Mr. BANNISTER. Well, every other year I deliver lectures

Mr. SWING (interposing). I just wanted to say to the committee-most of them know it already that Mr. L. Ward Bannister is one of the leading authorities of the United States, if not the leading authority, on water rights in the arid States. And I am very glad to have his criticism on my bill.

MI BANNISTER. I am not that, for the honor belongs to Wiel, of California. But I have given a good deal of attention to the question of the relative powers of the Federal Government and the States with regard to water rights, and also to the question of the interstate rights in interstate streams; and I know the theory of these seven States to which I refer.

Briefly speaking, it is this: That the common law doctrine of riparian rights never was in force at any time within the area that now comprises these seven States. That even prior to statehood of those States, the Federal Government, although owning riparian lands, never, for instance, owned riparian water rights connected with those lands, as is true, of course, in the Eastern States, where riparian lands carry with them riparian water rights. Mr. LITTLE. What is that? Is it the old Spanish law?

Mr. BANNISTER. I was not basing that conception on the Spanish law, but on the decisions of the States themselves. For instance, the State of Arizona, in the case of Clough v. Wing, held that in that State the appropriations system was the system that prevailed; and later on, on the case of Borquillas Cattle Co. v. Curtis, Mr. Justice Holmes, speaking for the United States Supreme Court, pointed out that, under the provisions of Howard's Code, enacted in territorial days, there were no such things as riparian rights in Arizona. Mr. LITTLE. Why do they so hold?

Mr. BANNISTER. For the reason that riparian rights are not physically adapted to the development of those States. In other words, for those States to develop, where the rainfall is so inadequate, there must be chance to divert the waters from the streams to lands which are nonriparian; to lands which lie even out of the watershed; and the water can not be confined, if the States are to be developed, to ownerships of lands which are in contact with the

streams.

Mr. LITTLE. Is it not founded on the basic thought, however, that the common law had not come out there?

Mr. BANNISTER. Yes; it is on the basic thought that the common law never applied to that subject in those States. And that has been held to be the law in those States, notwithstanding the fact that in those States there have been statutes purporting expressly to put the general common law into force on most legal matters in those States. The courts have interpreted such general statutes. as not compelling the States to adopt any specific doctrine of the common law that was against the general welfare of those States. Mr. LEATHERWOOD. Mr. Bannister, so far as the State of Utah is concerned, that only applies, however, in so far as the State has not seen fit to deal with the subject: is that not true? That is, the doctrine of the common law applies only in so far as the State has not seen fit to speak upon the question?

Mr. BANNISTER. I do not recall the decision which put the appropriation system in force in Utah. I take it that you are from that State?

Mr. LEATHERWOOD. Yes. I do not disagree with you as to the general question of law.

Mr. BANNISTER. No. But I have in mind, for instance, in Arizona, the case of Clough v. Wing; and in my own State, the case of Yunker v. Nichols, followed later by the Left Hand Ditch Co.

case.

I have in mind in Nevada the early case of Jones v. Adams. And in all of those cases the appropriation system was supported on the ground that, climatically, the riparian system was not adapted to those States and that the appropriation system was.

Mr. RAKER. Do not riparian rights exist in the State of Nevada? Mr. BANNISTER. I believe not.

Mr. RAKER. And in California?

Mr. BANNISTER. In California there is a hybrid system, both of appropriation and of riparian rights, coming about in a most curi

ous way.

Mr. RAKER. When and where has it been held that the Federal Government is not a riparian owner in any of those States by a decision of the Federal courts?

Mr. BANNISTER. Well, you say by the Federal courts?

Mr. RAKER. Yes; I wanted to know that.

Mr. BANNISTER. Surely; and I agree with your assumption that the ultimate question is for decision, not by the State courts, but by the United States courts.

Now, the only Federal case, or the Federal case which has come to the point most squarely, is that of Kansas v. Colorado, in which the opinion was rendered by Mr. Justice Brewer. That was, as you probably know, a contest between Kansas and Colorado over water rights.

