use, in consideration of which there is hereby allocated from the waters of the Colorado River to the State of California 1,095,000 acre-feet of water per annum on perpetuity for beneficial consumptive use.

(b) There is hereby allocated to the State of Nevada such waters of the Colorado River as can be put to beneficial use within the State not exceeding 300,000 acre-feet of water per annum for beneficial consumptive use in perpetuity.

(c) There is hereby allocated from waters of the Colorado River to the State of Arizona its present perfected rights to the beneficial consumptive use of 232,000 acre-feet of water per annum in perpetuity.

(d) There is hereby allocated from the waters of the Colorado River to the State of California its present perfected rights, in addition to all other allocations, the beneficial consumptive use of 2,146,600 acre-feet of water per annum in perpetuity.

(e) The use of waters of the Colorado River not otherwise hereinabove expressly allocated is hereby allocated in equal shares to the States of Arizona and California, it being the intention of the signatory States, subject to the terms of the Colorado River compact, to divide for use in said States all of the waters of the Colorado River: Provided, That any water allocated by this paragraph (e) but not actually applied to agricultural or domestic use by January 1, 1975, shall thereafter, notwithstanding the foregoing allocation, be subject to appropriation for use in either Arizona or California.

ART. IV. It is the intention of the signatory States to so divide the waters of the Colorado River as to provide for the maximum thereof within said States, and notwithstanding the foregoing allocations no State shall withhold water and no State shall require the delivery of water which can not reasonably and beneficially be applied to agricultural or domestic use within said State.

ART. V. The chief official of each signatory State charged with administration of water rights, together with the Commissioner of Reclamation of the United States, shall cooperate ex officio to promote the systematic determination and coordination of the facts as to flow appropriation, consumption, and use of water from the Colorado River and the interchange of available information on such matters.

ART. V. That in the event of the United States of America shall construct a dam in the main stream of the Colorado River at or near Boulder Canyon, creating a reservoir of not less than 20,000,000 acre-feet of water, at which hydroelectric power shall be generated by persons or agencies other than the United States of America, then such persons or agencies generating such power at said dam shall each pay to the Secretary of the Interior $1 per annum for each operative horsepower which may be installed by him or for his or its benefits, in addition to any and all other requirements by the United States, which said sums so paid shall be paid by the Secretary of the Interior to the States of Arizona and Nevada in equal parts annually, said payments to be made at such times and under such reasonable regulations and in such installments as the Secretary of the Interior may by general order prescribe. No payment under this article shall be required until power-generating machinery upon which said payment is based shall have been placed in actual operation. The provisions of this article shall not be construed as affecting or intending to affect the taxing power of any of the signatory States, but that in the event any of such persons or agencies generating power at said dam shall pay any tax, assessment, impost, or other liability, demand or charge upon said power or works therefor, under the taxing power of the State or subdivision thereof, then and in that event, for the year immediately following such payment, the amount of money so paid shall be deducted from the amount to be paid to the Secretary of the Interior as hereinabove in this article provided for the benefit of the State to whom such payment was made. The payment of said sums to the said Secretary of the Interior for the benefit of Arizona or Nevada shall be in lieu of all license or other fees now or which may hereafter be required by the said States or either of them for the use, license, or privilege of storing water, or building and operating generating plants, transmission lines or otherwise, in connection with the said dam.

ART. VII. Should any claim or controversy arise between any two or more of the signatory States over the meaning or performance of any of the terms of this compact, then upon the request of the governor of any one or more of the signatory States it shall be the duty of the governors of the signatory States

72578-25-PT 5—9

to appoint a commission with power to consider and adjust such claim or controversy, subject to ratification by the legislatures of the States affected and by the Congress of the United States.

Nothing herein contained, however, shall prevent the adjustment of any such claims or controversies by any then present method or by direct legislative action of the interested States, with the approval of the Congress of the United States.

ART. VIII. In the event this compact should at any time be terminated by unanimous agreement of the signatory States, all rights established under it shall nevertheless continue unimpaired.

ART. IX. The provisions of this compact have reference to the use of the waters of the Colorado River for agricultural and domestic use only and have no reference to the use of said waters for the generation of electric power, except that the use of said waters for the generation of electric power shall forever be and remain subordinate to the use thereof for agricultural and domestic purposes, and except further as herein before expressly provided in Article VI hereof.

ART. X. Jurisdiction in the United States of America to construct the said dam and incidental works referred to in Article VI hereof is hereby conceded, and consent is hereby expressly given by the signatory States to said construction and to the use and benefit of any property of the respective signatory States which may be found necessary or convenient of use by the United States of America for said purpose.

