test is whether the river, in its natural state is
used, or capable of being used, as a highway of commerce,
over which trade and travel are or may be conducted in
the customary modes of trade and travel on water. Nav­i;;
abilit: v', in the sense of the law, is not destroyed because
the watercourse is interrupted by occasional natural ob­structions
or portages; nor need the navigation be open
at all seasons of the year or at all stages of the water."
If the Colorado be not a navigable stream, the Federal Power
Commission has no interest in or jurisdiction over the stream,
TIle title of the act and the powers of the commission are: " To
plovide for the improvement of navigation, the development of
water pow", r and the use of the public lands in relation thereto;
and the h:- m ' public lands' is defined by the act to mean such
lands and interests in lands owned by the United States as are
subject to private appropriation and disposal under public land
laws,"
The fact that a stream, because of falls or rapids, does not
tel nish the means of unbroken navigation, does not affect its nav­igability.
In The Montello case supra, the Supreme Court of the
United Stat<: s said:
" The learned judge of the court below rested his deci­sion
against the navigability of the Fox River below De­Pere
T\. apids chiefly on the ground that there were, before
the river was improved, obstructions to an unbroken nav­igation
". ". Apart from this, however, the rules
laid down by the district judge as a test of navigability
cannot be adopted, for it would exclude many of the great
rivers of the country, which are so interrupted by rapids
as to require artificial means to enable them to be nav­igated
without break. Indeed, there are but few of our
fresh water rivers which did not originally present serious
obstructions to an uninterrupted navigation. In some
cases, like the Fox, they may be so great while they last
as to prevent the use of the best instrumentalities for car-
8 THE RIGHTS OF ARIZONA
rying on commerce; but the vital and essential point is
whether the natural navigation of the river is such that it
affords a channel for useful commerce" If this be so, the
river is navigable in fact, although its navigation may be
encompassed with difficulties by reason of natural barriers,
such as rapids and sandbars."
The statement of law as summarized in 29 Cyc. 289 is abun­dantly
supported by the decided cases:
" Water is navigable in law, although not tidal, where
navigable in fact, and is navigable in fact where it is of
sufficient capacity to be capable of ' being used for use­ful
purposes of navigation, that is, for trade and travel in
the usual and ordinary modes" This rule is not only the
one which prevails in nearly all of the states in the coun-try,
but was also the rule under the civil law .
It is immaterial that the stream is not navigable in its
entirety if it is in fact navigable in whole or in part,,"
And again:
" Navigable waters do not lose their character as such
because interrupted by falls. if they can be used for pur­poses
of commerce both above and below the falls, nor be­cause
of the existence of other obstructions not prevent­ing
navigation,,"
The State of Arizona Is the Absolute Owner of the Bed of the
Colorado River, Where it Lies Wholly Within the State, and
to the Center of the Stream, where it Constitutes the Boun­dary
Between Arizona and the States of Nevada and Cali­fornia.
Arizona was admitted to the union upon an equal footing
with the original states" It is so provided in the Enabling i\ ct.
and it is so declared in the Proclamation of President Taft ad­mitting
the state into the union"
Upon her admission to the union, Arizona at once became
e~ ltitled to and possessed of all the rights of dominion and
sovereignty which belonged to the original states. and could,
therefore, exercise the same powers over rivers within her limits as
were possessed by the original states"
The shores of navigable waters and the soil under them be­tween
high and low water marks were not gTanted by the Consti
tution to the United States, but were reserved to the states re­spectively,
and the new ~ tates bave the same rigbts and jurisd; ction
on this subject as the original ~ tates" Congress cannot grant
lands below high water mark on navigable water in a state.
In Pollard vs. Hagan, 11 Led" 565, the Supreme Court of the
United States considered this question with g~ reat care. and t1, c
1.1 IV then announced by that court has continued unchallenaed to
this day as the law of this country. In that case the phtintifi
IN THE COLORADO RIVER 9
held a patent from the United States issued by virtue of an Act
of Congress, for land lying below high water in the Mobile River
near the point where it discharges into Mobile Bay. In that case
tre court said: .
