California Oregon Power Co. v. Beaver Portland Cement Co

In California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935), Mr. Justice Sutherland explained that, through this language, Congress "effected a severance of all waters upon the public domain, not theretofore appropriated, from the land itself." Id., at 158. The nonnavigable waters thereby severed were "reserved for the use of the public under the laws of the states and territories." Id., at 162. Congress' purpose was not to federalize the prior-appropriation doctrine already evolving under local law. Quite the opposite: "What we hold is that following the act of 1877, if not before, all non-navigable waters then a part of the public domain became public juris, subject to the plenary control of the designated states, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain. For since `Congress cannot enforce either rule upon any state,' Kansas v. Colorado, 206 U.S. 46, 94, the full power of choice must remain with the state. The Desert Land Act does not bind or purport to bind the states to any policy. It simply recognizes and gives sanction, in so far as the United States and its future grantees are concerned, to the state and local doctrine of appropriation, and seeks to remove what otherwise might be an impediment to its full and successful operation. See Wyoming v. Colorado, 259 U.S. 419, 465." (Id., at 163-164.)