4. Amount of water which the appropriator is entitled to use; or, the extent of his appropriation.

The amount of water which an appropriator is entitled to use— commonly designated as the extent of his appropriation—is a question of fact to be determined by a jury. The right of the prior appropriator in this respect is limited to the amount or extent of his actual appropriation, as against subsequent appropriators and claimants; and he can not, after their subsequent rights have attached, by changing the place or nature of his use, or by enlarging his works, or otherwise, extend his claim or increase the amount of water diverted or used, to the prejudice of such subsequent parties." The extent of the appropriation and amount of water thereby taken may be determined by the special purpose for which the appropriation was made; and in such a case the appropriator is entitled to so much water only as is necessary for that purpose; a change of the purpose which would increase the amount of water diverted would not be permitted as against subsequent claimants." Thus, in the case of Nevada W. Co. v. Powell, cited below, it was held that where the plaintiff had appropriated a portion of the water of a stream, and had made a dam and ditch amply sufficient for his purpose, and had thereby acquired the right to use such portion only of the water, and in such manner only, he can not encroach upon the rights of subsequent appropriators by extending his use beyond the first appropriation. By the plaintiff's erections and use for several years, other persons had a right to suppose that he had thereby defined and determined his own rights as to amount of water, and to act accordingly by appropriating the surplus to their own uses. On the other hand, if a prior appropriation has been made of a certain amount or quantity of the water, independently of any particular use or purpose, the appropriator may afterwards, as against subsequent claimants, change either the place or the nature of his use, provided such change does not increase the amount of water diverted and used.13 J. N. P.

(TO BE CONTINUED.)

11 Nevada W. Co. v. Powell, 34 Cal. 109; Ortman v. Dixon, 13 Id. 33; Higgins v. Barker, 42 Id. 233; Davis v. Gale, 32 Id. 26; Lobdell v. Simpson, 2 Nev. 274; Barnes v. Sabron, 10 Id. 217; Atchison v. Peterson, 20 Wall. 514.

12 Nevada W. Co. v. Powell, 34 Cal. 109; McKinney v. Smith, 21 Id. 374; Barnes v. Sabron, 10 Nev. 217.

13 Davis v. Gale, 32 Cal. 26; Kidd v. Laird, 15 Id. 161; Woolman v. Garringer, 1 Mont. 535.

CIRCUIT COURT, DISTRICT OF CALIFORNIA.

CARDWELL V. AMERICAN RIVER BRIDGE COMPANY.

Decided March 3, 1884.

INTERNAL NAVIGABLE WATERS-POWER OF CONGRESS OVER.-Congress has power, under its authority to regulate commerce and establish post-roads, to control for those purposes the internal navigable waters of the various states. As soon as congress legislates in regard to any such navigable waters, its power becomes exclusive, and the states can not afterward authorize any material obstruction to their navigation; but till congress acts, the legislature of any state has the power to authorize the obstruction of any navigable waters within its borders, by the erection of bridges, dams, or other structures, for the convenience and advantage of commercial intercourse.

THE ACT OF CONGRESS ADMITTING CALIFORNIA INTO THE UNION, which provides that all the navigable waters within the state shall be common highways, and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, impost, or duty therefor, it would seem, should be regarded as a valid regulation by congress of the navigable waters of California, which would withdraw them from the operation of state legislation authorizing the construction of a bridge over a navigable stream, such as the American river, that would utterly destroy its navigability.

THE CASE OF ESCANABA Co. v. CHICAGO, 107 U. S. 679, COMMENTED ON, and the points supposed to distinguish it from that case pointed out.

DEMURRER to bill. The bill alleges that the American river is navigable in fact for steamboats and barges for thirty miles from its mouth to Folsom; that complainant is the owner of several thousand acres of land bordering for a long distance on the river below Folsom; that he raises on said lands several thousand tons of grain yearly; that he is the owner of a steamboat and other vessels, by which he could and would ship his grain down the river but for the obstruction interposed by the bridge in question; that there are large deposits of cobble-stones in the bed and on the borders of the river on his land, which have a large market value in San Francisco for paving and other purposes, which, but for the said obstructions, he could ship by his vessels and sell at a large profit, whereas the expense of sending them by rail and other means open to him is such that he is unable to dispose of them at all, or so as to make it profitable; that in pursuance of the authority of an act of the legislature of California, the defendant has erected a low bridge without any draw in it, or other means of passing the bridge, by means of which the navigation of the river by complainant's steam and other boats is wholly obstructed, to his damage many thousand dollars every year. He asks a decree, either compelling defendant to remove the bridge, or else place a suitable draw in it, so as to permit the passage of steamers and other vessels capable of navigating the river.

