1. Upon review of a case involving the scope of the federal
commerce power in relation to licensing by the Federal Power
Commission of a hydroelectric dam, this Court may determine for
itself whether a particular waterway is a navigable water of the
United States, and it is not precluded by the rule that factual
findings concurred in by two courts below will be accepted here
unless clear error is shown. P.
311 U. S.
403.
2. The ultimate conclusion as to whether a particular waterway
is a navigable water of the United States, and the judicial
standards to be applied in making the determination, involve
questions of law inseparable from the particular facts to which
they are applied. P.
311 U. S.
404.
3. A waterway which by reasonable improvement can be made
available for navigation in interstate commerce is a navigable
water of the United States, provided there be a balance between
cost and need at a time when the improvement would be useful. P.
311 U. S.
407.
4. In such case, it is not necessary that the improvement shall
have been already undertaken or completed, nor even that it shall
have been authorized. P.
311 U. S.
408.
5. A navigable water of the United States does not lose that
character because its use for navigation in interstate commerce has
lessened or ceased. Pp.
311 U. S.
408-409.
6. A waterway may be a navigable water of the United States for
a part only of its course. P.
311 U. S.
410.
7. Lack of commercial traffic does not preclude the
classification of a waterway as a navigable water of the United
States where personal or private use by boats demonstrates its
availability for the simpler types of commercial navigation. P.
311 U. S.
416.
8. Upon the facts of this case,
held that the New
River, from Allisonia, Virginia, to Hinton, West Virginia, is a
navigable water of the United States. Pp.
311 U. S. 410,
311 U. S.
418-419.
9. It is within the constitutional power of Congress to require
that a federal license be obtained for the erection or maintenance
of a
Page 311 U. S. 378
structure in a navigable water of the United States, even though
the sole purpose of the structure be the generation of electric
power. Pp.
311 U. S. 424,
311 U. S.
426.
10. The authority of Congress over navigable waters of the
United States is not limited to control for the purposes of
navigation only, but is as broad as the needs of commerce. P.
311 U. S.
426.
11. In the exercise of its power over a navigable water of the
United States, Congress may forbid the placing of an obstruction
therein, or may grant the privilege on such terms as it chooses,
and it is no objection that its exercise of power in this respect
is attended by the same incidents which attend the exercise of the
police power of the States. P.
311 U. S.
427.
12. The Federal Power Act provides that licenses issued by the
Federal Power Commission, for projects required by the Act to be
licensed, shall contain certain conditions. Section 10(a) requires
that the project be best adapted to a comprehensive plan for
improving or developing the waterway for the use or benefit of
interstate or foreign commerce, for the improvement and utilization
of water power development, and for other beneficial public uses,
including recreational purposes; § 10(c) requires that the licensee
maintain the project adequately for navigation and for efficient
power operation, maintain depreciation reserves adequate for
renewals and replacements, and conform to the Commission's
regulations for the protection of life, health and property; §
10(d) requires that, out of surplus earned after the first 20 years
above a specified reasonable rate of return, the licensee maintain
amortization reserves to be applied in reduction of net investment;
§ 10(e) requires the licensee to pay to the United States
reasonable annual charges for administering the Act, and authorizes
the United States during the first 20 years to expropriate
excessive profits unless or until the State prevents such profits;
§ 14 gives the United States the right, upon expiration of a
license, to take over and operate the project by paying the
licensee's "net investment," not to exceed the fair value of the
property taken.
Held, that respondent, a power company
which, under license from the State, had undertaken the
construction of a hydroelectric dam in New River, could be
compelled, in a suit brought by the United States, to obtain from
the Commission a license containing conditions authorized by §§
10(a), (c), (d), (e) and 14 or, in the alternative, to remove its
works from the river.
(1) The validity of other provisions of the license, challenged
only generally as unrelated to navigation, not decided. P.
311 U. S.
420.
Page 311 U. S. 379
(2) The fact that the provisions of § 14 for acquisition by the
United States at the expiration of the license period vitally
affect the establishment and financing of respondent's project
requires that the question of the validity of the section and of
the license provisions based upon it be determined now, and that
the determination be not deferred until the right matures and the
United States proceeds to exercise it. P.
311 U. S.
421.
(3) Assuming, without deciding, that, by compulsion of the
method of acquisition provided by § 14 and the required license,
riparian rights of the respondent may ultimately pass to the United
States for less than their value, this must be regarded as the
price which the respondent must pay for the privilege to maintain
the dam, and does not involve a violation of the Fifth Amendment.
P.
311 U. S.
427.
(4) The license conditions here considered have an obvious
relationship to the exercise of the commerce power. P.
311 U. S.
427.
(5) The provisions for future acquisition of the project by the
United States is not an invasion of the sovereignty of the State.
P.
311 U. S.
428.
13. A valid exercise by Congress of the power delegated to it by
the commerce clause call not constitute an encroachment on state
sovereignty in violation of the Tenth Amendment. P.
311 U. S.
428.
14. The Court confines its decision in this case to the concrete
legal issues presented, and does not undertake to determine
abstract questions as to the relative rights of the States and the
United States in respect to the development and control of water
power. P.
311 U. S.
423.
107 F.2d 769 reversed.
Certiorari, 309 U.S. 646, to review the affirmance of a decree
dismissing a bill brought by the United States against the power
company to enjoin the construction of a dam in the New River.
Opinion of District Court,
23 F. Supp.
83.
Page 311 U. S. 398
MR. JUSTICE REED delivered the opinion of the Court.
This case involves the scope of the federal commerce power in
relation to conditions in licenses, required by the Federal Power
Commission, for the construction of hydroelectric dams in navigable
rivers of the United States. To reach this issue requires,
preliminarily, a decision as to the navigability of the New River,
a watercourse flowing through Virginia and West Virginia. The
district court and the circuit court of appeals have both held that
the New River is not navigable, and that the United States cannot
enjoin the respondent from constructing and putting into operation
a hydroelectric dam situated in the river just above Radford,
Virginia.
Sections 9 and 10 of the Rivers and Harbors Act of 1899 make it
unlawful to construct a dam in any navigable water of the United
States without the consent of Congress. [
Footnote 1] By the Federal Water Power Act of 1920,
[
Footnote 2]
Page 311 U. S. 399
however, Congress created a Federal Power Commission with
authority to license the construction of such dams upon specified
conditions. Section 23 of that Act provided that persons intending
to construct a dam in a nonnavigable stream may file a declaration
of intention with the Commission. If, after investigation, the
Commission finds that the interests of interstate or foreign
commerce will not be affected, permission shall be granted for the
construction. Otherwise construction cannot go forward without a
license.
The Radford Dam project was initiated by respondent's
predecessor, the New River Development Company, which filed its
declaration of intention with the Federal Power Commission on June
25, 1925. The Commission requested a report from General Harry
Taylor, then Chief of Engineers of the War Department. He first
reported that the river was navigable, and also that, while the
water flow from the dam, if not properly regulated, could have an
adverse effect on navigation during low water stages in the Kanawha
River (of which the New was one of the principal tributaries), such
possible adverse effect would not warrant refusing a license to
construct the dam if control was maintained by the United States.
On review at the Commission's request, however, General Taylor
rendered a second report concluding that the New River in its
present condition was not navigable, and that navigation on the
Kanawha would not be adversely affected by the proposed power
development. On March 2, 1926, the Commission held a hearing on the
declaration; the only evidence then submitted was General Taylor's
second report.
Respondent, the Appalachian Electric Power Company, took an
assignment of the declaration of intention on August 30, 1926, and
several days later filed an application for a license on the
Commission's suggestion that this would expedite matters and could
be withdrawn if it later developed that no federal license was
required.
Page 311 U. S. 400
In October, the district engineer of the War Department held a
public hearing at Radford. On June 1, 1927, the Commission made a
finding that the New River was not "navigable waters" within the
definition in section 3 of the Federal Water Power Act of 1920, but
that (under section 23 of the Act) the project would affect the
interests of interstate and foreign commerce. On July 1, 1927, the
Commission tendered to respondent a standard form license which the
respondent refused in April, 1928, principally on the ground that
the conditions -- especially those concerning rates, accounts, and
eventual acquisition -- were unrelated to navigation. In February,
1930, respondent reiterated that its project was not within the
Commission's jurisdiction, but nevertheless offered to accept a
"minor part" license [
Footnote
3] containing only such conditions as would protect the
interests of the United States in navigation. In September, 1930,
Attorney General Mitchell advised the Commission that it could
properly issue such a minor part license; [
Footnote 4] the question submitted by the Commission
had stated that the New River was neither navigated nor navigable
in fact. On November 25, the Commission "declined to take action on
the application favorable or adverse," on the ground that a court
adjudication was desirable. After the establishment of the
Commission as an independent agency, [
Footnote 5] it held another hearing in February, 1931; in
April, it denied the application for a minor part license, directed
that the respondent be tendered a standard form license under the
Act, and ordered it not to proceed without such a license. A
minority of the Commission then
Page 311 U. S. 401
favored a finding that the New River was navigable; the
majority, however, thought that question was for the courts, and
that the Commission's jurisdiction was properly based upon section
23 of the Federal Water Power Act.
