to have proper regard for their rights, at least their equities, in fixing the terms of the proposed statute.

Mr. DIFENDERFER. In a nutshell, then, your contention is that this committee has no right to enact any law?

Mr. BROWN. On that theory I think this committee has no right to enact any law.

Mr. DIFENDERFER. Has Congress, then, any right to pass any law? Mr. BROWN. I think Congress has a right to pass a law within

certain limits.

Mr. DIFENDERFER. That is what the committee would like to hear. Mr. LEGARE. You may not want to answer my question at this time, but just keep it in mind. Having these vested rights, if Congress should pass a law fixing rates would it not be retroactive?

Mr. BROWN. I was not going to go into the matter of rates until later, but I think it would not properly be called "retroactive." If I understand the essence of your question I would say, in regard to rates, that it would not only be unwise for Congress to attempt to fix rates, but I think that such an attempt would be invalid and ineffectual. That power so far as it exists belongs to the State of New York.

Mr. LEGARE. That answers my question.

Mr. BROWN. I have certain things that I want to follow along and draw conclusions from.

Mr. LEVY. Is it your contention that the riparian owners, by the purchase of the adjacent land, acquired the right to divert any water that they might desire to divert, with the consideration that the interests of navigation should not be interfered with, no matter what became of the Falls?

Mr. BROWN. As purely a question of legal right, yes, sir; no matter what became of the Falls. Now, I am going to put into the record the summary of a 90-page argument on this point.

The CHAIRMAN. The reporter will incorporate it in the record. Mr. BROWN. I want this printed as my summary of the law at this point:

LAW AS TO RIPARIAN RIGHTS-LIMITATIONS OF FEDERAL CONTROL-LIMITATIONS OF STATE CONTROL-PROPOSITIONS STATED AND LEADING CASES CITED.

Rules of law as to Federal control.

1. That the authority for Federal control of fresh navigable streams and waters in the United States, which at the same time defines and limits such control, arises solely from that power which has been expressly reserved to the United States by the Federal Constitution-the power to regulate commerce between the several States and foreign nations.

2. That this power of control was expressly reserved to the Federal Government by the States originally adopting the Federal Constitution and by all States since admitted under that Constitution; and, subject to this specific power so reserved in the Federal Government, there has passed over to those States, upon their entry into the Union, all powers and interest, whether of ownership or of control, now or formerly belonging to the Federal Government, in the beds and waters of such navigable streams, and the Federal Government has since retained, and still retains, either as against any claim by a State or by an individual riparian, or both, only the specific paramount right of control for the specific and limited purpose of commerce-that is, of navigation. Moreover, this Federal power of control is purely a sovereign power of control for a spécified public use, and does not include, and can not be extended to, any element of a proprietary right or interest.

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3. That, subject to this purely sovereign right of control of navigation, all right, title, and interest, sovereign and proprietary, belongs to the States or to individual riparian owners, or both; and it is not within the Federal authority or power, either judicial or legislative, to fix or determine, as between a State and an individual owner, the limitations between State and individual ownership or control of water powers. The rights and obligations, as between a State and an individual owner, are fixed by the law of property as established by the decisions of the State supreme court in the State in question. This law of property, as so fixed in any State, is, as to streams in that State, binding upon the Federal Government and its Supreme Court.

Rules of law as io State control and as to rested property rights of riparian

owners.

1. The title and power of control by the State over the beds and waters of navigable streams are not in any degree proprietary in nature or extent. They are limited to a holding in trust as a sovereign for the specific purpose of protecting a public use, to wit, navigation and certain allied public uses.

2. The title and the power of the State are subject only to the Federal paramount power of control as established and defined as above demonstrated. They are limited also by the private proprietary right of the riparian as fixed by the law of the State.

3. The private riparian owner owns and retains all and the only proprietary title, right, and interest, either to the beds and waters of such streams or to the usufruct thereof. He has the proprietary right to the beneficial use of the flow of the waters in connection with the natural head and fall upon or opposite his riparian land and to the whole thereof; he has a proprietary right to utilize the bed and waters for the development of power and for the operation of water-power plants. This right belongs to him jure naturæ-that is, because it is a natural resource and right belonging to and appurtenant to his riparian land and a part thereof. And this private proprietary right is subject only to the sovereign right of control by the Federal and State Governments for the public use of navigation.