Mr. RAKER. Yes; I have read that decision a number of times. Mr. BANNISTER. Well, it was a contest of those States over the relative rights to use the Arkansas River; and in that case the United States intervened, upon the ground that it had vast tracts of land in both States to be reclaimed; and that it wanted the waters of those streams with which to reclaim those lands; and the court, through Mr. Justice Brewer, dismissed the petition of intervention on the part of the Government, upon the ground that there was nothing there for the United States to litigate about; that it was for each State to say what kind of a system of water rights it should have within its borders; if it chose to do so it could use the riparian system, as was done by most of the States of the Union, where the rainfall was plentiful; but if, on the other hand, it wanted to use the other system, the appropriation system, it could do so.

And the strange thing in that case was that, although the Federal Government itself was supporting the principle of appropriation, as was the State of Colorado, even then the court dismissed the petition, saying that the appropriation system which was to prevail was not to be an appropriation system prescribed by the Federal Government, but one prescribed by the State, which, as between the two, was the proper source of authority in promulgating a system of water law.

Mr. RAKER. Then your contention is that there has never been any decision by the Supreme Court of the United States where it has been determined that in any of these seven States the Federal Government has waived, or has lost, or never did have, a riparian right; is that correct?

Mr. BANNISTER. I will say this, that there is no direct authority; I am answering your question directly. There is indirect authority; and the indirect authority preponderates a little in favor of the view that, in those particular States, if the State holds that riparian rights never existed, then they never did exist.

But I want to be perfectly fair with you on that question. Although Justice Brewer says that each State may determine its own system of water rights, there is one thing which he did not do, and which I think might have been done, in order to reach a sound conclusion, and that is this: He discussed the relative powers of the State and the Federal Government from the standpoint of their political power. He did not take into consideration the very question which you raise, of possible property rights in the form of riparian rights in the Federal Government prior to statehood and therefore possibly after statehood.

Now, if the Federal Government did have a property right with respect to the water, namely, the old common law riparian right, then I am inclined to think that the Federal Government would be the one that would have the right to dispose of water rights, and against the will of the States, because the Federal Constitution plainly says that Congress may dispose of all of the property of the United States.

But so far as we have any light from Federal decisions, they incline to the view that, if those States say that riparian rights never existed there, since statehood or before, then they never did exist. And I think that is the sound view.

Mr. RAKER. And what case did you say has decided that?

Mr. BANNISTER. Indirectly decided that-Kansas v. Colorado, where the court says that the question of what system of water rights shall prevail within a State is for the State to determine. And, then, Mr. Justice Holmes, in the Borquillas Cattle Co. case of which I spoke, took it for granted that it was within the power of the Territory of Arizona to say, if it wished-and as it had done-that riparian rights did not eixst; and if that be true of a Territory, it would be all the more true of a State, whose political power is greater than that of a Territory.

I base the argument that riparian rights do not exist in those States, and never have existed, solely upon the ground of the climatic and economic necessities of those regions.

Mr. RAKER. Now, if you are going to take that attitude-and I wish you would put in the volume and page of the reports where those two decisions are reported-where do you land if the Federal Government still retains its right and the Colorado River is navigable?

Mr. BANNISTER. The volume where the decision of Kansas v. Colorado is reported is 206 United States reports.

Mr. RAKER. I have that; but I mean those two State decisions.

Mr. BANNISTER. Oh, State decisions, I can supply those later. (Data referred to appears at the conclusion of Mr. Bannister's testimony.)

Mr. RAKER. Now, what would be your position as to those States taking all of this water and diverting it, if the Federal Government still maintains the Colorado River as a navigable stream? It never has yielded its right-as to the right to have the water flow down that stream.

Mr. BANNISTER. If the Colorado River is a navigable stream, and for the purpose of your question I assume that it is.

Mr. RAKER. Yes.

Mr. BANNISTER. Although I think there is a fair question as to the fact of navigability I should say that the Federal Government, if it wishes to, may exercise all the power it wants to in order to protect navigation.

