Adjusting Water Rights Between States

Home Browse Search

c=ontrol of the waters of its natural stream,. Therefore, where a state abrogates the common law riparian doctrine, and such right is recognized by the Supreme Court of the United States, there is only one c- onclusion, namely, that the government never had any property rights in such waters. The control of such water under the constitutions of the s evaral states is by virtue of the exercise of the political power and is not in contra,• vention with any proprietary rights in the federal government. The govern- ment never had any property rights which have been waived or granted away, but the usufructuary rights in water are exercised by the states as one of the powers reserved to the states. As hereinabove pointed out, water j being of a fugitive nature, the corpus is susceptible of use for irri- gation only when controlled and the only property right=s which exist in water in -its natural state are rights of use, The above mentioned constitutional provisions of western states, accepted and approved by the Congress of the United States, and the federal, enactments herein noted together with the interpretation of suoh legislation by the Supreme Court of the United States, sustain the power of the states to control the appropriation and distribution of water of non..navigable rivers. Fundamentally this right arises from the federal constitution providing for distribution of powers in our dual (state and federal) form of government. The tenth amendment of the federal constitut- ion reserves to the states full control of their internal affairs. The federal government is one of enumerated powers, Powers not delegated to the United States by the constitution nor prohibited by it to the states, are reserved to the states respectively or to the people. In the c ase of - .12.«.