On June 8, 1931, the respondent brought an action against the
Commission to remove a cloud on its title and to restrain
interference with the use of its property. This case was dismissed
for jurisdictional reasons. [
Footnote 6] While it was pending, on October 12, 1932, the
Commission, without notice, adopted a resolution that the New
River, from the mouth of Wilson Creek, Virginia, north, was
navigable.
The respondent began construction work on the dam about June 1,
1934. On May 6, 1935, the United States filed this bill for an
injunction against the construction or maintenance of the proposed
dam otherwise than under a license from the Federal Power
Commission, and in the alternative a mandatory order of removal. It
alleged that the New River is navigable; that the dam would
constitute an obstruction to navigation and would impair the
navigable capacity of the navigable waters of the United States on
the New, Kanawha, and Ohio Rivers; that the Commission had found
the dam would affect the interests of interstate or foreign
commerce, and that its construction therefore violated both the
Rivers and Harbors Act and the Federal Water Power Act. Respondent
denied these allegations, and also set forth a number of separate
defenses based on the assumption that the New River was
nonnavigable. The fortieth and forty-first paragraphs of the
answer, however, set forth defenses relied on by the respondent
even if the river were held navigable. The substance of these was
(1) that the conditions of any federal license must
Page 311 U. S. 402
be strictly limited to the protection of the navigable capacity
of the waters of the United States, and (2) that the Commission's
refusal to grant the minor part license containing only such
conditions was unlawful, and that any relief should be conditioned
upon the Commission's granting respondent such a license. By these
defenses, respondent put in question -- in the event of an adverse
holding on navigability -- the validity of the conditions of the
Act carried over into the standard form license which relate to
accounts, control of operation, and eventual acquisition of the
project at the expiration of the license.
After trial, in an opinion reinforced by formal findings of fact
and law, the district court decided that the New River is not a
navigable water of the United States; that respondent's dam would
not obstruct the navigable capacity of the Kanawha or any other
navigable river, and would not affect the interests of interstate
commerce; that the Power Commission's findings on these matters
were not final, but subject to the determination of the courts;
[
Footnote 7] that the Federal
Water Power Act did not vest in the Commission authority to require
a license in a nonnavigable river; that, even if the Commission had
authority to require some license for a dam in nonnavigable waters,
it could not impose conditions having no relation to the protection
of the navigable capacity of waters of the United States, and that
its effort to impose upon respondent a license containing unlawful
conditions barred the United States from relief. The district judge
therefore dismissed the bill, but left it open
Page 311 U. S. 403
to the Government to assert its rights if future operation of
the project interfered with the navigable capacity of the waters of
the United States. The circuit court of appeals, with one judge
dissenting, affirmed. We granted certiorari. [
Footnote 8]
Concurrent Findings. The district court's finding that
the new River was not navigable was concurred in by the circuit
court of appeals after a careful appraisal of the evidence in the
record. [
Footnote 9] Both
courts stated in detail the circumstantial facts relating to the
use of the river and its physical characteristics, such as volume
of water, swiftness, and obstructions. There is no real
disagreement between the parties here concerning these physical and
historical evidentiary facts. But there are sharp divergencies of
view as to their reliability as indicia of navigability and the
weight which should be attributed to them. The disagreement is over
the ultimate conclusion upon navigability to be drawn from this
uncontroverted evidence.
The respondent relies upon this Court's statement that "each
determination as to navigability must stand on its own facts,"
[
Footnote 10] and upon the
conventional rule that factual findings concurred in by two courts
will be accepted by this Court unless clear error is shown.
[
Footnote 11]
In cases involving the navigability of water courses, this
Court, without expressly passing on the finality of the findings,
on some occasions has entered into consideration of the facts found
by two courts to determine for
Page 311 U. S. 404
itself whether the courts have correctly applied to the facts
found the proper legal tests. [
Footnote 12] When we deal with issues such as these
before us, facts and their constitutional significance are too
closely connected to make the two-court rule a serviceable guide.
The legal concept of navigability embraces both public and private
interests. It is not to be determined by a formula which fits every
type of stream under all circumstances and at all times. Our past
decisions have taken due account of the changes and complexities in
the circumstances of a river. We do not purport now to lay down any
single definitive test. We draw from the prior decisions in this
field and apply them, with due regard to the dynamic nature of the
problem, to the particular circumstances presented by the New
River. To these circumstances, certain judicial standards are to be
applied for determining whether the complex of the conditions in
respect to its capacity for use in interstate commerce render it a
navigable stream within the Constitutional requirements. Both the
standards and the ultimate conclusion involve questions of law
inseparable from the particular facts to which they are
applied.
Navigability. The power of the United States over its
waters which are capable of use as interstate highways arises from
the commerce clause of the Constitution, art. 1, § 8, cl. 3. "The
Congress shall have Power . . . To regulate Commerce . . . among
the several States." It was held early in our history that the
power to regulate commerce necessarily included power over
navigation. [
Footnote 13] To
make its control effective, the Congress may keep the
"navigable
Page 311 U. S. 405
waters of the United States" open and free and provide by
sanctions against any interference with the country's water assets.
[
Footnote 14] It may
legislate to forbid or license dams in the waters; [
Footnote 15] its power over improvements
for navigation in rivers is "absolute." [
Footnote 16]
The states possess control of the waters within their borders,
"subject to the acknowledged jurisdiction of the United States
under the Constitution in regard to commerce and the navigation of
the waters of rivers." [
Footnote
17] It is this subordinate local control that, even as to
navigable rivers, creates between the respective governments a
contrariety of interests relating to the regulation and protection
of waters through licenses, the operation of structures, and the
acquisition of projects at the end of the license term. But there
is no doubt that the United States possesses the power to control
the erection of structures in navigable waters.
The navigability of the New River is, of course, a factual
question, [
Footnote 18] but
to call it a fact cannot obscure the diverse elements that enter
into the application of the legal tests as to navigability. We are
dealing here with the sovereign powers of the Union, the Nation's
right that its waterways be utilized for the interests of the
commerce of the whole country. It is obvious that the uses to which
the streams may be put vary from the carriage of ocean liners to
the floating out of logs; [
Footnote 19] that the density of traffic varies equally
widely from the busy
Page 311 U. S. 406
harbors of the seacoast to the sparsely settled regions of the
Western mountains. [
Footnote
20] The tests as to navigability must take these variations
into consideration.
Both lower courts based their investigation primarily upon the
generally accepted definition of
The Daniel Ball.
[
Footnote 21] In so doing,
they were in accord with the rulings of this Court on the basic
concept of navigability. [
Footnote 22] Each application of this test, however, is
apt to uncover variations and refinements which require further
elaboration.
In the lower courts and here, the Government urges that the
phrase "susceptible of being used, in their ordinary condition," in
the
Daniel Ball definition, should not be construed as
eliminating the possibility of determining navigability in the
light of the effect of reasonable improvements. The district court
thought the argument inapplicable. [
Footnote 23]
Page 311 U. S. 407
The circuit court of appeals said:
"If this stretch of the river was not navigable in fact in its
unimproved condition, it is not to be considered navigable merely
because it might have been made navigable by improvements which
were not in fact made. Of course, if the improvements had been
made, the question of fact might have been different. [
Footnote 24]"
To appraise the evidence of navigability on the natural
condition only of the waterway is erroneous. Its availability for
navigation must also be considered. "Natural or ordinary
conditions" [
Footnote 25]
refers to volume of water, the gradients and the regularity of the
flow. A waterway otherwise suitable for navigation is not barred
from that classification merely because artificial aids must make
the highway suitable for use before commercial navigation may be
undertaken. Congress has recognized this in section 3 of the Water
Power Act by defining "navigable waters" as those "which, either in
their natural or improved condition," are used or suitable for use.
The district court is quite right in saying there are obvious
limits to such improvements as affecting navigability. These limits
are necessarily a matter of degree. [
Footnote 26] There must be a balance between cost and
need at a time when
Page 311 U. S. 408
the improvement would be useful. When once found to be
navigable, a waterway remains so. [
Footnote 27] This is no more indefinite than a rule of
navigability in fact as adopted below based upon "useful interstate
commerce" or "general and common usefulness for purposes of trade
and commerce" if these are interpreted as barring improvements.
[
Footnote 28] Nor is it
necessary that the improvements should be actually completed, or
even authorized. The power of Congress over commerce is not to be
hampered because of the necessity for reasonable improvements to
make an interstate waterway available for traffic.
Of course, there are difficulties in applying these views.
