it is of sufficient capacity to be capable of being used The same authority, continuing, says:— "In order to be navigable water must be navigable in its natural state without artificial aid.” Such a stream as the South Branch of the Potomac, although it might be made navigable by artificial aid, is certainly not a navigable stream as recognized and defined by the laws of our country, as applicable to inter-state trade; and not being a navigable stream in that sense the Federal Government would have no control over it and the Congress of the United States would certainly have no right to authorize the construction of dams across it, or any similar stream in the State. The question of the rights of the individual riparian owners, especially as applying to water power in navigable streams as against the Government of the United States in its control over navigation and the incidental development and uses of a navigable stream in improvements of the same for navigation purposes, was settled by a decision of the United States Supreme Court rendered on the 2nd day of June last, in what was known as the Chandler-Dunbar Water Power case. Under an act of Congress of March 3, 1909, it was declared: "That the ownership in fee simple of the United States existed in all lands and property of every kind and description north of the present St. Mary's Falls Ship Canal. **** It being necessary for the purposes of navigation of said waters and the waters connected therewith." This act of Congress directed the Secretary of War to take proceedings for the acquisition, by condemnation or otherwise, of all said lands as therein set out. It likewise instructed the Secretary of War to revoke, cancel and annul the permits, licenses and authorities given to the Chandler-Dunbar Water Power Company and other companies utilizing, for power purposes, the waters of the St. Mary's River, the power companies referred to having placed dams in the river aforementioned under permits given by the Secretary of War, which permits were revokable on their face at the discretion of the Secretary of War. In pursuance of the act of Congress referred to condemnation proceedings were instituted and the Chandler-Dunbar Company was awarded $652,000.00 damages for its property taken. Of this amount $550,000.00 was the estimated value of the water power which it was obtaining from the St. Mary's River. Large awards were likewise made to other power companies upon sim ilar grounds. The cases were appealed to the United States Supreme Court, both by the Government and the power companies; the Government contending that the power companies were not entitled to compensation for the power which was taken away from them in the stream; that as riparian owners they had no vested right in the water power itself. The power companies, on the other hand, contended that the awards were inadequate. The Supreme Court reasserted the unfettered control of Congress over navigable streams of the country, and declared that, under the broad power given to Congress, it had the right to appropriate all the water in the St. Mary's River for the purpose of making canals around the rapids of the said river for navigation purposes or for the purposes of commerce; and that no resulting damage could be allowed to any riparian owner by reason of thus diverting the water and consequently destroying or eliminating the water power that existed in the stream. The Court in that case said: "Ownership of a private stream wholly upon the lands of an individual is conceivable; but that the running water of a great navigable stream is capable of private ownership is inconceivable.” It also said: "The riparian owners, upon public navigable rivers, have, in addition to the right common to the public, certain rights to the use and enjoyment of the stream which are incident to such ownership of the bank and must be conceded.” **** They have, also, the right of access to deep water and, when not forbidden by public law, may construct, for this purpose, wharves, docks and piers in the shallow water of the shore; but every such structure in the water of a navigable river is subordinate to the right of navigation and subject to the obligation. to suffer the consequences of the improvements of navigation, and must be removed if Congress, in the assertion of its power over navigation, shall determine that their continuance is detrimental to the public interest in the navigation of the river." While this decision, which is the latest one by the highest Court of the land, perhaps goes farther than any other decision of the same Court as to the power and control of the Government of navigable waters for the purpose of commerce and trade, it can not be said that any new principle was laid down or any new doctrine announced, nor did the Court, in that decision, undertake to define what constitutes a navigable stream within the meaning of commerce as exercised or controlled by the Government of the United States. In determining, therefore, whether a stream is navigable. as applying to the bill pending in Congress authorizing a power company to dam a river in the State, we can only go back to the decisions heretofore rendered and to the law as heretofore established and recognized in determining whether a stream is navigable in so far as it applies to the Inter-State Commerce and, therefore, to whether it is subject to the control of Congress or the Federal Government. The definition of what constitutes a navigable stream which I have just quoted from the Cyclopedia of Law and Procedure has been ratified or confirmed more than once by the United States Supreme Court, except, perhaps, with the modification that in order to be navigable it is not necessary that a stream should be deep enough to admit the passage