" When Alabama was admitted into the Union on an
equal footing with the original states, SHE SUCCEEDED
TO ALL THE RIGHTS OF SOVEREIGNTY, JURIS­DICTION
AND EMINENT DOMAIN vVHICH GEORGIA
POSSESSED AT THE DATE OF THE CESSION, EX­CEPT
SO FAR AS THIS RIGHT WAS DIMINISHED
BY THE PUBLIC LANDS REMAINING IN THE POS­SESSION
AND UNDER THE CONTROL OF THE UNIT­ED
STATES FOR THE TEMPORARY PURPOSES PRO­VIDED
FOR IN THE DEED OF CESSION, AND THE
LEGISLATIVE ACTS CONNECTED WITH IT. Nothing
remained in the United States, according to the terms of
agreement, but the public lands. And, if an express stip­ulation
had been inserted in the agreement, granting the
municipal right of sovereignty, and eminent domain to the
United States, 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,,"
After discussing the manner by which the United States
gained title to the public lands, the court proceeds:
" Alabama is therefore entitled to the sovereignty and
jurisdiction over all the territory within her limits, subject
to the common law, to the same extent that Georgia pos­sessed
it before she ceded it to the United States. TO
MAINTAIN ANY OTHER DOCTRINE IS TO DENY
THAT ALABAMA HAS BEEN ADMITTED INTO THE
UNION ON AN EQUAL FOOTING WITH THE ORIG­INAL
STATES, THE CONSTITUTION, LAWS AND
COMPACT TO THE CONTRARY NOTWITHSTANDING.
But her rights of sovereignty and jurisdiction are not
governed by the common law of England as it prevailed
in the colonies before the Revolution, but as modified by
our own institutions. In the case of Martin et al vs. Wad­dell,
16 Peters, 410, the present Chief Tustice, in delivering
the opinion of the court said: '\ iVhen the Revolution took
place, the people of each state became themselves sov­ereign;
and in that character hold the absolute right to
all their navigable waters, and the soils under them for
their own common use, subject only to the rights since
surrendered bv the constitution.' Then to Alabama belong
the navigable- waters, and soils under rights surrendered
10 THE RIGHTS OF ARIZONA
by the Constitution of the United States; and no compact
that might be made between her and the United States
could diminish or enlarge these rights."
After pointing out that the jurisdiction of the United States
over navigable waters was confined to the regulation of commerce
with foreign nations and among the several states, the court
proceeds:
" This right of eminent domain over the shores and the
soils under the navigable waters, for all municipal purposes,
belongs exclusively to the states within their respective
territorial jurisdiction, and they, and they only, have the
constitutional power to exercise it. To give to the United
States the right to transfer to a citizen the title to the
shores and the soils under the navigable waters, would
be placing in their hands a weapon which might be wielded
greatly to the injury of state sovereignty and deprive the
states of the power to exercise a numerous and impor­tant
class of policy powers. But, in the hands of the
state this power can never be used so as to affect the
exercise of any national right of eminent domain or juris­diction
with which the United States have been invested
by the Constitution. For, although the territorial limits
of Alabama have extended all her sovereign power into
the sea, it is there, as on the shore, but municipal power,
subject to the Constitution of the United States ' and the
laws which shall be made in pursuance thereof.'
" By the preceding course of reasoning, we have ar­rived
at these general conclusions: First, the shores of
navigable waters, and the soils under them, were not
granted by the Constitution of the United States, bnt
were reserved to the states respectively.. Second, the new
states have the same right, sovereignty and jurisdiction
over this subject as the original states.. Third, the right
of the United States to the public lands, and the power
of CongTess to make all needful rules and regulations for
the sale and disposition thereof, conferred no power to
QTant to the plaintiffs the land in controversy in this case."
The same conrt, in Huse vs. Glover, 30 Led. 487, reaffirmed
the doctrine established in Pollard vs. Hagan, supra. saying. as to
the State of Illinois:
" That the language of the resolution admitting her
was that ' she is' admitted into the union on an equal foot­ing
with the original states in all respects whatsoever,
and that she could, therefore, afterwards exercise the same
nowers over rivers within her limits as Dela'ware exercised
over Blackbi rel Creek anel Pennsylvania over Schuykill
River." -
Again, the same court. speaking of the jurisdiction o · f the
IN THE COLORADO RIVER n
r; tate of California over the American River, a navigable tributary
of the Sacramento, in Cardwell vs. American River Bridge Com­pany,
28 L. ed" 959, said:
" She was not, therefore, shorn by the clause as to nav­igable
waters within her limits, of any powers which the
original states possessed over such waters within their
limits."