Improvements that may be entirely reasonable in a thickly
populated, highly developed, industrial region may have been
entirely too costly for the same region in the days of the
pioneers. The changes in engineering practices or the coming of new
industries with varying classes of freight may affect the type of
the improvement. Although navigability to fix ownership of the
river bed [
Footnote 29] or
riparian rights [
Footnote
30] is determined as the cases just cited in the notes show, as
of the formation of the Union in the original states or the
admission to statehood of those formed later, navigability, for the
purpose of the regulation of commerce, may later arise. [
Footnote 31] An analogy is found in
admiralty jurisdiction, [
Footnote 32] which may be extended over places formerly
nonnavigable. [
Footnote 33]
There
Page 311 U. S. 409
has never been doubt that the navigability referred to in the
cases was navigability despite the obstruction of falls, rapids,
sand bars, carries, or shifting currents. [
Footnote 34] The plenary federal power over
commerce must be able to develop with the needs of that commerce
which is the reason for its existence. It cannot properly be said
that the federal power over navigation is enlarged by the
improvements to the waterways. It is merely that improvements make
applicable to certain waterways the existing power over commerce.
[
Footnote 35] In determining
the navigable character of the New River, it is proper to consider
the feasibility of interstate use after reasonable improvements
which might be made. [
Footnote
36]
Nor is it necessary for navigability that the use should be
continuous. The character of the region, its products, and the
difficulties or dangers of the navigation influence the regularity
and extent of the use. [
Footnote
37] Small traffic compared to the available commerce of the
region is sufficient. [
Footnote
38] Even absence of use over long periods of years, because of
changed conditions, the coming of the railroad, or improved
highways does not affect the navigability
Page 311 U. S. 410
of rivers in the constitutional sense. [
Footnote 39] It is well recognized, too, that
the navigability may be of a substantial part only of the waterway
in question. [
Footnote 40]
Of course, these evidences of non-navigability in whole or in part
are to be appraised in totality to determine the effect of all.
With these legal tests in mind, we proceed to examine the facts to
see whether the 111-mile reach of this river from Allisonia to
Hinton, across the Virginia-West Virginia state line, has
"capability of use by the public for purposes of transportation and
commerce." [
Footnote 41]
Physical Characteristics. New River may be said to
assume its character as such at the mouth of Wilson Creek near the
North Carolina-Virginia line. From that point, it flows first in a
northeast and then in a northwest direction something over 250
miles to Kanawha Falls, West Virginia. It passes through Allisonia
and Radford, Virginia, and then Hinton, West Virginia. It is joined
by many tributaries, the largest of which is the Gauley. At Kanawha
Falls, it changes its name to the Kanawha, a navigable river of
commercial importance which joins the Ohio 97 miles below. The
whole territory traversed by the New is broken and mountainous.
Between Hinton and Kanawha Falls, the river is swift, and the gorge
precipitous. Above Hinton, the river flows more slowly, through a
broader valley and between less rugged mountains. The same may be
said of the area above Radford. Throughout the river, there is an
abundance of water, and the respondent hardly denies that the
flowage suffices if other conditions make the New available for
navigation. [
Footnote
42]
Page 311 U. S. 411
It will conserve discussion to appraise the navigability of the
111-mile stretch between Allisonia and Hinton in three sections,
which together form the whole reach between these points: the 28
miles from Allisonia to Radford, which the United States improved
between 1876 and 1883; the 59-mile stretch from Radford to Wiley's
Falls, Virginia, never improved except at Wiley's Falls itself, and
the 24 miles from Wiley's Falls across the state line to Hinton,
West Virginia, which, like the upper section, the Government
improved during 1876-1883. We shall examine chiefly the disputed
middle section, for, as to the others, the evidence of navigability
is much stronger, and that of obstructions much weaker. For
instance, the report of the Chief of Engineers for 1873 refers to
certain keelboats operating on the river, and his report for 1883
shows that 17 keelboats operated above Hinton. Keelboats were
flat-bottomed bateaux, 50 to 70 feet long, with a draft of two feet
and a carrying capacity varying up to 10 or 12 tons. They were used
commercially to transport lumber, tobacco, and other products of
the region. The evidence is clear that these bateaux plied from
Hinton up to near Glen Lyn with fair regularity through the first
decade of this century and well into the second; timber and lumber
in large quantities apparently were boated and rafted down to
Hinton from various up-river points below Glen Lyn until about the
beginning of the World War. [
Footnote 43] Around and above Radford, the Chief of
Engineers reported two keelboats operating in 1881, eight in 1882,
and eight, together with a small steamboat, in 1883. The
corroborating testimony of many witnesses shows that, in the
80s,
Page 311 U. S. 412
these boats carried iron ore and pig iron, as well as produce
and merchandise, between Allisonia and New River Bridge, which is a
little above Radford. [
Footnote
44] At the Hinton and New River Bridge railroad stations,
freight brought in by the keelboats or other river craft was
trans-shipped, and freight arriving by rail was forwarded by
river.
We come then to a consideration of the crucial stretch from
Radford to below Wiley's Falls, where junction is made with the
interstate reach from Wiley's Falls to Hinton. In the report of the
Secretary of War for 1872 appears Hutton's useful mile-by-mile
survey of the river from above Allisonia to the mouth of the
Greenbrier, which is nearly down to Hinton. It was made as a basis
for plans to improve the New by federal appropriation. [
Footnote 45] This survey designates
the Radford-Wiley's Falls stretch as "mile 46" to "mile 104,"
inclusive. Eighteen of these miles have grades falling, gradually
or abruptly, more than four feet in the mile. Several of these
where there are rapids or falls show drops of eight, nine, and in
one instance 11 1/2 feet. The higher footage represents, of course,
miles in which small falls are found. Between these more
precipitous sections are many miles of what is called "good water,"
with a gradual fall of 4 feet or less. Even in miles where the
declivity is rapid, the fall is apparently largely in sections
containing obstructions.
Page 311 U. S. 413
For instance, the 51st mile reads "Rapid, over bowlders and
gravel, 1,500 feet long; fall, 8 1/2 feet," and the 100th mile
"Neilley's Falls and rapids; whole fall, 11 feet, 6 of it nearly
vertical. A sluice 500 feet long, along left bank, will pass them,
with 50 feet of rock excavation and 450 feet of bowlders and
gravel."
Quite frequently where the fall is moderate, other obstructions
appear, as the 78th mile "Rapids, 500 feet long, over bowlders and
gravel; fall, 2 feet." Large isolated rocks are scattered
abundantly throughout the stretch. A geologist testifying for the
respondent tells strikingly how the faulting and folding of the
surface at this stretch has resulted in the tilting of the rock
strata to a steep degree.
"In its flow, the water of New River moves along and up the
slopes of successive rock strata or ledges; . . . this results in a
river with numerous ledges of rock strata, some partly submerged,
some exposed, which are substantially vertical or standing on end,
and which extend across the stream at right angles to the line of
flow. . . . The slope of the strata is downward in an upstream
direction, rather than in a downstream direction,"
contrary to the usual condition. No other data point to material
variations from these descriptions.
Use of the River from Radford to Wiley's Falls.
Navigation on the Radford-Wiley's Falls stretch was not large.
Undoubtedly the difficulties restricted it, and, with the coming of
the Norfolk & Western and the Chesapeake & Ohio railroads
in the 80s, such use as there had been practically ceased, except
for small public ferries going from one bank to the other.
[
Footnote 46] Well
authenticated instances of boating along this stretch, however,
exist. In 1819, a survey was made by Moore and Briggs, whom the
Page 311 U. S. 414
General Assembly of Virginia had sent to report on the
availability of the New for improvement. Beginning at the mouth of
the Greenbrier, they boated up to the mouth of Sinking Creek, some
55 miles, noting the characteristics of the river as they went.
They reported that they ascended all falls with their boat,
"though, in two or three instances, with considerable difficulty,
after taking out our baggage, stores, &c." [
Footnote 47] Sinking Creek is about half
way up this stretch of river we are considering.
In 1861, the Virginia General Assembly appropriated $30,000 to
improve the New River to accommodate transportation of military
stores by bateaux from Central depot (Radford) to the mouth of the
Greenbrier. [
Footnote 48]
While there is no direct proof that this particular appropriation
was spent, reports of the War Department engineers make it clear
that the Confederate government effected some improvements on the
river. [
Footnote 49] These
facts buttress the testimony of several witnesses, one a
Confederate veteran, that, during the Civil War, Keelbottom boats
brought supplies from Radford to a commissary at
Page 311 U. S. 415
the Narrows (about 7 miles above Glen Lyn), and then continued
further downstream. [
Footnote
50] This testimony the circuit court of appeals accepted as
true. [
Footnote 51]
From the end of the Civil War to the coming of the railroads,
the evidence of elderly residents familiar with events along the
banks of the river between Radford and Wiley's Falls leaves no
doubt that at least sporadic transportation took place in and
throughout this stretch. By this it is not meant that the keelboats
above Radford and above Hinton, which operated frequently in the
improved sections, made regular through trips from Allisonia past
Radford to Hinton. Through navigation, however, did occur, as is
shown by the testimony of a number of witnesses and recognized by
the lower courts. [
Footnote
52] There are also numerous references to isolated bits of
boating along parts of the Radford-Wiley's Falls reach. [
Footnote 53] And, when the
Government stopped improvement in 1883, it ordered the boats it was
using in the lead mines' division above Allisonia, and at various
places downstream, to be brought down the full stretch of the river
to Hinton for sale. Under the supervision of the assistant
engineer, a derrick boat, four bateaux, and numerous flat boats,
skiffs, and canoes -- more than twenty vessels in al -- were taken
down to Hinton, a number of them from points above Radford. This
was accomplished, as the Chief of Engineers' report shows, despite
difficulties
Page 311 U. S. 416
occasioned by "weather, low water, and scarcity of labor."
