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§ 420. “The Waters of Rivers.”

A river is a stream flowing in a defined channel; and the waters of a river are the waters flowing over its bed and between its banks. Rainwater flowing over or percolating through the soil, but not flowing in a defined channel, is not the water of a river (see McNab v. Robertson [1897], App. Ca. 134). Artesian water is therefore not the water of a river; nor, it would seem, is flood-water which has escaped from the banks of a river and overflowed the surrounding country. One interesting question that arises is whether the great lakes and billabongs into which the Darling River spreads in flood-time can be called part of the river, or whether the waters which they then contain can be called the waters of the river. As defined by text-book writers, the bed of a river is, generally speaking, all the soil below the high-water mark of the ordinary tides and the ordinary floods. How far the bed and banks of such a river as the Darling extend is a question of fact; and it may be that the unique conditions of that river make a strict adherence to the definitions of English judges and text-book writers impracticable.

In connection with this question, the further question may arise whether the Federal Parliament, in the exercise of its navigation power, can in any way prevent the appropriation of waters which are not the waters of rivers. In the gift of the navigation power (sec. 51—i. 98) no mention is made of rivers, but this section prohibits the abridgment, by trade and commerce laws, of the State-rights of reasonable use of the waters of rivers. This section seems to show that the Constitution did not contemplate federal control of other inland waters. No riparian law in the world, it is believed, extends to waters not within the ripae, or banks, of a stream. The American cases extend the authority of the Union, in respect of navigation, to all the tributary streams of a navigable river; and it would seem that this is the utmost limit of control. This distinction may be important in connection with the conservation of waters in flooded areas.

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