In Illinois Central Railway vs. People of the State of Illinois,
36 Led.. 1018. the Supreme Court again expressed itself on sev­eral
phases of the question under consideration. The State of Illi­nOIS
had by an act of its legislature attempted to grant the fee
title to the bed of a portion of Lake Michigan to the railway com­panv
and some years later by an Act of the Legislature attempted
to revoke this grant The court was considering the rights of
the state and the railway The opinion is very lengthy, but very
instructive, and we quote at length:
" The State of Illinois was admitted into the union in 1818
on an equal footing with the original states in all respects.
Such was one of the conditions of the cession from Virginia
of the territory northwest of the Ohio River, out of which the
state was formed. But the equality prescribed would have
existed if it had not been thus stipulated. There can be no
distinction between the several states of the union in char­acter
of the jurisdiction, sovereie- nty and dominion which they
may possess and exercise over persons and subjects within
their respective limits The boundaries of the state were
prescribed by Con<> ress and accepted bv tllf' state in it, orie­inal
Constitution. They are given in the bilL It is sufficient
for our purpose to observe that they include within their
eactcrn line all that portion of Lake Michigan lying east of
the main land of the state and the middle of the lake south of
la titude 42 degrees and 30 minutes ..
" It is the settled law of this COllntrv that the ownership
of clnd dominion and sovereignty over lands covered by tide
waters, within the limits of the several states, belong to the
respective states within which they are found with the conse­quent
right to use or dispose of any portion thereof, when
that can be done without substantial impairment of the interest
of the public in the waters. and subject always to the para­mount
right of Congress to control their navigation so far as
may be necessary for the regulation of commerce with foreign
nations and among the states. This doctrine has been often
announced by this court. and is not questioned by counsel of
anv narties Pollard vs. Hallcm, 44 U S, 3 How.. 313 ( 11 : 565) :
Weber vs. Board of State Harbor Commissioners, 85 U S. 18
Wall 57 ( 21 : 798).
" The same doctrine is in this country held to be applicable
to lands covered by fresh water in the Great Lakes over which
12 THE RIGHTS OF ARIZONA
1S conducted an extended commerce with different states and
foreign nations. These lakes possess all the general charac, ­teristics
of open seas, except in the freshness of their waters,
and in the absence of the ebb and flow of the tide. In other
respects they are inland seas, and there is no reason or prin­ciple
for the assertion of dominion and sovereignty over and
ownership by the state of lands covered by tide waters that is
not equally applicable to its ownership of and dominion and
sovereignty over lands covered by the fresh waters of these
lakes.. At one time the existence of tide waters was deemed
essential in determining the admiralty jurisdiction of courts
in England. That doctrine is now repudiated in this country
as wholly inapplicable to our condition.. In England the ebb
and flow of the tide constitute the legal test of the navi­gability
of waters. There no waters are navigable in fact, at
least to any great extent, which are not subject to the tide
There, as said in the case of The Genesee Chief vs. Fitzhugh,
53 U. S, 12 How.. 443, 455 ( 13: 1058, 1063). ' Tide water and
navigable water are synonymous terms, and tide water, with
a few small and unimportant exceptions meant nothing more
than public rivers, as contradistinguished from private ones,'
and writers on the subject of admiralty jurisdiction ' took the
ebb and flow of the tide as the test, because it was a con­venient
one, and more easily determined the character of the
river. Hence the established doctrine in England, that the ad­miralty
jurisdiction is confined to the ebb and flow of the
tide. In other words, it is confined to public navi. gable
waters.'