Scrivener & McKune, for the complainant.

H. O. & W. H. Beatty and J. B. Haggin, for the defendant.

By the Court, SAWYER, Circuit Judge. This case is clearly within the rule as laid down in the Wallamet Bridge Case, 7 Saw. 127. If that case can be sustained in the broad terms of the rule stated, then the demurrer in this case should be overruled. Since that decision was rendered the supreme court of the United States has decided the case of Escanaba Co. v. Chicago, 107 U. S. 679, which defendant insists overrules the principle announced in the Wallamet Bridge Case; that under the clause of the act admitting Oregon into the Union, the state has no

power to authorize the construction of bridges over the navigable waters of the state which shall materially obstruct their navigation. It must be admitted, I think, that there is language in the opinion that favors that view; and I am by no means certain that the court did not intend to go as far as its broadest language indicates. It is sought to distinguish this case from the Chicago Bridge Case. If it can be distinguished, it must be on the following grounds: In the Blackbird Creek Case, arising in Delaware, the Schuylkill Bridge Case, in Pennsylvania, and all others since decided, following the decisions in those cases, it was held that congress, under its authority to regulate commerce and establish post-roads, had power to control, for those purposes, the internal navigable waters of the various states; that as soon as congress legislates in regard to any such navigable waters, its power becomes exclusive, and the states can not afterward authorize any material obstruction to their navigation; but till congress acts, the legislature of any state has the power to authorize the obstruction of any navigable waters within its borders, by the erection of bridges, dams, or other structures, for the convenience and advantage of commercial intercourse. It was held, with respect to the navigable waters of Delaware and Pennsylvania, that congress had never acted, and, consequently, the legislation of these states authorizing the obstructions complained of was valid.

The question, therefore, is, has congress acted with reference to the navigable waters of California, by legislating upon the subject, in such sense that its control has superseded the power of the state legislature and become exclusive? If so, then the case is distinguishable from any of the cases, other than the Wheeling Bridge Case, before decided by the supreme court. If congress has so acted, that legislation is found in the act admitting California into the Union, which act provides," that all the navigable waters within the state shall be common highways, and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, impost, or duty therefor:" 9 Stat. 452, 453. How can the American river be a "common highway," or how can it be "free" to "the citizens of the United States," or "the inhabitants of the state," with a low bridge across it, without a draw, and so constructed as to preclude all navigation by steamers or vessels? To be a common highway, or to be free to all to use as such, involves a capacity to be practically used as a highway, and such capacity is wanting where there is an impassable barrier or obstruction. This provision is a law of congress, and it is valid, not as a compact between the United States and the state of California, but as a law of congress, passed by virtue of the constitutional power of congress to regulate commerce among the states and with foreign nations, and to establish post-roads: Pollard's Lessee v. Hagan, 3 How. 224, 225, 229, 230; Wheeling Bridge Case, 13 Id. 566; Mining Debris Case, 1 West Coast Rep. 212. What does this provision of the statute mean? Can there be any reason to suppose that congress intended anything else than to make or continue the navigable waters of the state, by virtue of its power to regulate commerce, practical free highways, and to take away the power of the state to destroy or wholly obstruct their navigability? Had nothing been said upon the subject in the act of admission, but subsequently, after the admission of California into the Union " on an equal footing with the original states in all respects whatever," congress had passed a separate, independent act, with no other provision in it, providing "that all the navigable waters within the state

of California shall be common highways, and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, impost, or duty therefor," would anybody suppose that congress, by the passage of such an act, under the circumstances indicated, could have any other purpose than to take control of the navigable waters of the state for the purpose of preventing any interference with, or obstruction to, their navigability, or "so far as might be necessary to insure their free navigation"? Or would it be seriously doubted, that congress had acted upon the subject-matter within the meaning of the terms of the decisions in the Blackbird Creek and Schuylkill Bridge cases mentioned? If such would be the construction in an independent act passed subsequently to the admission of the state, it must be the construction of the same language as found in the act of admission. If such is not the purpose of this provision, it would be difficult, I think, to determine what the purpose is. Following the direct decision upon this point in the Wheeling Bridge Case, 13 How. 565, I had no difficulty in concurring with the district judge in the ruling that a similar provision in the act admitting Oregon into the Union constituted legislative action by congress upon the subject-matter, of such a character as to withdraw it from the jurisdiction of state legislation.