of boats at all portions of the stream. Of course, we do not here undertake to distinguish between waters or streams that are navigable waters of the United States in contradistinction from navigable waters of the State itself. The question of the right of the State to declare by an act of the Legislature a certain stream or streams to be navigable or floatable or to be public highways need not be considered here. We may advert to that later in connection with the rights of the State itself in contradistinction to the rights of the riparian owners. The next question then is: "What are the rights of the State and the individual riparian owner?" Blackstone lays it down as an elementary proposition that nobody, whether sovereign or individual, owns the waters themselves or the running stream. The right, whether it be of sovereign or subject, is simply to the beneficial use, the usufruct, of the waters as they naturally flow. The question then arises; what inherent right or power has the State of West Virginia to control or regulate the streams within the State or to authorize by statute, as it has done, power companies to appropriate them by condemning land and constructing dams across them under the control and regulation of the proper State authorities? Section I of Chapter II of the Acts of 1913 is as follows: "All waters or streams within the State capable of developing electrical or other energy or power shall be The Legislature, by this provision, while undertaking to place under control of the State all waters or streams within it capable of developing electrical or other energy or power at the same time recognized the rights of the riparian owners along the stream. It seems to me that a serious question arises just here, whether or not this provision is too broad. To my mind it is doubtful whether a mere declaration by the Legislature that all streams capable of developing electrical or other energy or power shall be under the control of the State, is sufficient to put all such streams under the State's control. The Supreme Court of West Virginia, in the case of Gaston vs. Mace, 33rd West Virgina, held : "Streams of sufficient capacity to float logs to market are recognized as navigable, even though they have not water enough for that purpose all the year around, if they have enough at seasons recurring regularly and sufficiently long to be of public use." Can the Legislature of West Virginia, by a mere declaration or act, such as the first Section of Chapter II, go further than the Court has declared and appropriate to itself control over small mountain streams that may not be capable of floating logs to market and that are, therefore, in no sense navigable or floatable, and in which the public has no interest or right. I very much doubt it. It seems to me to be a sound theory that this declaration or act of the Legislature would apply only to such larger streams as may be floatable or navigable within the meaning of the decisions of the Supreme Court of our State, and in which the public has an interest, or over which the public, through the Legislature or Courts, would have some control. It is a fact that many of the grants of land made by the State of Virginia to its citizens covered the bed and banks of the streams in the State; but, nevertheless, it was long ago decided by the Supreme Court of the State of Virginia, that: 66 'Although grants of land to individuals may include the bed and banks of the stream or river, yet the public has the right to the use of all such streams or rivers for the purpose of navigation; but the Legislature (representing the sovereign power) may confer on indi viduals by general law or particular grants, rights in This recognition of the rights of the public in derogation of the rights of the property owners where the grant covers the bed and banks of the stream, applies, as I understand it, purely to the question of navigation, and of course, navigation as defined by the Supreme Court of the State of Virginia has beenextended by the decisions of the Supreme Court of our own State to cover the floating of logs in the smaller streams of the State. In support of the theory which I have here advanced that this act of the Legislature can only be extended to cover such streams as are floatable or navigable and would not apply to smaller streams that are not floatable or navigable, I might refer to the fact that the State of California has a provision in its Constitution, Article 4, which is as follows: (Water and Water Rights, Section 1): "The use of all water now appropriated or that may hereafter be appropriated for sale, rental or distribution is hereby declared to be a public use and subject to the regulation and control of the State in the manner to be prescribed by law." The people of California, in framing their Constitution, recognized the fact that water and water rights would become valuable in that State for irrigation and power purposes, and wrote into their Constitution this provision which became a part of the organic law of the State and which was adopted and ratified by the people themselves investing the State with absolute control of all the waters of the State, whether in streams large or small, declaring the use of it, when sold, rented or distributed to be a public use; and acting upon that provision of the Constitution the Legislature of California has passed numerous statutes for the regulation and control of the sale, rental and distribution of the water for irrigation and power purposes. To be more explicit, there are public and private waters. The Supreme Court of the United States, in the case of Harden against Jordan, 140 U. S. Report, says:— "By the common law, all waters are divided into public waters and private waters. In the former the pro |