" But in this country the case is different.. Some of our
rivers are navigable for great distances above the flow of the
tide; indeed, for hundreds of miles, by the largest vessel~; used
in commerce. As said in the case cited: ' There is certainh
nothing in the ebb and flow of the tide that makes the water~
peculiarly suitable for admiralty jurisdiction, nor anything in
the absence of a tide that renders it unfit.. If it is a publ; c
navigable water, on which commerce is carried on between
different states or nations, the reason for the jurisdiction ic,
precisely the same. And if a distinction is made on that ac­count,
it is merely arbitrary, without any foundation in rea­son;
and, indeed, would seem to be inconsistent with it .. '
" The Great Lakes are not in any appreciable respect af ·
fected by the tide, and yet on their waters, as said above, a
large commerce is carried on, exceeding in many instances the
entire commerce of states on the borders of the sea. ' Vhen
the reason of the limitation of admiralty jurisdiction in Eng­land
was found inapplicable to the condition of navirrable
waters in this country, the limitation and all its incidents
were discarded. So alco by the common law. the doctrine of
IN THE COLORADO RIVER 13
the dominion over and ownership by the crown of lands within
the realm under tide waters is not founded upon the existence
of the tide over the lands, but upon the fact that the waters
are navigable, tide waters, and navigable waters, as already
said, being used as synonymous terms in England" The public
being interested in the use of such waters, the possession by
private individuals of lands under them could not be permitted
except by license of the crown, which could alone exercise
such dominion over the waters as would insure freedom in their
use so far as consistent with the public interest. The doc­trine
is founded upon the necessity of preserving to the public
the use of navigable waters from private interTuption and en­croachment,
a reason as applicable to navigable fresh waters
as to waters moved by the tide, \ Ve hold, therefore, that the
same dictrine as to the domination and sovereignty over and
ownership of lands under the navigable waters of the Great
Lakes applies, which obtains at the common law as to the
dominion and sovereignty over and ownership of lands under
tide waters on the borders of the sea, and that the lands are
held by the same right in the one case as in the other, and
subject to the same trusts and limitations" Upon that theory
we shall examine how far such dominion, sovereignty, and
proprietary right have been encroached upon by the railroad
company, and how far that company had, at the time the
assent of the state to such encroachment, and also the val­idity
of the claim which the company asserts of a right to
make further encroachments thereon by virtue of a grant
from the state in April, 1869,"
Proceeding, the court also said:
" The question, therefore, to be considered is whether the
legislature was competent to thus deprive the state of its
ownership of the submerged lands in the harbor of Chicago,
and of the consequent control of its waters; or, in other words,
whether the railroad corporation can hold the lands and control
the waters by the grant, against any future exercise of power
over them by the state,
" That the state holds the title to the lands under the
navigable waters of Lake Michigan, within its limits, in the
manner that the state holds title to soils under tide water,
by the common law. we have already shown, and that title
necessarily carries with it control over the waters above them
whenever the lands are subjected to use, But it is a title dif­ferent
in character from that which the state holds in lands
intended for sale, It is different from the title which the
United States hold in the public lands which are open to pre­emption
and sale. It is a title held in trust for the people
of the state that they may enjoy the navigation of the waters,
carTy on commerce over them and have liberty of fishing
14 THE RIGHTS OF ARIZONA
therein freed from the obstruction or interference of private
parties. The interests of the people in the navigation of the
waters and in commerce over them may be improved in many
instances by the erection of wharves, docks and piers therein,
for which purpose the state may grant parcels of the sub­merged
lands; and so long as their disposition is made for
such purposes, no valid objections can be made to the grants.
It is grants of parcels of lands under navigable waters that
may afford foundations for wharves, piers, docks and other
structures in aid of commerce, and grants of parcels which,
being occupied, do not substantially impair" the public interest
in the lands and water remaining, that are chiefly considered
and sustained in the adjudged cases as a valid exercise of
legislative power consistently with the trust to the public
upon which such lands are held by the state, But that is
a very different doctrine from the one which would sanction
the abdication of the general control of the state over lands
under the navigable waters of an entire harbor or bay, or of a
sea or lake" Such abdication is not consistent with the exer­cise
of that tt'ust which requires the government of the state
to preserve such waters for the use of the public. The trust
devolving upon the state for the public, and which can only
be discharged by the management and control of property
in which the public has an interest, cannot be relinquished
by a transfer of the property" The control of the state for
the purposes of the trust can never be lost, except as to such
parcels as are used in promoting the intere,; ts of the public
therein, or can be disposed of without anv substantial impair­ment
of the public interest in the lands and waten remaining.