[
Footnote 54]
In addition to the testimony of use in the days before railways
and good roads, there was a demonstration of the possibility of
navigation by a government survey boat with an outboard motor, 16
feet long, five feet wide, drawing 2 1/2 to 3 feet, loaded with a
crew of five and its survey equipment. This boat made a round trip
from the Narrows, just above Wiley's Falls, to Allisonia, a
distance of 72 miles one way, in July, 1936, when the river stage
was normal summer low water. While the crew was out of the boat and
used poles a number of times, there were no carries or portages.
Going upstream, it was not necessary to pull or push the boat more
than a mile and a quarter, and not more than a few hundred feet on
the return trip.
Use of a stream long abandoned by water commerce is difficult to
prove by abundant evidence. Fourteen authenticated instances of use
in a century and a half by explorers and trappers, coupled with
general historical references to the river as a water route for the
early fur traders and their supplies in pirogues and Durham or
flat-bottomed craft similar to the keelboats of the New, sufficed
upon that phase in the case of the DesPlaines. [
Footnote 55] Nor is lack of commercial
traffic a bar to a conclusion of navigability where personal or
private use by boats demonstrates the availability of the stream
for the simpler types of commercial navigation. [
Footnote 56]
The evidence of actual use of the Radford-Wiley's Falls section
for commerce and for private convenience,
Page 311 U. S. 417
when taken in connection with its physical condition, make it
quite plain that, by reasonable improvement, the reach would be
navigable for the type of boats employed on the less obstructed
sections. Indeed, the evidence detailed above is strikingly similar
to that relied upon by this Court in
United States v. Utah
[
Footnote 57] to establish
the navigability of the Colorado from Cataract Canyon to the
Utah-Arizona boundary line. There had been seventeen through trips
over a period of sixty years from the original exploration, and
these, together with sporadic trips on parts of the stretch and
considerable use -- in connection with gold placer mining -- of
other parts from 1888 to 1915, sufficed to sustain navigability.
[
Footnote 58]
Effect of Improvability. Respondent denied the
practicability of artificial means to bring about the navigability
of the New River and the effectiveness of any improvement to make
the river a navigable water of the United States. The Government
supported its allegation of improvability by pointing out that the
use of the section for through navigation and local boating on
favorable stretches of the Radford-Wiley's Falls reach showed the
feasibility of such use, and that little was needed in the way of
improvements to make the section a thoroughfare for the typical
light commercial traffic of the area. Keelboats, eight feet wide,
drawing two feet, were the usual equipment. In the 1872 report of
the Chief of Engineers, Major Craighill in charge of New River
reports that to get "good sluice navigation of 2 feet at all times"
for 54 miles up from the mouth of the Greenbrier River near Hinton
would cost $30,000, and for 128 miles, Greenbrier to the lead mines
(above Allisonia) would cost $100,000. The depth over the shoals
could be increased to 2 feet without "too much increase
Page 311 U. S. 418
of velocity of the current." This recommendation was based on
Hutton's mile-by-mile survey, and includes all of the
Radford-Wiley's Falls section.
The improvements were undertaken beginning in 1887. As the
region was becoming better developed, a higher type of improvement
became desirable, wider sluice ways and a deeper channel, usable by
small steamboats. Work went forward above Hinton and above Radford
to meet the pressing demands of the communities. Annual reports of
the Chief of Engineers assumed or reaffirmed the navigability of
the entire river above Hinton and the practicality of the
improvements. [
Footnote 59]
By 1891, $109,733.21 had been spent. It was in that year estimated
$159,000 more would be required to complete the project the full
length from Wilson Creek to Hinton. [
Footnote 60] Useful navigation moved regularly between
Hinton and near Glenlyn and between Radford and Allisonia. About
half the reach between Hinton and Allisonia was improved. The
Radford-Wiley's Falls section was never improved. It was reported
that conditions had changed, and the project should not be
completed. [
Footnote 61] The
provisions for improvements were repealed in 1902. [
Footnote 62] By 1912, the region's need for
use of the river had so diminished that the army engineers advised
against undertaking improvements again, and even referred to the
cost as "prohibitive." [
Footnote
63] From the use of the Radford-Wiley's Falls stretch and the
evidence as to its ready improvability at a low cost for easier
keelboat use, we conclude that this section of the New River is
navigable. It follows from this, together with the undisputed
commercial
Page 311 U. S. 419
use of the two stretches above Radford and Hinton, that the New
River from Allisonia, Virginia, to Hinton, West Virginia, is a
navigable water of the United States.
License Provisions. The determination that the New
River is navigable eliminates from this case issues which may arise
only where the river involved is nonnavigable. [
Footnote 64] But, even accepting the
navigability of the New River, the respondent urges that certain
provisions of the license, which seek to control affairs of the
licensee, are unconnected with navigation and are beyond the power
of the Commission -- indeed beyond the constitutional power of
Congress -- to authorize.
The issue arises because of the prayer of the bill that the
respondent be compelled to accept the license as required by law or
remove the dam as an obstruction, and the answer of the respondent
that the license required by law and tendered to it by the
Commission contains provisions, unrelated to navigation or the
protection of navigable capacity, which are beyond the
constitutional authority of Congress to require on account of the
Fifth and Tenth Amendments. There is no contention that the
provisions of the license are not authorized by the statute. In the
note below, [
Footnote 65]
the chief
Page 311 U. S. 420
statutory conditions for a license are epitomized. The license
offered the respondent on May 5, 1931, embodied these statutory
requirements, and we assume it to be in conformity with the
existing administration of the Power Act. We shall pass upon the
validity of only those provisions of the license called to our
attention by the respondent as being unrelated to the purposes of
navigation. These are the conditions derived from sections 10(a),
10(c), 10(d), 10(e) and 14. We do not consider that the validity of
other clauses has been raised by the respondent's general challenge
to the constitutionality of any provision "other than those
relating solely to the protection" of navigable waters. [
Footnote 66] It should also be noted
that no complaint is made of any conditions of the license
dependent upon the authorization of § 10(g), the omnibus
Page 311 U. S. 421
clause requiring compliance with such other conditions as the
Commission may require.
The petitioner suggests that consideration of the validity of §
14, the acquisition clause, and the license conditions based upon
its language are properly to be deferred until the United States
undertakes to claim the right to purchase the project on the
license terms fifty years after its issuance. [
Footnote 67] Assuming that the mere acceptance
of a license would not later bar the objection of unconstitutional
conditions, even when accompanied by a specific agreement to abide
by the statute and license, [
Footnote 68] we conclude that here, the requirements of §
14 so vitally effect the establishment and financing of
respondent's project as to require a determination of their
validity before finally adjudging the issue of injunction.
The respondent's objections to the statutory and license
provisions, as applied to navigable streams, are based on the
contentions (1) that the United States' control of the waters is
limited to control for purposes of navigation, (2) that certain
license provisions take its property without due process, and (3)
that the claimed right to acquire this project and to regulate its
financing, records, and affairs is an invasion of the rights of the
states, contrary to the Tenth Amendment.
Forty-one states join as
amici in support of the
respondent's arguments. While conceding, as of course, that
Congress may prohibit the erection in navigable waters of the
United States of any structure deemed to impair navigation, the
Attorneys General speaking for the states insist that this power of
prohibition does not comprehend a power to exact conditions, which
are unrelated
Page 311 U. S. 422
to navigation, for the permission to erect such structures. To
permit, the argument continues, the imposition of licenses
involving conditions such as this acquisition clause, enabling the
Federal Government to take over a natural resource such as water
power, allows logically similar acquisition of mines, oil, or
farmlands as consideration for the privilege of doing an interstate
business. The states thus lose control of their resources, and
property is withdrawn from taxation in violation of the Tenth
Amendment.
Further, the point is made that a clash of sovereignty arises
between the license provisions of the Power Act and state licensing
provisions. The State of Virginia advances forcibly its contention
that the affirmative regulation of water power projects on its
navigable streams within its boundaries rests with the state,
beyond that needed for navigation.
"While the supremacy of the Federal Government in its own proper
sphere, as delineated in the Constitution, is cheerfully conceded,
yet just as earnestly does Virginia insist upon the supremacy of
her own government in its proper field as established by that
instrument."
Virginia has a Water Power Act. [
Footnote 69] It, too, offers a fifty-year license, with
the right to use the natural resources of the state, the stream
flow, and the beds of the watercourses for the period of the
license or its extensions subject to state condemnation at any time
on Virginia's terms for ascertainment of value. Operation is
likewise regulated by state law. [
Footnote 70] The Commonwealth objects that the
development of its water power resources is subjected to Federal
Power Act requirements such as are detailed above in stating the
respondent's objection, even to the point that Virginia itself may
not build and operate a dam in
Page 311 U. S. 423
navigable water without authorization and regulation by the
Federal Government.