In the Chicago Bridge Case, supra, the court still recognizes the power of the national government to control the navigable waters of the several states. It says: "The power vested in the general government to regulate interstate and foreign commerce involves the control of the waters of the United States, which are navigable in fact, so far as it may be necessary to insure free navigation, where by themselves, or their connection with other waters, they form a continuous channel for commerce among the states or with foreign countries:" 107 U. S. 682. The question, then, is, whether the provision quoted from the act of admission is legislation by which congress takes control of the navigable waters of the state, so far as it may be necessary to insure their free navigation;" and whether there can be a "common highway," or "free navigation," where the passage of steamers or other vessels is absolutely obstructed by impassable barriers thrown across the channels of waters otherwise navigable, in fact. In the case of the state of Illinois, neither the act authorizing the inhabitants to form a state government, 3 Stat. 428, nor the resolution admitting the state into the Union, Id. 526, contains the provision, or any provision of a character similar to that found in the acts admitting California and Oregon into the Union. Both the act and the resolution relating to Illinois are silent upon the subject, and I am not aware that there is any subsequent legislation on the subject affecting the status of Illinois. In the Chicago Bridge Case, the supreme court seems to regard the provision of the ordinance of 1787 as inoperative after the admission of Illinois as a state. Says the court: "Whatever limitation upon its powers as a government, whilst in a territorial condition, whether from the ordinance of 1787, or the legislation of congress, it ceased to have any operative force, except as voluntarily adopted by her after she became a state of the Union. On her admission she became entitled to and possessed all the rights and dominion and sovereignty which belonged to the original states. She was admitted, and could be admitted, only on the same footing with them. The language of the resolution admitting her is on an equal footing with the original states in all respects whatever:' 3 Stat. 536. Equality of constitutional right and

power is a condition of all the states of the Union, old and new. Illinois, therefore, as was well observed by counsel, could afterwards exercise the same power over rivers within her limits that Delaware exercised over Blackbird creek, and Pennsylvania over the Schuylkill river:" 107 U. S. 688, 689.

There being no legislation by congress, then, assuming the control of the navigable waters of Illinois, there was nothing more to prevent legislation by the state in regard to the navigable waters of Illinois than there was to prevent legislation by the states of Delaware and Pennsylvania. But I do not understand it to be held, or intimated, that congress can not, by legislation in the interest of interstate commerce, take control of any one, or all, of the navigable waters, either of Illinois, Delaware, or Pennsylvania. Only it has not yet done so. I suppose congress Light take control of any one navigable river by name, as the Sacrament, for the purpose of facilitating interstate commerce, or it might take control, generally, of all the navigable waters of any particular state, without reference to the waters of other states, and there might well be special reasons, making it desirable with reference to some particular waters, or some particular states, which are not applicable to other waters, or other states. I do not understand that special legislation as to particular rivers or particular states, not applicable to others, would affect the "constitutional right or power," or the equality of the states in any particular. All of the states are alike equally subject, at any and all times, when congress sees fit to act, to the power of congress to " regulate commerce among the states' and with foreign nations, and the power to establish post-roads" within their several borders and over their several navigable waters. But the regulation of commerce on the waters of, and establishment of post-roads in, some states, before it is done on the waters of or in other states, does not affect their constitutional status of equality. Congress may take its own time and occasion to regulate the navigable waters of a state without affecting its constitutional condition of equality. I suppose congress might now, by an act duly passed, apply the provision in the acts of admission of Oregon and California to Illinois, Delaware, and Pennsylvania-to any one or all of them; and if it should do so, it would seem that there ought not to be any doubt that the object would be to take exclusive control for the benefit of commerce, and to suspend the power of regulation, or at least of obstruction and destruction, by the states. But until some legislation of the kind is had, those states concerning whose waters congress has not legislated, under the decisions referred to, may themselves legislate upon the subject. If the provision in the California act of admission is legislation taking control of the navigable waters of the state for the benefit of commerce, then congress has legislated in reference to the navigable waters of California, while it has not done so with reference to the navigable waters of Delaware, Pennsylvania, and Illinois; and, in this respect, California and Oregon stand upon a footing entirely different from that of those states, and the decisions as to them are inapplicable. The foregoing observations indicate the distinction, if any sound distinction there be, and it seems to me that there is, between this case, the Wallamet Iron Bridge Case and the Wheeling Bridge Case, and those other cases cited, already decided by the supreme court. If the distinction is not sound, then it appears to me that the Wheeling Bridge Case must also be regarded as