It is only by observing the distinction between a grant of
such parcels for the improvement of the public interest. or
which when occupied do not substantially impair the public
interest in the lands and waters remaining, and a grant of the
whole property in which the public is interested that the lan­guage
of the adjudged cases can be reconciled" General lan­guage
sometimes found in opinions of the courts, expressive of
absolute ownership and control by the state of lands under
navigable water, irrespective of any trust as to their \ Fe an~ l
disposition, must be read and construed with reference to the
special facts of the particular cases, A grant of all the lands
under the navigable waters of a state has never been ad­judged
to be within the legislative power; and any attempted
grant of the kind would Ibe held, if not absolutely void on its
face, as subject to revocation. The state can no more abdi­cate
its trust over property in which the whole people are in­terested,
like navigable waters and soils under them. so as
to leave them entirely under the use and control of nrivate
parties. except in the instance of parcels mentioned for the im­provement
of the navigation and use of the waters, or when
I \ 4 I
I
----- j
IN THE COLORADO RIVER 15
parcels can be disposed of without impairment of the publi<:: in­terest
in what remains, than it can abdicate its police powers
in the administration of government and the preservation of
the peace" In the administration of government the use of
such powers may for a limited period be delegated to a mu­nicipality
or other body, but there always remains with the
state the right to revoke those powers and exercise them in
a more direct manner, and one more conformable to its wishes.
So with trusts connected with public property, or property of
a special character, like lands under navigable waters, they
cannot be placed entirely beyond the direction and control of
the state."
Discussing the nature of the tenure of the state of soil un­derlying
navigable waters, the court said:
" We cannot, it is true, cite any authority where a grant of
this kind has been held invalid, for we believe that no instance
exists where the harbor of a great city and its commerce have
been allowed to pass into the control of any private corpora­tion.
But the decisions are numerous which declared that
such property is held by the state, by virtue of its sovereignty,
in trust for the public. The ownership of the navigable waters
of the harbors and of the lands under them is a subject of
public concern tc th( whole people of the state. The trust
with which they are held, therefore, is governmental and can­not
be alienated, except in those instances mentioned of parcels
used in the improvement oi the interest thus held, or when
parcels can be disposed of without detriment to the public in­terest
in the lands and waters remaining..
" This follows necessarily from the public character of the
property, being held by the whole people for the purposes in
which the whole people are interested.. As said by Chief Jus­tice
Taney, in Martin vs. Waddell, 41 U. S. 16 Pet. 367, 410
( 10 : 997, 1012): ' When the Revolution took place the people
of each state became themselves sovereign, and in that char­acter
hold the absolute right to all their navigable waters,
and the soils under them, for their own common use, subject
only to the rights since surrendered by the Constitution to the
general government..' In Arnold vs. Mundy, 6 N.. J. L. 1, which
is cited by this court. and in Martin vs. ! Waddell, 41 U. S. 16
Pet.. 418 ( 10 : 1015) and spoken of by Chief Justice Taney, as
entitled to great weight, and in which the decision was made
' with great deliberation and research,' the Supreme Court of
New Tersey comments upon the rights of the state in the bed
of navigable waters. and after observing that the power
exercised by the state over the lands and waters is nothing
more than what is called jus regium, the right of regulating,
improving and securing them for the benefit of every indi­vidual
citizen. adds: ' The sovereign power itself. therefore.
16 THE RIGHTS OF ARIZONA
cannot, consistently with the principles of the law of nature
and the constitution of a well ordered society, make a di­rect
and absolute grant of the waters of the state, divesting
all the citizens of their common right. It would be a griev­ance
which never could be long borne by a free people.' Neces­sarilv
must the control of the waters of a state over all lands
unde" r them pass when the lands are conveyed in fee to pri­vate
parties, and are by them subjected to use.
" In the case of Stockton vs. Baltimore and N. Y. R. Co.,
32 Fed" Rep. 9, which involved a consideration by Mr., Justice
Bradley, late of this court, of the nature of the ownership
by the state of lands under the navigable waters of the United
States, he said. ' It is insisted that the property of the state
in lands under its navigable waters is private property, and
comes strictly within the constitutional provision. It is sig­nificantly
asked, can the United States take the state house
at Trenton, and the surrounding grounds belonging to the
state, and appropriate them to the purposes of a railroad depot,
or to any other use of the general government without com­pensation?
We do not apprehend that the decision of the
present case involves or requires a serious answer to this
question. The cases are clearly not parallel. The character
of the title or ownership by which the state holds the state
house is quite different from that by which it holds the land
under the navigable waters in and around its territory. The
information rightly states that, prior to the Revolution, the
shore and lands under water of the navigable streams and
waters of the province of New Jersey belonged to the King
of Great Britain as part of the jura regalia of the crown, and
devolved to the state by right of conquest The information
does not state, however, what is equally true, that, after the
conquest, the said lands were held by the state, as they were
by the King, in trust for the public uses of navigation and
fishery, and the erection thereon of wharves, piers, light­houses,
beacons, and other facilities of navigation and com­merce.