ART. XI. This compact shall become binding and obligatory when the Colorado River compact has become binding and obligatory upon all of the signatory States thereto and when this compact shall have been approved by the legislatures of each of the signatory States hereto and by the Congress of the United States. Notice of the approval of the legislature shall be given by the governors of each of the signatory States to the governors of the other signatory States and to the President of the United States, and the President of the United States is requested to give notice to the governors of the signatory States of the approval by the Congress of the United States.

In witness whereof the representatives of the States of Arizona, California, and Nevada have signed this compact in a single original, which shall be deposited in the archives of the Department of State of the United States of America, and of which a duly certified copy shall be forwarded to the governor of each of the signatory States.

Representatives of Arizona.

Representatives of California.

Representatives of Nevada.

Hon. CHAS. L. MCNARY,

PHILADELPHIA, November 16, 1925.

United States Senate, Washington, D. C.

MY DEAR SENATOR: You will perhaps recall that on the recent trip in connection with the Colorado River problems you requested information in reference to the length, width, and size of the Boulder Canyon Reservoir and the dam to be constructed in Black Canyon. I am, for your convenience, forwarding you some general information in reference to the dam and reservoir.

Yours very truly,

F. E. WEYMOUTH, President Brock & Weymouth (Inc.).

(Statement submitted with Mr. Weymouth's letter)

BOULDER CANYON RESERVOIR

BLACK CANYON DAM

(Backing up to Bridge Canyon dam site; elevation, 1,207)

Upper end of reservoir about 20 miles above eastern line of State of Nevada.

RESERVOIR AND POWER PLANT

Raise in water, 555 feet.

Capacity for flood control reserved would be 6,000,000 acre-feet at start and gradually decline as other reservoirs and dams are added above and below.

Decline in water supply by depletion above would be offset by increasing average usable power head at Boulder as flood-control storage reserve de

MEMORANDUM OF LAW POINTS AND AUTHORITIES RESPECTING THE RIGHTS OF

ARIZONA IN THE COLORADO RIVER

[I'repared by Samuel White, attorney at law, Phoenix, Ariz.]

THE COLORADO RIVER IS A NAVIGABLE STREAM

It is so described in the Swing-Johnson bill, introduced in Congress by the California delegation to authorize the construction of a dam at Boulder Canyon. It has always been so treated by the Government of the United States in the official survey of public lands bordering upon banks, and the character of the stream meets the legal definition of what constitutes navigability. In England those waters only, including rivers, were regarded as navigable in which the tide ebbed and flowed. This doctrine was early repudiated by the United States as being unfitted to the conditions in this country, where many of the rivers are, in fact, navigable for many miles above the highest reach of the tide, as well as the Great Lakes on the north and many inland

lakes, in which there is no tide and which were also navigable and, in fact, used as great highways for commerce.

The Supreme Court of the United States examined this question many years ago in the case of the Daniel Ball v. United States (19 L. ed. 999), and said:

"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 of commerce, over which trade or travel are or may be conducted in the customary modes of trade and travel on water."

To the same effect may be cited Moore v. Sanborne (2 Mich. 519); Brown v. Chadbourne (31 Maine 9); the Montello (U. S.) (22 L. ed. 391); Hickock v. Hine (23 Ohio State 523); Diedrich v. Railway Co. (42 Wis. 248); Attorney General . Woods (108 Mass. 436); Rowe v. Granite Co. (21 Pick (Mass.) 344); Railway Co. v. Brooks (39 Ark. 403).

In the case of Economy Light & Power Co. v. United States (65 L. ed. 847) the question involved was the navigability of the Des Plaines River in the State of Illinois. It was held to be a navigable river by the Supreme Court of the United States, although there was no evidence of actual navigation within the memory of living man, and that there would not be any interference with navigation by the construction of the dam. But the court found that in its natural state the river was navigable in fact, and that it was actually used for the purposes of navigation and trading in the customary way and with the kinds of craft ordinarily in use for that purpose on rivers of the United States, from early fur-trading days (about 1675) down to the end of the first quarter of the nineteenth century. The court again defined the test of navigability:

"The test is whether the river, in its natural state, is used, or capable of being used, as a highway of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. Navigability, in the sense of the law, is not destroyed because the watercourse is interrupted by occasional natural obstructions or portages, nor need the navigation be open at all seasons of the year or at all stages of the water." If the Colorado be not a navigable stream, the Federal Power Commission has no interest in or jurisdiction over the stream. The title of the act and the powers of the commission are: "To provide for the improvement of navi gation, the development of water power, and the use of the public lands in relation thereto; and the term 'public lands' is defined by the act to mean such lands and interests in lands owned by the United States as are subject to private appropriation and disposal under public land laws."

