navigation of those rivers,'

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which later were to be invaluable in

the development of power sites.

This era of waterway improvement had its climax between 1825 and 1840. The improvements were generally managed by the states or by corporations chartered by the states, but they were encouraged and often aided by loans from the national treasury and by grants of public lands to the states. Many of the improvements and much of the regulation of navigable rivers, however, were evidently left to the states, while the national government acquiesced in the building of whatever structures the states should desire. The situation in the Western states was aptly analyzed by the Supreme Court of Oregon in 1900."

It has become a matter of history that prior to any laws upon the subject the use of water was exercised under a custom permitting any person to go upon a stream, or other source of water supply upon the public domain, and divert water therefrom wherever and whenever needed, provided the use thereof did not interfere with the prior rights of others. In other words, priority in the diversion and use determined the rights of all conflicting claimants. This procedure was encouraged and acquiesced in by the government for many years throughout the Pacific Coast states, until in recognition thereof the act of Congress of July 26, 1866 [14 Stat. L., 253], was adopted.

Development of National Control after 1866. Immediately after the Civil War, the national government assumed greater authority over water rights than it had theretofore exerted. Prior to 1899, however, there seems to have been no definite or general national prohibition against the construction of dams on navigable streams unless the structures actually interfered with navigation. Yet there was a gradual tendency in that direction, which began directly after the Civil War. The act of June 26, 1866 (14 Stat. L., 70), was the first great indication of this policy, and it was followed by many similar acts which led to the eventual creation of the Federal Power Commission. This act of 1866, which

52 This survey was made by Brigadier-General Bernard and Major Joseph G. Totten, whose report was communicated to Congress by President James Monroe on January 22, 1823, and published in full in American State Papers, Class IV, Vol. II, pp. 740-746.

was introduced by Congressman William Higby of California, granted the right-of-way to ditch and canal owners over the public lands. It was repeated in several subsequent acts, and under the Federal Power Commission Act of 1920, it is made a requirement to be complied with in connection with applications for power sites. The act declares:

That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right-of-way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed.

Within a month this law was followed by the act of July 24, 1866 (14 Stat. L., 221), which permitted any telegraph company to construct lines over any portion of the public domain and across the navigable waters of the United States, provided "such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters."

The distinction between the rights to land and the rights acquired of the appropriation of water on the land to beneficial use was indicated by the act of July 9, 1870 (16th Stat. L., 217). This law made all patents of land that should be granted, subject to the “vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights as may have been acquired" under the act of June 26, 1866. This distinction was further pointed out by the act of March 3, 1877 (19 Stat. L., 377), which provided that all of the surplus water over and above that which had been appropriated for purposes of reclamation in certain cases, "together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights."

Three years later, considerable study was given to the waterpower of the United States by the census of 1880, the report constituting two elaborate volumes.

General legislative control over the erection of structures in navigable waters of the United States was first asserted in the Rivers and Harbors Act of July 5, 1884 (23 Stat. L., 133). Prior to that time there had been occasional instances of federal control of marine construction, but no broad or definite principle of national control of structures in navigable waters had been enunciated. This law directed that whenever the Secretary of War should have good reason to believe that any bridge constructed over any of the navigable waters of the United States should be an obstruction to the free navigation of such waters, it would be his duty to have such obstacles removed. If necessary, the Secretary of War was empowered to remove the obstructions at the expense of the United States and refer the matter to the AttorneyGeneral for the recovery of the expense from the offenders.

This law was reenforced by another act bearing the same date which exempified the type of legislation that was enacted from time to time until 1899. This second act of July 5, 1884 (23 Stat. L., 154), authorized a water-power and mill company to construct across the Mississippi River, a dam and other works for waterpower. It required that the dam should be constructed so as to permit the free passage of logs and rafts, and so as to allow the national government at any time to construct in connection with the dam, a suitable lock for navigation. Possession of the dam might be taken by the United States for navigation purposes at any time by paying actual cost, but the government might not destroy the water-power created by the dam. It was further provided that the structure should admit such modifications in the works as the Secretary of War may from time to time deem necessary in the interest of navigation," these modifications to be made," at the expense of the water-power company."