Being subject to this trust, they were publici juris; in
other words, they were held for the use of the people at large..
- is true that to utilize the fisheries, especially those of shell­fish,
it was necessary to parcel them out to particular oper­ators,
and employ the rent or consideration for the benefit of
the whole people; but this did not alter the character of the
title. The land remained subject to all other public uses as
before, especially to those of navigation and commerce which
are always paramount to those of public fisheries. It is also
true that portions of the submerged shoals and flats, which
really interfered with navigation, and could better subserve
the purposes of commerce by being filled up and reclaimed.
, vere disposed of to individuals for that purpose, But neither
did these dispositions of useless parts affect the character of
the title to the remainder.
" Many other cases might be cited where it has been de­cided
that the bed or soil of navig- able waters is held by the
people of the state in their character as sovereign in trust for
public uses Jar which they are adapted.. Martin vs. Waddell,
41 U. S. 16 Pet. 367, 410 ( 10 : 997, 1012); Pollard vs. Hagan, 44
U S. 3 How.. 212, 220 ( 11 : 565, 569); McCready vs. Virginia,
94 U. S. 391,394 ( 24: 248) .."
" This rule was again specifically recognized by the Supreme
Court of the United States in Oklahoma vs. Texas, 66 L. ed..
771, saying:
" Oklahoma claims complete ownership of the entire bed
of the river within that state, and, in support of its claim con­tends
that the river throughout its course in the state, is nav · ·
igable, and therefore, that upon the admission of the state intu
the union on November 16, 1907, the title to the river bed passed
from the United States to the state, in virtue of the constitu
tional rule of equality among the states whereby each new stah
becomes, as was each of the original states, the owner of the soil
underlying- the navigable waters within its boundaries If that
section of the river be navigable, its bed undoubtedly became the
property of the state under that rule .."
However, the court decided that that part of the river un­der
consideration was not navigable, and that the title to the
hed of the river did not pass to the State of Oklahoma. and said:
" Where the United States owns the bed of a non- nay. ­igable
stream and the upland on one or both sides, it, of
course, is free, when disposir: g of the upland, to retain all or
any part of the river bed; and whether in any particular
instance. it has done so, is essentially a question of what it
intended."
In Port of Seattle vs. Oregon and Washington Ry. Co., 65
L ed 500. the Supreme Court of the United States. again
speaking, said: .
" The right of the United States in the navigable waters
within the several states is LIMITED TO THE CONTROL
THEREOF FOR PURPOSES OF NAVIGATION. Subject to
that right \ iVashington became upon its organization as a state,
the owner of the navigable '. vaters within its boundaries and of
the land under the same.."
The Bed of the Colorado River was Not Withheld from the
State By the Enabling Act.
The reservation clause of the Enabling Act is found in
Section 28. which declares:
" There is herebv reserved to the United States and ex-
IN THE COLORADO RIVER 17
18 THE RIGHTS OF ARIZONA
cepted from the operation of any and all grants made or con­firmed
by this act to said proposed state all land actually or
prospectively valuable for the development of water power or
power for hydro- electric use or transmission, and which shall be
ascertained and designated by the Secretary of the Interior
within five years after the proclamation of the President de­claring
the admission of the state."
The designation by the Secretary of the Interior is:
" All land of the United States which, when surveyed, will
be included within legal subdivisions" in certain designated
townships.
It is well known that the bed of a navigable stream is never
included by government surveys " within legal subdivisions," and
as has been pointed out by the Supreme Court of the United
States in Illinois Central Ry. Co. vs. State of Illinois, supra, is of
a different character and tenure from the lands held by the United
States for sale or pre- emption. If it had been the intention of
Congress to make an attempt to reserve the bed of the stream,
it would certainly have used some appropriate language to make
clear such an unprecedented intention. Even if such was the in­tention
of Congress, the reservation was only of such lands as
were to be designated by the Secretary of the Interior within a
specified time, long since expired, and the Secretary made no at­tempt
to designate , the bed of the Colorado or any part thereof,
; md even if the Secretary had attempted to so designate a part of
the bed of the stream his act would have been in violation of the
Fedenl Constitution.
SILVER BELT JOB PRINT
MIAMI, AfUZONA