§ 416. “The Commonwealth shall Not.”

(See Note on the same words in the preceding section, § 412, supra) This section is a further limitation of the trade and commerce power. The necessity for the provision arose out of the twofold importance of the rivers—as highways of inter-state commerce, and as channels and reservoirs for the water which is essential for the development of the land. In the event of any conflict between these two purposes, the power of the Federal Parliament to regulate navigation would have prevailed absolutely against any claims by the States to the use of the water, and the object of this section is to limit the paramountcy of the navigation power so far as it may interfere with “the reasonable use” of the waters for State purposes.

The river systems of Australia bear a very close analogy, in many respects, to those of the arid portion of the United States, in which the rainfall is not sufficient for the production of the crops, and which covers about two-fifths of the whole area of the United States.

“Here the paramount interest is not navigation of the streams, but the cultivation of the soil by means of irrigation. Even if, by the expenditure of vast sums of money in straightening and deepening the channels, the uncertain and irregular streams of this arid region could be rendered to a limited extent navigable, no important public purpose would be subserved by it. Ample facilities for transportation, adequate to all the requirements of commerce, are furnished by the railroads, with which these comparatively insignificant streams could not compete. But, on the other hand, the use of the waters of all these streams for irrigation is a matter of the highest necessity to the people inhabiting this region, and if such use were denied them, it would injuriously affect their business and prosperity to an extent that would be an immeasurable public calamity.” (United States v. Rio Grande Dam and Irrigation Co., New Mexico, 51 Pac. Rep. 674; cited Prentice and Egan, pp. 116–7.)

In these arid regions difficulties arose not only between the States, but between higher and lower riparian owners in the same State. The riparian common law of England, which required every riparian owner to permit the flow of the water undiminished in quantity and unimpaired in quality, had grown up under totally different conditions, and was found inapplicable to the circumstances of the arid regions.

“Notwithstanding the unquestioned rule of the common law in reference to the right of a lower riparian proprietor to insist upon the continuous flow of the stream as it was, and although there have been in all the western States an adoption or recognition of the common law, it was early developed in their history that the mining industry in certain States, the reclamation of arid lands in others, compelled a departure from the common law rule, and justified an appropriation of flowing waters both for mining purposes and for the reclamation of arid lands, and there has come to be recognized in those States, by custom and by State legislation, a different rule—a rule which permits,

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under certain circumstances, the appropriation of the waters of a flowing stream for other than domestic purposes.” (United States v. Rio Grande Dam and Irrigation Co., 174 U.S. at p. 704.)

But though each State of the American Union may, as between its own citizens, regulate the right to use the waters of rivers, the rights of the States are subject to the paramount power of Congress with respect to navigation. Thus in 1890, Congress passed a comprehensive Act prohibiting the creation of any unauthorized obstruction to the navigable capacity of waters over which the United States have jurisdiction; and under this Act it has been held that if the navigability of a navigable stream is substantially affected by impounding the waters of a non-navigable tributary—even though such tributary be wholly within one State—the Federal Government has power to interfere. When proceedings are taken by the United States for that purpose,

“It becomes a question of fact whether the act sought to be enjoined is one which fairly and directly tends to obstruct (that is, to interfere with or diminish) the navigable capacity of a stream. It does not follow that the courts would be justified in sustaining any proceeding by the Attorney-General to restrain any appropriation of the upper waters of a navigable stream. The question always is one of fact, whether such appropriation substantially interferes with the navigable capacity within the limits where navigation is a recognized fact. In the course of the argument this suggestion was made, and it seems to us not unworthy of note, as illustrating this thought. The Hudson River runs within the limits of the State of New York. It is a navigable stream and a part of the navigable waters of the United States, so far at least as from Albany southward. One of the streams which flows into it and contributes to the volume of its waters is the Croton River, a non-navigable stream. Its waters are taken by the State of New York for domestic purposes in the city of New York. Unquestionably the State of New York has a right to appropriate its waters, and the United States may not question such appropriation, unless thereby the navigability of the Hudson is disturbed. On the other hand, if the State of New York should, even at a place above the limits of navigability, by appropriation for any domestic purposes, diminish the volume of waters which, flowing into the Hudson, make it a navigable stream, to such an extent as to destroy its navigability, undoubtedly the jurisdiction of the National Government would arise, and its power to restrain such appropriation be unquestioned: and within the purview of this section it would become the right of the Attorney-General to restrain such proceedings.” (United States v. Rio Grande Dam and Irrigation Co., 174 U.S. at p. 709.)

The above case was decided in October, 1898, after the Convention had finished its sittings; but the principles on which the decision is based were already well understood, and it was with the view of modifying to some extent the application of those principles that this section was framed. Under this Constitution the mere fact that navigability is substantially affected, or even destroyed, does not enable the Commonwealth to restrain the use of the water by a State or its residents unless such use is unreasonable.