The briefs and arguments at the bar have marshaled reasons and
precedents to cover the wide range of possible disagreement between
Nation and state in the functioning of the Federal Power Act. To
predetermine, even in the limited field of water power, the rights
of different sovereignties, pregnant with future controversies is
beyond the judicial function. The courts deal with concrete legal
issues, presented in actual cases, not abstractions. [
Footnote 71] The possibility of
other uses of the coercive power of license, if it is here upheld,
is not before us. We deem the pictured extremes irrelevant save as
possibilities for consideration in determining the present question
of the validity of the challenged license provisions. To this we
limit this portion of our decision. [
Footnote 72]
The respondent is a riparian owner with a valid state license to
use the natural resources of the state for its enterprise.
Consequently it has as complete a right to the use of the riparian
lands, the water, and the river bed as can be obtained under state
law. The state and respondent, alike, however, hold that waters and
the lands under them subject to the power of Congress to control
the waters for the purpose of commerce. [
Footnote 73] The power flows from the grant to
regulate,
i.e., to "prescribe the rule by which commerce
is to be governed." [
Footnote
74] This includes
Page 311 U. S. 424
the protection of navigable waters in capacity, as well as use.
[
Footnote 75] This power of
Congress to regulate commerce is so unfettered that its judgment as
to whether a structure is or is not a hindrance is conclusive. Its
determination is legislative in character. [
Footnote 76] The Federal Government has
domination over the water power inherent in the flowing stream. It
is liable to no one for its use or nonuse. The flow of a navigable
stream is in no sense private property; "that the running water in
a great navigable stream is capable of private ownership is
inconceivable." Exclusion of riparian owners from its benefits
without compensation is entirely within the Government's
discretion. [
Footnote
77]
Possessing this plenary power to exclude structures from
navigable waters and dominion over flowage and its product, energy,
the United States may make the erection or maintenance of a
structure in a navigable water dependent upon a license. [
Footnote 78] This power is exercised
through § 9 of the Rivers and Harbors Act of 1899, prohibiting
construction without Congressional consent, and through § 4(e) of
the present Power Act.
It is quite true that the criticized provisions summarized above
are not essential to, or even concerned with, navigation as such.
Respondent asserts that the rights of the United States to the use
of the waters is limited to navigation. It is pointed out that the
federal sovereignty over waters was so described in
Port of
Seattle v. Oregon & Washington R. Co., [
Footnote 79]
United States v.
Oregon, [
Footnote
80]
Page 311 U. S. 425
Kansas v. Colorado, [
Footnote 81]
United States v. River Rouge
Company, [
Footnote 82]
and
Wisconsin v. Illinois. [
Footnote 83] The first two of these cases centered around
the issue of title to land under navigable water. Nothing further
was involved as to the use of the water than its navigability. In
Kansas v. Colorado, the point was the Government's
advocacy of the doctrine of sovereign and inherent power to justify
the United States taking charge of the waters of the Arkansas to
control the reclamation of arid lands (pp.
206 U. S.
85-89). There was found no constitutional authority for
irrigation in the commerce clause or the clause relating to
properly of the United States. [
Footnote 84] It cannot be said, however, that the case is
authority for limiting federal power over navigable waters to
navigation, [
Footnote 85]
especially since the stretch of the Arkansas River involved in the
dispute was asserted by the Government to be nonnavigable (p.
206 U. S. 86).
In the
River Rouge controversy, this Court spoke of the
limitation "to the control thereof for the purposes of navigation."
But there, too, it was a question of the riparian owner's use of
his property for access to the channel, a use fixed by state law.
The conclusion that the United States could not interfere, except
for navigation, with his right of access to navigable water
required no appraisal of other rights.
Wisconsin v.
Illinois is a part of the Chicago Drainage Canal litigation.
Insofar as pertinent here, it merely decided that, under a certain
federal statute, [
Footnote
86] there was no authority for diversion of the waters of Lake
Michigan for sanitary purposes (p.
278 U. S.
418). There is no consideration
Page 311 U. S. 426
of the constitutional power to use water for other than
navigable purposes, though it is plain that other advantages occur
(pp.
278 U. S. 415,
278 U. S.
419).
In our view, it cannot properly be said that the constitutional
power of the United States over its waters is limited to control
for navigation. By navigation, respondent means no more than
operation of boats and improvement of the waterway itself. In
truth, the authority of the United States is the regulation of
commerce on its waters. Navigability, in the sense just stated, is
but a part of this whole. Flood protection, watershed development,
recovery of the cost of improvements through utilization of power
are likewise parts of commerce control. [
Footnote 87] As respondent soundly argues, the United
States cannot, by calling a project of its own "a multiple purpose
dam," give to itself additional powers, but, equally truly, the
respondent cannot, by seeking to use a navigable waterway for power
generation alone, avoid the authority of the Government over the
stream. That authority is as broad as the needs of commerce. Water
power development from dams in navigable streams is, from the
public's standpoint, a byproduct of the general use of the rivers
for commerce. To this general power the respondent must submit its
single purpose of electrical production. The fact that the
Commission is willing to give a license for a power dam only is of
no significance in appraising the type of conditions allowable. It
may well be that this portion of the river is not needed for
navigation at this time. Or that the dam proposed may function
satisfactorily with others, contemplated or intended. It may fit in
as a part of the river development. The point is that navigable
waters are subject to national planning and control in the broad
regulation of commerce granted the
Page 311 U. S. 427
Federal Government. The license conditions to which objection is
made have an obvious relationship to the exercise of the commerce
power. Even if there were no such relationship, the plenary power
of Congress over navigable waters would empower it to deny the
privilege of constructing an obstruction in those waters. It may
likewise grant the privilege on terms. It is no objection to the
terms and to the exertion of the power that "its exercise is
attended by the same incidents which attend the exercise of the
police power of the states." [
Footnote 88] The Congressional authority under the
commerce clause is complete unless limited by the Fifth
Amendment.
The respondent urges that, as riparian owner with state approval
of its plans, it is entitled to freedom in the development of its
property, and particularly cannot be compelled to submit to the
acquisition clause with a price fixed at less than a fair value, in
the eminent domain sense at the time of taking. Such a taking, it
is contended, would violate the Fifth Amendment. It is now a
question whether the Government, in taking over the property, may
do so at less than a fair value. It has been shown,
note 77 supra, that there is no
private property in the flow of the stream. This has no assessable
value to the riparian owner. If the Government were now to build
the dam, it would have to pay the fair value, judicially
determined, [
Footnote 89]
for the fast land, nothing for the water power. [
Footnote 90] We assume without deciding
that, by compulsion of the method of acquisition provided in § 14
of the Power Act and the tendered license, these riparian rights
may pass to the United States for less than their value. In our
view, this "is the price which [respondents] must pay to secure the
right to maintain
Page 311 U. S. 428
their dam." The quoted words are the conclusion of the opinion
in
Fox River Company v. Railroad Commission. [
Footnote 91] The case is decisive on
the issue of confiscation. It relates to an acquisition clause in a
Wisconsin license by which a dam in navigable water of the state
might be taken over a such a price as would, this Court assumed,
amount to violation of the due process clause of the Fourteenth
Amendment if it were not for the license provision. Title to the
bank and bed were in the objector, just as, by virtue of the
state's license and the riparian ownership, all rights here belong
to respondent. There, as here, the rights were subject to
governmental "control of navigable waters." [
Footnote 92] The fact that the Fox River case
involved a state, and that this case involves the United States, is
immaterial from the due process standpoint. Since the United States
might erect a structure in these waters itself, even one equipped
for electrical generation, [
Footnote 93] it may constitutionally acquire one already
built.
Such an acquisition or such an option to acquire is not an
invasion of the sovereignty of a state. At the formation of the
Union, the states delegated to the Federal Government authority to
regulate commerce among the states. So long as the things done
within the states by the United States are valid under that power,
there can be no interference with the sovereignty of the state. It
is the nondelegated power which, under the Tenth Amendment, remains
in the state or the people. The water power statutes of the United
States and of Virginia recognize the difficulties of our dual
system of
Page 311 U. S. 429
government by providing, each in its own enactments, for the
exercise of rights of the other. [
Footnote 94]
Reversed and remanded to the District Court with instructions to
enter an order enjoining the construction, maintenance or operation
of the Radford project otherwise than under a license, accepted by
the respondent within a reasonable time, substantially in the form
tendered respondent by the Federal Power Commission on or about May
5, 1931, or, in the alternative, as prayed in the bill.
Reversed.
THE CHIEF JUSTICE took no part in the consideration or decision
of this case.
[
Footnote 1]
30 Stat. 1151, 33 U.S.C. §§ 401, 403.
[
Footnote 2]
41 Stat. 1063. The Act was amended by 49 Stat. 838 (1935),
U.S.C. Supp. V, Title 16, § 791a
et seq., by which it
became known as the Federal Power Act.
[
Footnote 3]
Section 10(i).
[
Footnote 4]
36 Op.Atty.Gen. 355.
[
Footnote 5]
Originally it consisted of three cabinet officers,
ex
officio: the Secretaries of War, Interior, and Agriculture. By
46 Stat. 797, it was reorganized into an independent Commission
with five members. The new Commission began to function on December
22, 1930.