Mr. RAKER. Now, what would that be? Just tell the committee. Mr. BANNISTER. That would be power, for instance, to establish locks on the river for the movement of vessels at the lower end of the river; it would also be the power, I should say, to prevent waters being withdrawn from the river by any of the States for irrigation, if the effect would be to injure navigation.

Mr. RAKER. That, then, would permit the Government, if it enforced its rights to maintain the navigability of the Colorado River, to compel the parties above-no matter how they had maintained their rights, unless they had acquired them by limitation against the Federal Government, which we will not discuss now-to let the water run down the stream, would it not?

Mr. BANNISTER. I did not get your question. That would include the power to do what?

Mr. RAKER. To compel the users of the water in the upper reaches of the river to use it so that it would keep the river in a navigable condition.

Mr. BANNISTER. Surely, if it is wanted for navigation, so too, it could compel the lower States to abstain from taking out the water. Mr. ALLGOOD. When water is used for irrigation, is it not the fact that about 90 per cent of it comes back, gradually, finally into the stream?

Mr. BANNISTER. Well, I am not an irrigation engineer; and on that subject I only know what they tell me. They say about 75 per

cent.

Mr. ALLGOOD. I think that point was brought out in the testimony here.

The CHAIRMAN. Yes; that is true.

Mr. RAKER. So as to get it clearly before the committee about these rights, let me ask this: Conceding for the sake of argument— and the testimony here has been to that effect-that the Colorado River is navigable; and that the Federal Government has not waived its right, it would have the right to compel the users of the water in all the upper reaches of the river to allow it to flow in its natural channel, so that its navigability might be maintained, to the end that the Government would still have control relative to navigation.

Mr. BANNISTER. It would, if the purpose of the Government in requiring the release is to promote navigation. But if the purpose of the Government

Mr. RAKER (interposing). Well, let us leave off the purpose. They have been talking about these parties having the right to take all the water out of the river, and to put royalties on the use of it. Let us see where the relative rights stand, and see whether we are on an equal plane and compelled to deal equally as between the Government and the States. In other words, I want to know whether all the rights are on one side, or whether the Federal Government does not maintain a superior right to the water for navigation, if it desires to exercise it?

The CHAIRMAN. If the Colorado River were navigable from a commercial point of view, you would probably be correct. But has there ever been any claim that it is navigable?

Mr. RAKER. Well, that is the law; it is navigable under the law and in fact.

Mr. ALLGOOD. And then again, if 90 per cent of the water comes back into the river, it looks to me as if that fact would answer that question.

The CHAIRMAN. Is the Colorado River not navigable for commercial purposes?

Mr. RAKER. Well, that is a question of fact. But assuming it to be navigable, as has been testified here, all I am seeking to do is to obtain information for our own benefit, as to whether or not the Federal Government does not maintain and own now a superior right to all of it. And then let us see what should be the proper disposition of this water. The first thing is to get the fundamental rights in our minds before we start in. In other words, I would not like to proceed if it appears that the Federal Government is just simply helpless and has not any rights at all; and I am asking this gentleman, who is an expert, and who has given this matter much study, as to the right of the Federal Government to maintain the navigability of its streams.

Mr. BANNISTER. Well, if I may respectfully say it, I do not think you can eliminate the purpose of a Congressional act and yet define the relative rights of the State and Federal Governments-purpose itself is an element of importance.

Mr. RAKER. Well, before we start in to do anything, let us see if the Federal Government has that right.

Mr. BANNISTER. Well, I have already stated that, if this stream is navigable and that is your present assumption-then the Federal Government may do anything on that stream necessary to promote navigability; in other words, it may require the release of all waters from the upper States and the lower States both.

Mr. ALLGOOD. Well, is the stream really navigable?

Mr. BANNISTER. Well, that is a question of fact, as to which I am not of my own knowledge prepared to speak.

The CHAIRMAN. It was testified by Mr. Mulholland the other day that it was not navigable; that 50 years ago they had a few boats running up and down the river, but not for commercial navigation. Mr. ALLGOOD. Not for commercial purposes.

The CHAIRMAN. No.