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This was the first specific authorization that Congress ever gave for the construction of a power project in a navigable stream. Within the succeeding twenty-two years, it was followed by thirty special acts which, "except for the general provision that they were subject to alteration, amendment, or repeal, were perpetual in their terms and were subject to no restrictions.'

54

99 54

Federal Power Commission, Annual Report, 1920, p. 48.

Irrigation and flood-prevention also engaged attention at this time. By the act of October 2, 1888 (25 Stat. L., 526), Congress made an appropriation for irrigation purposes and for "hydraulic works necessary for the storage and utilization of water for irrigation and the prevention of floods and overflows." Under this act an investigation of the potential uses of water was made by the Geological Survey.

The law reserved from entry and settlement all of the lands that should be selected by the United States surveys for reservoir sites or ditches, and all lands made susceptible of irrigation.

As the West developed, water was utilized more and more for irrigation purposes. The act of 1870 had authorized vested and accrued water rights in the lands of the United States for irrigation purposes. These vested rights subsequently became so numerous that it was necessary for the General Land Office to keep a permanent record of them. Consequently the act of March 3, 1891 (26 Stat. L., 1095, 1101), was passed to make such records attainable and to provide security in the maintenance of those rights. Under this law the reservoir sites located under the act of October 2, 1888, were required to include only so much land as should be "actually necessary for the construction and maintenance of reservoirs."

The problem of water-power control was complicated somewhat by the development of hydroelectric projects, beginning about 1890. In 1894, Congress again provided for a study of water resources of the country, to include underground currents and deep wells as well as reservoirs and irrigation systems. It was obvious that the earlier water-rights legislation and public land laws were insufficient to cover this new situation. The lands that were required for hydroelectric projects had to be acquired by recourse to statutes that were not designed for electric power plants, or the power sites had to be occupied in trespass, as many of the pioneers had occupied their homesteads, without legislative authority. Legislation had not kept pace with industrial progress. To permit legitimate industrial expansion therefore, new legislation was necessary. It was essential that rights-of-way be obtainable upon the public lands and upon the reservations for station grounds and electric power plants. To make this possible Congress passed the act of May 14, 1896 (29 Stat. L., 120), which

empowered the Secretary of the Interior to permit the use of rights-of-way together with the necessary ground within prescribed limits upon the public lands and forest reservations by persons "for the purposes of generating, manufacturing, or distributing electric power." The Secretary of the Interior was authorized to issue general regulations governing the applicants. The Secretary issued permits to those who acquired power rights, and these permits were construed to be mere licenses that were revocable at will. This act of 1896 imposed much labor upon the Secretary of the Interior, as the act of 1890 had placed additional burdens upon the Secretary of War. It indicated the need of a power commission as the acts of 1888 and of 1890 had indicated the need of a commission to regulate the issuance of permits to build structures on navigable streams. Both duties were so closely akin that there was need for much coöperation between the secretaries and their respective departments.

National control of water-power approached reality when the act of February 15, 1901 (31 Stat. L., 790), was enforced. The power which this act gave to the Secretary of the Interior to grant the use of rights of way over public lands especially applied to water plants, dams, and reservoirs." Up to that time there had been no legislation directly on the subject of water-power regulation, and the

66

water-power sites went to patent unmolested, either as parts of homesteads or by purchase, and were given no federal attention whatever. Under this procedure a large number of the power sites on the public domain were frittered away and have passed into private ownership beyond regulation, beyond control. As we look back on this procedure it seems like criminal neglect. Many of the valuable water-power sites of the country passed as fast as eager private concerns and persons could grab them under the several lax laws then in existence. These are now forever, in part, to be enjoyed by the few who at will may practice extortion and monopoly upon the consuming public, subject only to inadequate state regulations where the business is intrastate and with little or no regulation where the concern is doing an interstate business. The titles to these sites have forever passed out of the hands of the federal government and the people."

55 64 Cong. I sess., H. rep. 16, p. 8 (1916).