[
Footnote 6]
Appalachian Electric Power Co. v. Smith, 67 F.2d 451,
cert. denied, 291 U.S. 674.
[
Footnote 7]
In both courts below the Government unsuccessfully urged that
the findings of the Commission, if supported by substantial
evidence, were conclusive. Although it still regards this
contention as correct, the Government does not seek to have this
Court pass on it in this case.
[
Footnote 8]
309 U.S. 646.
[
Footnote 9]
107 F.2d 769, 780, 787.
[
Footnote 10]
United States v. Utah, 283 U. S.
64,
283 U. S.
87.
[
Footnote 11]
Brewer-Elliott Oil Co. v. United States, 260 U. S.
77,
260 U. S. 86;
e.g., Alabama Power Co v. Ickes, 302 U.
S. 464,
302 U. S. 477;
Pick Mfg. Co. v. General Motors Corp., 299 U. S.
3;
Texas & N.O. R. Co. v. Ry. Clerks,
281 U. S. 548,
281 U. S. 558;
United States v. O'Donnell, 303 U.
S. 501,
303 U. S.
508.
[
Footnote 12]
United States v. Rio Grande Irrigation Co.,
174 U. S. 690,
174 U. S. 699;
Leovy v. United States, 177 U. S. 621;
Economy Light Co. v. United States, 256 U.
S. 113,
256 U. S. 117;
United States v. Holt Bank, 270 U. S.
49,
270 U. S.
55.
[
Footnote 13]
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 189;
Leovy v. United States, 177 U. S. 621,
177 U. S.
632.
[
Footnote 14]
Gilman v.
Philadelphia, 3 Wall. 713,
70 U. S.
724-725;
United States v.
Coombs, 12 Pet. 72,
37 U. S. 78.
[
Footnote 15]
Willson v. Black Bird Creek
Marsh Co., 2 Pet. 245,
27 U. S. 250;
United States v. Rio Grande Irrigation Co., 174 U.
S. 690,
174 U. S.
703.
[
Footnote 16]
United States v. River Rouge Co., 269 U.
S. 411,
269 U. S.
419.
[
Footnote 17]
St. Anthony Falls Water Power Co. v. Water
Commissioners, 168 U. S. 349,
168 U. S. 366;
United States v. Rio Grande Irrigation Co., 174 U.
S. 690,
174 U. S.
702.
[
Footnote 18]
Arizona v. California, 283 U.
S. 423,
283 U. S.
452.
[
Footnote 19]
The Montello,
20 Wall. 430,
87 U. S.
441.
[
Footnote 20]
United States v. Utah, 283 U. S.
64,
283 U. S.
83.
[
Footnote 21]
77 U. S. 10 Wall.
557,
77 U. S.
563:
". . . Those rivers must be regarded as public navigable rivers
in law which are navigable in fact. And they are navigable in fact
when they are used, or are susceptible of being used, in their
ordinary condition, as highways for commerce, over which trade and
travel are or may be conducted in the customary modes of trade and
travel on water. And they constitute navigable waters of the United
States within the meaning of the acts of Congress, in
contradistinction from the navigable waters of the States, when
they form in their ordinary condition by themselves, or by uniting
with other waters, a continued highway over which commerce is or
may be carried on with other States or foreign countries in the
customary modes in which such commerce is conducted by water."
United States v. Appalachian Electric Power
Co., 23 F. Supp.
83, 98;
id., 107 F.2d 769, 780.
[
Footnote 22]
United States v. Rio Grande Irrigation Co.,
174 U. S. 690,
174 U. S. 698;
Brewer-Elliott Oil Co. v. United States, 260 U. S.
77,
260 U. S. 86;
United States v. Holt Bank, 270 U. S.
49,
270 U. S. 56;
United States v. Utah, 283 U. S. 64,
283 U. S. 76;
United States v. Oregon, 295 U. S. 1,
295 U. S. 15.
[
Footnote 23]
23 F. Supp. at 99, 100.
[
Footnote 24]
107 F.2d at 786.
[
Footnote 25]
United States v. Oregon, 295 U. S.
1,
295 U. S. 15.
[
Footnote 26]
Thus, in the
Rio Grande case, the record contained
reports of army engineers that improvements necessary to make the
river navigable would be financially, if not physically,
impracticable because of the many millions of dollars that would be
required. The Supreme Court of the Territory of New Mexico observed
that
"the navigability of a river does not depend upon its
susceptibility of being so improved by high engineering skill and
the expenditures of vast sums of money, but upon its natural
present conditions."
9 N.M. 292, 299, 51 P. 674, 676. This Court agreed that too much
improvement was necessary for the New Mexico stretch of the river
to be considered navigable.
United States v. Rio Grande
Irrigation Co., 174 U. S. 690,
174 U. S.
699.
[
Footnote 27]
Economy Light Co. v. United States, 256 U.
S. 113.
[
Footnote 28]
See 107 F.2d at 780.
[
Footnote 29]
Shively v. Bowlby, 152 U. S. 1,
152 U. S. 18, and
152 U. S. 26;
United States v. Utah, 283 U. S. 64,
283 U. S.
75.
[
Footnote 30]
Oklahoma v. Texas, 258 U. S. 574,
258 U. S. 591,
258 U. S. 594;
United States v. Oregon, 295 U. S. 1,
295 U. S. 14.
[
Footnote 31]
Cf. United States v. Rio Grande Irrigation Co.,
174 U. S. 690,
174 U. S.
699.
[
Footnote 32]
Art. III, section 2, cl. 1.
Cf. 53 U.
S. Fitzhugh, 12 How. 443.
[
Footnote 33]
The Robert W. Parsons, 191 U. S.
17,
191 U. S. 28;
Ex parte Boyer, 109 U. S. 629;
Marine Transit Corp. v. Dreyfus, 284 U.
S. 263,
284 U. S.
271-272.
[
Footnote 34]
The Montello,
20 Wall. 430,
87 U. S.
442-443;
Economy Light Co. v. United States,
256 U. S. 113,
256 U. S. 122;
United States v. Utah, 283 U. S. 64,
283 U. S. 86.
See also Mr. Justice McLean in
Spooner v.
McConnell,, 22 Fed.Cas. 939 at 944.
[
Footnote 35]
Illustrative of this natural growth is
United States v.
Cress, 243 U. S. 316,
involving riparian proprietors' rights where improvements raise the
river level so that uplands are newly and permanently subjected to
the servitude of public use of navigation. Compensation was decreed
for the taking with a declaration that the waterways in question,
are artificially improved, remained navigable waters of the United
States (pp.
243 U. S.
325-326).
Cf. Arizona v. California,
283 U. S. 423,
283 U. S.
454.
[
Footnote 36]
Cf. Barnes v. United States, 46 Ct.Cl. 7, 28.
[
Footnote 37]
United States v. Utah, 283 U. S.
64;
Arizona v. California, 283 U.
S. 423,
283 U. S.
452-454.
[
Footnote 38]
United States v. Utah, 283 U. S.
64,
283 U. S.
82.
[
Footnote 39]
Ashwander v. Tennessee Valley Authority, 297 U.
S. 288,
297 U. S.
329.
[
Footnote 40]
Economy Light Co. v. United States, 256 U.
S. 113,
256 U. S. 124;
Arizona v. California, 283 U. S. 423,
283 U. S.
453.
[
Footnote 41]
Cf. 87 U. S. 20
Wall. 430,
87 U. S.
441.
[
Footnote 42]
See 23 F. Supp. at 91.
[
Footnote 43]
This is shown by the testimony of Weiss, Peters, Starbuck, Lane,
E. M. Smith, Farley, Kenley, Lucas, E. W. Lilly, W. L. Burks, Z. v.
Burks, Johnson, Wauhop, Stover, R. Calloway, J. C. Martin, Tomkies,
and B.C. Lilly.
[
Footnote 44]
E.g., the testimony of R. L. Howard, Graham, J.
Breeding, Owen, Z. Farmer, H.B. Allison, J. H. Howard, Peterson,
Moore, Likens, Roop, and Ingles.
In 1885 the assistant engineer reported that,
"from inquiries, it is thought that the channel-way made in
former years [on the improved sections] still keeps open, and
bateaux are in constant use on them, iron having been shipped to
New River bridge up to time of the suspension of the furnaces by
the prevailing hard times."
Report of the Chief of Engineers for 1886.
[
Footnote 45]
Act June 10, 1872, 17 Stat. 376.
[
Footnote 46]
At different times before 1935, ferries crossed the river at no
less than ten points along the Radford-Wiley's Falls stretch. In
1935, there were five such public ferries.
[
Footnote 47]
Report of Moore and Briggs. Fourth and Fifth Annual Reports of
the Board of Public Works to the General Assembly of Virginia
(1819). Report of the Principal Engineer of the Board of Public
Works.
While Marshall was Chief Justice, he was head of a Virginia
commission which had surveyed part of the New River by boat in
1812, but only going downstream from the mouth of the Greenbrier.
Report of the Commissioners, printed 1816.
[
Footnote 48]
Virginia Acts of 1861-62, c. 50.
