December 15, 1911] 



SCIENCE 



819 



one of fact (the Genesee Chief v. Fitzhugh, 

 12 Howard, 443, et seq., especially 456-7) 

 — a principle ever since recognized in this 

 country, save as laxity in federal admin- 

 istration and zeal in state aggrandization 

 have permitted insidious invasion of navig- 

 able and necessary source streams by de- 

 vices for other uses of the water. The third 

 step in the same line (with which advance 

 practically terminates) was marked by the 

 Supreme Court decision in the Rio Grande 

 case establishing the power of the federal 

 government to protect the source streams 

 on which depend the navigability of the 

 lower waters (United States v. Rio Grande 

 Dam and Irrigation Company, 174 U. S., 

 690-710) — the oft-quoted Kansas-Colorado 

 case, though conformable, being virtually 

 a nonsuit and of little bearing on prin- 

 ciples affecting the general relations of 

 water. 



23. The most significant advance in 

 the development of legal relations affect- 

 ing the primary use of water in this coun- 

 try was made in a decision of the New 

 Jersey Court of Errors and Appeals, subse- 

 quently affirmed by the U. S. Supreme 

 Court, that the people of the state collec- 

 tively have a residuary right in the intra- 

 state waters (Hudson "Water Company v. 

 MeCarter, 209 U. S., 349-358), a mani- 

 festly valid doctrine which requires noth- 

 ing but application in other states with 

 respect to their intrastate waters, and ex- 

 tension to the concomitant federal author- 

 ity over interstate waters in their nature as 

 navigable streams or as sources of such 

 streams, to work a great public benefit. A 

 development of the same equitable prin- 

 ciple appears in an opinion of the Supreme 

 Court of Maine that the legislature may 

 prescribe such control of private property 

 in woodlands es may be required to pro- 

 tect public interests in the permanent 



water supply conserved by the forests; 

 while the Oregon water law of 1909 by 

 clear implication and the California water 

 law of 1911 in specific terms declare that 

 the waters of the state belong to the 

 people of the state.' 



24. During recent years the Congress 

 has enacted various constructive laws 

 conformable with and even extending the 

 principles so established by the United 

 States and state courts. The most con- 

 spicuous of these is that providing for the 

 reclamation of arid districts by expending 

 certain proceeds of public land sales in 

 diverting water from its natural channels 

 to irrigate dry tracts, thereby promoting 

 the public welfare (conformably with the 

 ' ' General Welfare ' ' clause of the Constitu- 

 tion) through a virtual extension of the 

 public domain in substantial accord with 

 the principle of the Spanish-Roman law 

 under which other resources are essen- 

 tially appurtenant to water. A related 

 principle was applied in the creation and 

 maintenance, through administrative and 

 legislative action, of national forests de- 

 signed not only to protect timber but to 

 conserve the water of source streams ; and 

 it was definitely established as a national 

 policy within a year by an act providing 

 for the purchase of lands in the Appalach- 

 ian and White Mountains for the specific 

 purpose of conserving source waters, pri- 

 marily and ostensibly to protect navigation 

 in the lower rivers — though it was well 

 understood in the deliberations attending 

 the enactment that incidental effects of 

 even greater public benefit would arise 

 ' Some state constitutions, as in Colorado, pro- 

 vide that "waters within the state belong to the 

 state, thereby setting up a claim to interstate 

 waters bound to eventuate in expensive and fruit- 

 less litigation unless the claims are composed by 

 equitable cooperation and sharing of natural and 

 legal rights and duties between the states and the 

 federal government. 