The fact that a stream, because of falls or rapids, does not furnish the means of unbroken navigation, does not affect its navigability. In the Montello case, supra, the Supreme Court of the United States said:

*

"The learned judge of the court below rested his decision against the navi gability of the Fox River below DePere Rapids chiefly on the ground that there were before the river was improved obstructions to an unbroken navigation. Apart from this, however, the rules laid down by the district judge as a test of navigability can not be adopted, for it would exclude many of the great rivers of the country, which are so interrupted by rapids as to require artificial means to enable them to be navigated without break. Indeed," there are but few of our fresh-water rivers which did not orig.nally present serious obstructions to an uninterrupted navigation. In some cases, like the Fox, they may be so great while they last as to prevent the use of the best instrumentalities for carrying on commerce; but the vital and essential point is whether the natural navigation of the river is such that it affords a channel for useful commerce. If this be so, the river is navigable in fact, although its navigation may be encompassed with difficulties by reason of natural barriers, such as rapids and sandbars."

The statement of law as summarized in 29 Cyc. 289 is abundantly sup ported by the decided causes:

"Water is navigable in law, although not tidal, where navigable in fact. and is navigable in fact where it is of sufficient capacity to be capable of being used for useful purposes of navigation, that is. for trade and travel in the usual and ordinary modes. This rule is not only the one which prevails in nearly all of the States in the country, but was also the rule under the civil law * * *. It is immaterial that the stream is not navigable in its entirety if it is in fact navigable in whole or in part."

And again:

"Navigable waters do not lose their character as such because interrupted by falls, if they can be used for purposes of commerce both above and below the falls, nor because of the existence of other obstructions not preventing navigation."

The State of Arizona is the absolute owner of the bed of the Colorado: River, where it lies wholly within the State, and to the center of the stream where it constitutes the boundary between Arizona and the State of Nevada and between Arizona and the State of California.

Arizona was admitted to the Union upon an equal footing with the original States. It is so provided in the enabling act, and it is so declared in the proclamation of President Taft admitting the State into the Union.

Upon her admission to the Union, Arizona at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original States and could, therefore, exercise the same powers over navigable rivers within her limits as were possessed by the original States. The shores of navigable waters and the soil under them, between high and low-water mark, were not granted by the Constitution to the United States, but were reserved to the States respectively, and the new States have the same rights and jurisdiction on this subject as the original States. Congress can not grant lands below high-water mark on navigable water in a State. In Pollard v. Hagen (11th U. S. L. ed. 565) the Supreme Court of the United States considered this question with great care, and the law then announced by that court has continued unchallenged to this day as the law of this country. In that case the plaintiff held a patent from the United States, issued by virtue of an act of Congress, for the land lying below high water in the Mobile River near the point where it discharges into Mobile Bay. In that case the court said:

"When Alabama was admitted into the Union on an equal footing with the original States, she succeeded to all the rights of sovereignty, jurisdiction, and eminent domain which Georgia possessed at the date of the cession, except so far as this right was diminshed by the public lands remaining in the possession and under the control of the United States for the temporary purposes provided for in the deed of cession and the legislative acts connected with it. Nothing remained in the United States, according to the terms of the agree ment, but the public lands. And, if an express stipulation had been inserted in the agreement, granting the municipal right of sovereignty and eminent domain to the United States, such stipulation would have been void and inoperative; because the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain within the limits of a State or elsewhere, except in the cases in which it is expressly granted."

After discussing the manner by which the United States gained title to the public lands, the court proceeds:

"Alabama is therefore entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law, to the same extent that Georgia possessed it before she ceded it to the United States. To maintain any other doctrine is to deny that Alabama has been admitted into the Union on an equal footing with the original States, the Constitution, laws, and compact to the contrary notwithstanding. But her rights of sovereignty and jurisdiction are not governed by the common law of England as it prevailed in the Colonies before the Revolution, but as modified by our own institutions. In the case of Martin et al. v. Waddell (16 Peters, 410), the present chief justice, in delivering the opinion of the court, said: When the Revolution took place, the people of each State became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution.' Then to Alabama belongs the navigable waters and soils under them, subject to the rights surrendered by the Constitution to the United States; and no compact that might be made between her and the United States could diminish or enlarge these rights."

RIGHT OF EMINENT DOMAIN

After pointing out that the jurisdiction of the United States over navigable waters was confined to the regulation of commerce with foreign nations and among the several States, the court proceeds:

"This right of eminent domain over the shores and the soils under the navigable waters, for all municipal purposes, belongs exclusively to the States within their respective territorial jurisdiction, and they, and they only, have