[
Footnote 49]
"But little has been done in the way of improving the river
since the time of Moore and Briggs, though an effort is said to
have been made in that direction by the confederate government in
the late war."
Report of Chief of Engineers for 1873.
"Experience as developed by the universal fate of the work of
the late Confederate States on this river (though this seems to
have been injudiciously located and poorly built), is adverse to
anything like rigid structures, . . ."
Report of Chief of Engineers for 1879.
[
Footnote 50]
Testimony of Snyder, Snidow, Skeen.
[
Footnote 51]
107 F.2d at 783.
[
Footnote 52]
See 23 F. Supp. at 93; 107 F.2d at 786.
Testimony of bateaux going from Radford, or above, to Hinton, is
given by Flannagan, Linkous, Collins, Webb, Snyder.
A boat, 50 feet by 8, with a gasoline motor, went from Radford
to Hinton in 1901, though after the river had been materially
raised by a rain.
[
Footnote 53]
E.g., testimony of Coleman, Howard, Webb, Snyder,
Price, Martin, Anderson.
[
Footnote 54]
Report of the Chief of Engineers for 1883.
See also
testimony of Owen, Crowell, Dickinson.
[
Footnote 55]
Economy Light Co. v. United States, 256 F. 792, 797,
798,
aff'd, 256 U. S. 256 U.S.
113.
[
Footnote 56]
United States v. Utah, 283 U. S.
64,
283 U. S.
82.
[
Footnote 57]
283 U. S. 283 U.S.
64,
283 U. S.
81.
[
Footnote 58]
See the Report of the Master, pp. 127
et
seq.
[
Footnote 59]
Report for 1878, pp. 69, 495-99; 1879, pp. 79, 530-45; 1880, pp.
107-08, 676-81; 1881, pp. 144-45, 904-11; 1882, pp. 140-42, 913-19;
1883, pp. 144-45, 699-705; 1886, pp. 281-82, 1599-1602.
[
Footnote 60]
Report of the Chief of Engineers for 1891, p. 303.
[
Footnote 61]
Id. at 302-303.
[
Footnote 62]
Act June 13, 1902, 32 Stat. 374.
[
Footnote 63]
House Doc. No. 1410, 62nd Cong., 3d Sess., p. 3.
[
Footnote 64]
Cf. United States v. Appalachian Electric Power Co.,
107 F.2d 769, 793
et seq.
[
Footnote 65]
Section 4(a) of the Act allows the Commission to regulate the
licensee's accounts.
Section 6 limits licenses to 50 years.
Section 8 requires Commission approval for voluntary transfers
of licenses or rights granted thereunder.
Section 10(a), as amended in 1935, requires that the project be
best adapted to a comprehensive plan for improving or developing
the waterway for the use or benefit of interstate or foreign
commerce, for the improvement and utilization of water power
development, and for other beneficial public uses, including
recreational purposes. Under § 10(c), the licensee must maintain
the project adequately for navigation, and, for efficient power
operation, must maintain depreciation reserves adequate for
renewals and replacements, and must conform to the Commission's
regulations for the protection of life, health and property; (d)
out of surplus earned after the first 20 years above a specified
reasonable rate of return, the licensee must maintain amortization
reserves to be applied in reduction of net investment; (e) the
licensee must pay the United States reasonable annual charges for
administering the Act, and, during the first 20 years, the United
States is to expropriate excessive profits until the state prevents
such profits; (f) the licensee may be ordered to reimburse those by
whose construction work it is benefited.
By § 11, for projects in navigable waters of the United States
the Commission may require the licensee to construct locks, etc.,
and to furnish the United States free of cost(a) lands and
rights-of-way to improve navigation facilities, and (b) power for
operating such facilities.
Section 14 gives the United States the right, upon expiration of
a license, to take over and operate the project by paying the
licensee's "net investment" as defined, not to exceed fair value of
the property taken. However, the right of the United States or any
state or municipality to condemn the project at any time is
expressly reserved.
Section 19 allows state regulation of service and rates; if none
exists, the Commission may exercise such jurisdiction.
[
Footnote 66]
Denver Stock Yard Co. v. United States, 304 U.
S. 470,
304 U. S. 484;
Pacific States Box & Basket Co. v. White, 296 U.
S. 176,
296 U. S.
184.
[
Footnote 67]
Cf. Electric Bond & Share Co. v. Securities and Exchange
Comm'n, 303 U. S. 419,
303 U. S. 435;
W. W. Cargill Co. v. Minnesota, 180 U.
S. 452,
180 U. S. 468;
New Jersey v. Sargent, 269 U. S. 328,
269 U. S.
339.
[
Footnote 68]
Section 6.
[
Footnote 69]
Michie's 1936 Code, §§ 3581(1) to 3581(16).
[
Footnote 70]
Michie's 1936 Code, §§ 4065a, 4066.
[
Footnote 71]
Cherokee Nation v.
Georgia, 5 Pet. 1,
30 U. S. 75;
United States v. West Virginia, 295 U.
S. 463,
295 U. S. 474;
New Jersey v. Sargent, 269 U. S. 328;
cf. McGuinn v. High Point, 217 N.C. 449, 458, 8 S.E.2d
462.
[
Footnote 72]
Ashwander v. Tennessee Valley Authority, 297 U.
S. 288,
297 U. S.
339.
[
Footnote 73]
New Jersey v. Sargent, 269 U.
S. 328,
269 U. S. 337;
United States v. River Rouge Co., 269 U.
S. 411,
269 U. S. 419;
United States v. Cress, 243 U. S. 316,
243 U. S. 320;
Willink v. United States, 240 U.
S. 572,
240 U. S. 580;
United States v. Chandler-Dunbar Co., 229 U. S.
53,
229 U. S. 62;
Gibson v. United States, 166 U. S. 269,
166 U. S.
271.
[
Footnote 74]
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 196.
[
Footnote 75]
Gilman v.
Philadelphia, 3 Wall. 713,
70 U. S.
725.
[
Footnote 76]
United States v. Chandler-Dunbar Co., 229 U. S.
53,
229 U. S. 64,
65;
Union Bridge Co. v. United States, 204 U.
S. 364,
204 U. S. 400;
cf. 54 U. S. Wheeling
Bridge Co., 13 How. 518;
59 U. S. 18 How.
421.
[
Footnote 77]
United States v. Chandler-Dunbar Co., 229 U. S.
53,
229 U. S. 66,
229 U. S. 69,
229 U. S. 76;
cf. Ashwander v. Tennessee Valley Authority, 297 U.
S. 288,
297 U. S.
330.
[
Footnote 78]
Greenleaf Lumber Co. v. Garrison, 237 U.
S. 251,
237 U. S. 268;
United States v. Rio Grande Irrigation Co., 174 U.
S. 690,
174 U. S.
707.
[
Footnote 79]
255 U. S. 255 U.S.
56,
255 U. S.
63.
[
Footnote 80]
295 U. S. 295 U.S.
1,
295 U. S. 14.
[
Footnote 81]
206 U. S. 206 U.S.
46,
206 U. S.
85-86.
[
Footnote 82]
269 U. S. 269 U.S.
411,
269 U. S.
419.
[
Footnote 83]
278 U. S. 278 U.S.
367,
278 U. S.
415.
[
Footnote 84]
Art. 1, § 8, cl. 3; Art. IV, § 3, cl. 2.
[
Footnote 85]
Cf. United States v. Hanson, 167 F. 881, 884;
Cincinnati Soap Co. v. United States, 301 U.
S. 308,
301 U. S.
322.
[
Footnote 86]
Cf. Sanitary District v. United States, 266 U.
S. 405,
266 U. S.
428.
[
Footnote 87]
Cf. Ashwander v. Tennessee Valley Authority,
297 U. S. 288.
[
Footnote 88]
United States v. Carolene Products Co., 304 U.
S. 144,
304 U. S. 147.
Cf. Mulford v. Smith, 307 U. S. 38,
307 U. S.
48.
[
Footnote 89]
Monongahela Navigation Co. v. United States,
148 U. S. 312,
148 U. S.
327.
[
Footnote 90]
United States v. Chandler-Dunbar Co., 229 U. S.
53,
229 U. S. 66,
229 U. S.
76.
[
Footnote 91]
274 U. S. 274 U.S.
651.
[
Footnote 92]
274 U. S. 274
U.S. 656.
[
Footnote 93]
Ashwander v. Tennessee Valley Authority, 297 U.
S. 288;
Arizona v. California, 283 U.
S. 423.
[
Footnote 94]
Sections 10(e), 14, and 19 of the Federal Power Act; Michie's
1936 Virginia Code, § 3581(9).
MR. JUSTICE ROBERTS, dissenting.
The judgment of reversal rests on the conclusion that New River
is navigable -- a conclusion resting on findings of fact, made here
de novo, and in contradiction of the concurrent findings
of the two courts below. I am of opinion that the judgment of the
Circuit Court of Appeals should be affirmed, first, because this
court ought to respect and give effect to such concurrent findings
which have substantial support in the evidence; secondly, because
the evidence will not support contrary findings if the navigability
of New River be tested by criteria long established.
