the larger part of the lands of the arid West were acquired from old Mexico, and as to a considerable portion of such part, namely, the portion once falling within the Mexican State of Sonora, the riparian rule did not exist, but, instead, the rule of appropriation.1

THE STATES SUCCEEDED TO THE SOVEREIGN JURISDICTION OF THE UNITED STATES, AND THEREFORE TO THE DISPOSITION OF THE WATERS.

When under our Federal political system of divided sovereignty the priority States, California, Colorado, and the rest, were admitted one by one into the Union, they succeeded to the general sovereign jurisdiction formerly possessed by the United States over such of the running waters of the public domain of the United States as were within their respective boundaries. Although speaking not of water but of another of the natural media, Mr. Justice White said, in Geer v. Connecticut,3 already once quoted:

Undoubtedly this attribute of government to control the taking of animals ferae naturae, which was thus recognized and enforced by the common law of England, was vested in the colonial governments, where not denied by their charters or in conflict with grants of the royal prerogative. It is also certain that the power that the colonies thus possessed passed to the States with the separation from the mother country, and remains in them at the present day, in so far as its exercise may be not incompatible with, or restrained by, the rights conveyed to the Federal Government by the Constitution.

The succession of the State in respect to the running water was to power, not to property, for of the latter the United States had none. Out of the power thus acquired the States could, as could and did the United States before them, create property rights in the use of the waters could determine the water system and dispose of water rights thereunder. The exercise of this power would be subject only to such appropriation rights as the United States prior to the statehood of any given State had already created, upon appropriations being made under Federal statutes, notably those of 1866 and of 1877, above referred to, when agreeable to "local customs, laws and decisions." The old appropriation rights did not harrass or annoy the States in the exercise of the new power, for the creation of the rights had been by the Federal Statutes themselves conditioned, as we have seen, upon agreeableness to "local customs, laws and decisions of court" and the conferment of State sovereignty did not change the local popular will or policy in favor of the priority system.

ANALYSIS OF FURTHER AUTHORITIES.

We ought to analyze further some of the Federal statutes already referred to, and also a number not even mentioned, to ascertain how well they square with the main propositions advanced in this discussion, but the analysis would require more time than the occasion permits. I can only say that the statutes in the main appear to be consistent with what has been advocated here and that where they

1 Boquillas Land & Cattle Co. v. Curtis, 213 U. S., 338.

2 Geer v. Connecticut, 161 U. S., 519, 527-528; Pollard v. Hagan, 3 Howard (U. S.), 312; Kansas v. Colorado, 206 U. S., 46, 161 U. S., 519, 527-528. A. C., July 26, 1866.

are not they amount at most to implied declarations that there exists in Congress a power of determining who may acquire property rights in the waters or in their use and the terms of the acquisition. Such declarations are without effect on the States, for the power referred to passed along with other powers of general sovereign jurisdiction to the States, upon the conferment of statehood. When once a State has come into being any and all subsequent declarations by Congress, either of ownership or of powers of disposition, come too late. The scepter has passed.

CONCLUSION.

If what has been advocated here is true, we now have reached the following conclusions: First, that the United States acquired from the ceding nations sovereign jurisdiction over the running waters, but not property in them or in their use; second, that prior to conferment of statehood upon the priority States the United States never exercised this jurisdiction to create in itself a general proprietary right either riparian or by appropriation or otherwise, but only to create appropriation rights in others where agreeable to "local customs, laws, and decisions"; third, that when the priority States were admitted to the Union they succeeded the United States in the general sovereign jurisdiction over the waters, with no property interest therein or in the use thereof outstanding in favor of the United States; fourth, that this sovereign jurisdiction acquired by the priority State is subject to three restrictions, sovereign not proprietary in character, one of them being that the United States may not in the case of an interstate stream deprive the other State or States of its or their "equitable" portion of the water of the stream, another being that navigability of navigable streams must not be impaired, and the last being subjection to priority rights created by the United States in appropriators prior to statehood; fifth, that under and by virtue of the sovereign jurisdiction thus acquired and to the limitations mentioned the State became the lawful disposer of the waters, with power to select any water system desired, whether priority, riparian, or, probably, as in the California doctrine States (and notwithstanding the unsound legal reasoning of that doctrine, to say nothing of its economic inconsistency), the priority and riparian combined, to determine the persons who could acquire rights under the system chosen, the purposes for which the acquisition could be made and the incidents thereof, and with power in the Colorado-doctrine States to dispose, to the exclusion of the Federal Government, of all the waters not then or yet appropriated. This conclusion in favor of the power of the State to dispose of its waters to the exclusion of the Federal Government is one most of us gathered here do not regret. It seems to accord with law, and it certainly accords with our sense of what the law ought to be.

When the 13 original States-Massachusetts, South Carolina, and the others entered the Union, they did not by that act surrender, but retained free from interference by the Federal Government, the disposition of their waters and the general sovereign jurisdiction over them. We of the Western States now demand as much for ourselves. Natural resources are to be developed and conserved,

but we are unwilling in the process to surrender legitimate principles of State government to what we regard as temporary demands of Federal economic policy. We are loyal to the Union, but, as governmental agencies of the Union, we have full confidence in ourselves. We have faith in our own control of the waters, mountains, and plains of the homeland we have upbuilt-land of town, trail, mesa, pine, and sapphire sky; where the romance of Ute, Spaniard, and forty-niner still tinges the daring of to-day; where we catch the sun glint of the plowman's blade, hear the miner's pick, and the bell of the slowly roving herd; where we look up slopes toward snows that never melt, to colors that ever change the land we fondly call the West.

O

No. 576

PRAYERS FOR PEACE

A PROCLAMATION

BY THE

PRESIDENT OF THE UNITED STATES

DESIGNATING SUNDAY, OCTOBER 4, 1914,

AS A DAY OF PRAYER AND SUPPLICA

TION FOR PEACE IN EUROPE

PRESENTED BY MR. THOMPSON

SEPTEMBER 9 (legislative day, SEPTEMBER 5), 1914. Ordered to be printed

WASHINGTON

GOVERNMENT PRINTING OFFICE