SCIENCE 



[N. S. Vol. XXXIV. No. 885 



without loss or impairment of their indi- 

 viduality or their rights and duties as con- 

 stituents of the nation; since the circula- 

 tion of rain-yielding vapor is wholly 

 independent of civil boundaries, while the 

 movement of ground-water generally, and 

 the courses of streams largely, are inde- 

 pendent of such bounds; since water in 

 artificial conduits and hydro-electric 

 power are essentially commodities and the 

 physical means of carrying them are fre- 

 quently interstate ; and since the chief uses 

 of streams commonly vary in different 

 parts of their courses and often in civil 

 divisions, while the federal government 

 alone can deal with interstate navigation 

 and international waters, no municipality 

 or state or federal agency can claim ex- 

 clusive jurisdiction over water, or the ex- 

 clusive right to administer it. 



20. Since the chief purpose of statutes 

 and common-law and courts is to prevent 

 inequity, so that their nature is static and 

 their effect generally prohibitive or re- 

 strictive or at most permissive, while the 

 activity on which development depends is 

 dynamic and constructive and in its es- 

 sence progressive (wherefore it is not 

 initiated but merely guided in direction by 

 the static qualities of law and court), it 

 follows that the inherently progressive de- 

 velopment in the use of water attending 

 the natural growth and orderly develop- 

 ment of the people can best be fostered by 

 combining individual and institutional 

 agency in the highest practicable degree — 

 i. e., by effective cooperation among indi- 

 viduals and both business and civic organi- 

 zations, including corporations, communi- 

 ties, municipalities, states and federal 

 agencies. 



LEGAL RELATIONS 



21. Most legal relations affecting the 

 uses of the water of the country are pro- 



hibitive or restrictive, or otherwise nega- 

 tive in character; comparatively few thus 

 far developed are positive and construc- 

 tive.' 



22. Constructive development of the 

 legal relations of water in eastern United 

 States began with Chief Justice Marshall's 

 interpretations of the commerce clause of 

 the Constitution, largely in McCuUough v. 

 Maryland (4 Wheaton, 316-437) and 

 more specifically in Gibbons v. Ogden (9 

 Wheaton, 1-240), which established fed- 

 eral authority over navigable streams and 

 navigation; and the next noteworthy con- 

 structive step was taken by Chief Justice 

 Taney when he cut loose from the English 

 definition of navigability, showed that 

 English standards are wholly inapplicable 

 to this country, and established the prin- 

 ciple that the question of navigability is 



' Normal development of appreciation and 

 equitable use of water in this country was unfor- 

 tunately retarded through decisions and sometimes 

 through statutes and state constitutions applying 

 (without shadow of constitutional warrant) prin- 

 ciples arising in the English common law, under 

 which water is virtually held a mere appurtenance 

 to land — a usage arising in a small and well- 

 watered but nearly riverless island, and not only 

 illogical in itself (in the impossible condition that 

 a user may remove water from a stream provided 

 he does not impair the flow), but wholly inap- 

 plicable to a great continent containing large 

 rivers, though insufficiently watered as a whole. 

 Better standards would doubtless have arisen 

 through importation of the French-Eoman law 

 (through the Code Napoleon), under which the 

 water may be said to pertain to the community, 

 save that it was practically limited to the over- 

 watered state of Louisiana; and still better stan- 

 dards were actually introduced into the arid region 

 in the Spanish-Roman law, under which water is 

 allotted by prior claim and continued beneficial 

 use and the land is virtually appurtenant thereto, 

 though this equitable principle has been gradually 

 outweighed by the force of the non-equitable Eng- 

 lish common law brought in from more populous 

 sections. 