1. A river is navigable in law if it is navigable in fact.
[
Footnote 2/1] Indeed, the issue of
navigability
vel non is so peculiarly one of fact that a
determination as to one stream can have little relevancy in
determining the status of another.
Page 311 U. S. 430
As this court has said, "each determination as to navigability
must stand on its own facts." [
Footnote
2/2]
The evidence supports -- indeed, I think it requires -- a
finding that, applying accepted criteria, New River is not, and
never has been, in fact navigable. On this record, the rule of
decision, many times announced by this Court, that the concurrent
findings of fact of two lower courts, if supported by substantial
evidence, will be accepted here, requires affirmance of the
judgment. The rule applies not only to evidentiary facts, but to
conclusions of fact based thereon. Moreover, it has been the basis
of this court's decision in a suit involving the question of
navigability. Invoking the rule, this court, in
Brewer-Elliott
Oil & Gas Co. v. United States, 260 U. S.
77,
260 U. S. 86,
declined to review a judgment based on a concurrent finding of two
lower courts that a stream "was not, and had never been, navigable
within the adjudged meaning of that term."
The cases cited for the proposition that, where navigability was
an issue, this court has reconsidered the facts found by the courts
below to determine whether they have correctly applied the proper
legal tests do not, when the questions involved are understood,
lend support to the action of the court in this case. [
Footnote 2/3]
Page 311 U. S. 431
The petitioner, in effect, asks this court to convict the courts
below of error in determining the credibility, weight, and
relevance of the evidence. But that determination is peculiarly
within their province, as this Court has often said. The doctrine
applies in this case with especial force. The respondent says,
without contradiction, that the Government, in its brief in the
Circuit Court, stated: "It cannot be said that the New River
presents a
clear case' of navigability or non-navigability. . .
." Yet this court is asked to ignore concurrent findings on the
subject.
If the evidence may fairly support these findings, the courts
below can be convicted of error only in applying an erroneous rule
of law to the facts found.
Examination of the opinions below shows that the courts
faithfully followed the decisions of this court in applying the law
to the facts. They adopted the definition [
Footnote 2/4] and applied the criteria this Court has
announced in appraising the effect of the facts found.
As shown by the cases cited in the margin, [
Footnote 2/5] a stream, to be navigable in fact,
must have "a capacity for general and common usefulness for
purposes of trade and commerce." Exceptional use or capability of
use at high water or under other abnormal conditions will not
suffice.
Page 311 U. S. 432
Moreover, the stream must be used, or available to use, "for
commerce of a substantial and permanent character." Where the
stream
"has never been impressed with the character of navigability by
past use in commerce, . . . commerce actually
in esse or
at least
in posse is essential to navigability,"
and "a theoretical or potential navigability, or one that is
temporary, precarious, and unprofitable, is not sufficient." The
most important criterion by which to ascertain the navigability of
a stream is that navigability in fact must exist under "natural and
ordinary conditions." Application of these tests by the court below
to the evidence in the case led to but one conclusion -- that New
River has not been, and is not now, a navigable water of the United
States. If the findings below had been the other way, the
Government would be here strenuously contending that they could not
be set aside, as it successfully did in
Brewer-Elliott Oil
& Gas Co. v. United States, supra.
2. The petitioner contends that the application of the accepted
tests to the facts disclosed amounts to a ruling of law, and
asserts that error in their application is reviewable. As I read
the court's opinion, the argument is not found persuasive. While
apparently endorsing it in the abstract, the court, instead of
relying on it, adopts two additional tests in the teeth of the
uniform current of authority. If anything has been settled by our
decisions, it is that, in order for a water to be found navigable,
navigability in fact must exist under "natural and ordinary
conditions." This means all conditions, including a multiplicity of
obstacles, falls, and rapids which make navigation a practical
impossibility. The court now, however, announces that "natural and
ordinary conditions" refers only to volume of water, gradients, and
regularity of flow. No authority is cited, and I believe none can
be found for thus limiting the
Page 311 U. S. 433
connotation of the phrase. But, further, the court holds,
contrary to all that has heretofore been said on the subject, that
the natural and ordinary condition of the stream, however
impassable it may be without improvement, means that if, by
"reasonable" improvement, the stream may be rendered navigable,
then it is navigable without such improvement; that "there must be
a balance between cost and need at a time when the improvement
would be useful." No authority is cited, and I think none can be
cited which countenances any such test. It is, of course, true
that, if a stream in its natural and ordinary condition is
navigable, it does not cease to be so because improvements have
bettered the conditions of navigation. [
Footnote 2/6] But the converse is not true -- that,
where a stream in its natural and ordinary condition is
nonnavigable, a project to build a canal along its entire course,
or dams and locks every few miles at enormous expense, would render
it a navigable water of the United States. Who is to determine what
is a reasonable or an unreasonable improvement in the
circumstances, or what is a proper balance between cost and need?
If these questions must be answered, it is for Congress --
certainly not for this court -- to answer them. If this test be
adopted, then every creek in every state of the Union which has
enough water, when conserved by dams and locks or channeled by wing
dams and sluices, to float a boat drawing two feet of water, may be
pronounced navigable because, by the expenditure of some enormous
sum, such a project would be possible of execution. In other words,
Congress can create navigability by determining to improve a
nonnavigable stream.
If this criterion be the correct one, it is not seen how any
stream can be found not to be navigable, nor is it
Page 311 U. S. 434
seen why this court and other federal courts have been at pains
for many years to apply the other tests mentioned when the simple
solution of the problem in each case would have been to speculate
as to whether, at "reasonable" cost, the United States could render
a most difficult and forbidding mountain torrent suitable for the
least pretentious form of water traffic. In the light of the
court's opinion, if this test be applied to the New River, it must,
of course, be admitted that, by blasting out channels through reefs
and shoals, by digging canals around falls and rapids, and possibly
by dams and locks, the New River could be rendered fit for some
sort of commercial use. What the expense would be, no one knows.
Obviously it would be enormous. Congress in the past has undertaken
to render the river navigable, and decades ago gave up the attempt.
Still we are told that, at "reasonable" cost, the thing can be
done, and so the stream is navigable.
In the light of the grounds upon which the decision of the Court
is based, it hardly seems necessary to comment on the evidence, for
it is, in the main, addressed to issues no longer in the case. The
two courts below have analyzed it and examined it in detail, and
reference to their carefully considered opinions suffices.
[
Footnote 2/7] I think the
conclusion reached by the courts below must stand unless the two
novel doctrines now announced be thrown into the scale to overcome
it.
MR. JUSTICE McREYNOLDS concurs in this opinion.
[
Footnote 2/1]
Oklahoma v. Texas, 258 U. S. 574,
258 U. S. 585,
258 U. S.
590-591;
Arizona v. California, 283 U.
S. 423,
283 U. S. 452;
Crowell v. Benson, 285 U. S. 22,
285 U. S.
55.
[
Footnote 2/2]
United States v. Utah, 283 U. S.
64,
283 U. S.
87.
[
Footnote 2/3]
The cases cited are
United States v. Rio Grande Irrigation
Co., 174 U. S. 690,
174 U. S. 699,
where this court said with respect to the findings: "We are not
therefore disposed to question the conclusion reached," by the
courts below;
Leovy v. United States, 177 U.
S. 621, where a judgment on a jury's verdict was
reversed for error in the judge's instructions as to the criteria
of navigability;
Economy Light Co. v. United States,
256 U. S. 113,
256 U. S. 117,
where the court did not reexamine the facts, but affirmed the
judgment of the Circuit Court of Appeals, as that court had
correctly applied the test laid down in
The Daniel
Ball, 10 Wall. 557, and
United States v. Holt
State Bank, 270 U. S. 49,
270 U. S. 55,
where the courts below treated the question of navigability as one
of local law to be determined by applying the rule adopted in
Minnesota, and this court, though holding that they applied the
wrong standard, as the question was one of federal law, affirmed
the findings, instead of remanding the case, since the record
disclosed that, according to the right standard, the water was
navigable.
[
Footnote 2/4]
Cf. 77 U. S. 10
Wall. 557;
The Montello,
11 Wall. 411,
78 U. S. 415;
United States v. Oregon, 295 U. S. 1,
295 U. S. 23.
[
Footnote 2/5]
The Montello,
20 Wall. 430;
United States v. Rio Grande Co.,
174 U. S. 690;
Leovy v. United States, 177 U. S. 621;
Donnelly v. United States, 228 U.
S. 243;
United States v. Cress, 243 U.
S. 316;
Oklahoma v. Texas, 258 U.
S. 574;
United States v. Holt State Bank,
270 U. S. 49;
United States v. Oregon, 295 U. S. 1;
Harrison v. Fite, 148 F. 781;
Gulf & I. Ry. Co. v.
Davis, 26 F.2d
930;
Davis v. Gulf & I. R. Co., 31 F.2d 109;
United States v. Doughton, 62 F.2d 936.
[
Footnote 2/6]
Economy Light Co. v. United States, 256 U.
S. 113.
[
Footnote 2/7]
23 F. Supp.
83; 107 F.2d 769.