4. As between the State and the riparian owner, the sovereign power of control of the former ends where the proprietary right of the latter begins; and the private right exists up to the point beyond which it would be inconsistent with the specific and limited public right. This private proprietary right of the riparian is the same, whether the title to the bed of the stream, either below high water or below low-water mark, is said to be held by the State or by the riparian. The attempted distinction between the riparian rights, on the basis of the riparian's having a mere easement instead of a title, is, so far as these questions are concerned, purely speculative.

The above rules of law are established by the following leading cases: Water Power Co. v. Water Board (168 U. S., 358-365); Hobart v. Hall (174 Fed. Rep., 433); Hall v. Hobart (108 C. C. A. Rep., 348); United States v. Chandler-Dunbar Co. (209 U. S., 447); People v. Mould (37 App. Div., 35, 39); People ex rel. Niagara Falls Hydraulic P. & M. Co. v. Smith (70 App. Div., 543; affirmed, 175 N. Y., 469); Niagara County I. & W. S. Co. r. College Heights L. Co. (111 App. Div., 770, 772); Sweet v. City of Syracuse (129 N. Y., 335); Smith v. Rochester (92 N. Y., 474); Rumsey r. Rd. Co. (133 N. Y., 79); Brookhaven v Smith (188 N. Y., 74).

See also decision of Wisconsin Supreme Court (Jan. 30, 1912) in State ex rel. Wassau Ry. Co. r. Bancroft (Atty. Gen., 134 N. W. Rep., 330).

Mr. BROWN. The Chandler-Dunbar case (209 U. S.) and the New York case of People v. Smith (70 App. Div.), above cited, expressly hold that the rules of law above stated apply as well to internationalboundary streams as to other streams; and the case of People v. Smith expressly holds the riparian rights on the Niagara River at the Falls to be as above stated. These rules of property rights were relied upon by the owners of the power plants at Niagara Falls when they made their original investments and constructed their works with the capacities which have since been maintained.

Such is a summary of the law upon this subject; and it is so well settled that these rules of law are now recognized not only by the

Federal Supreme Court but by the highest courts of every State in which the common-law principles of riparian rights are recognized. This includes substantially all the States lying in whole or in part east of the Mississippi River. It does not include those far western States which never had any law of riparian rights, but where the law of prior occupation or prior appropriation prevails, such as Colorado. Cases from such States are not authority in either Minnesota or New York. The Federal courts recognize and enforce the law of property rights on these questions according as they find the local law to have been established by the courts of the respective States; and the United States Supreme Court has so expressly held in 168 U. S.. 358, and other cases. So the Federal court would enforce riparian rights at Niagara Falls as such rights have been established by the New York courts. In passing I would say that the same rules of law prevail in Canada, the only difference between the two countries being that here vested property rights are, through the courts, protected under the Constitution against encroachments by the legislature of either the State or the Nation, while in Canada the Parliament can not be so restrained.

The right that Congress has now, gentlemen. I talked about this matter before the National Waterways Commission the other day, and one of the gentlemen said: "That is merely your theory, isn't it, Mr. Brown?" So much the less merely my theory, it is the statement of the law that has been made by the United States Supreme Court, and the courts have had this decision before them for years. I demonstrate this proposition as a rule of law, to wit: That the power that the Federal Government has over navigable streams is for the specific purpose of navigation; it gets that power expressly from the clause in the Constitution of the United States giving Congress the power to regulate commerce. It does not own the waters; it does not own the bed; it has no proprietary interests; it has only a right of control in its sovereign capacity for a limited and specific purpose, to wit, for navigation. It is a power simply to prevent unreasonable interference with navigation. That is the law.

Now, then, every bit of interest in or power over these streams and their beds, except this limited right of the Federal Government (this is not my statement; it is the statement of the United States Supreme Court-168 U. S., 385), has passed to and is retained by either the State or individuals, or both, as the case may be; it all belongs to one or the other; and if you want to find where the right of the State, New York, for instance, and the rights of the riparian owners begin and end the Federal Supreme Court says you shall go to the law of property rights of the State as shown by the State decisions. The Federal Government having reserved only the paramount power to control navigation, everything else hase gone either to the State or to the riparian owners; and in the determination of how that which is left is or shall be divided between the two neither the Federal Government nor the Federal Supreme Court has anything to say. Consequently, we have this situation; that if we want to find out what the riparian rights are in New York we go to the New York decisions. Under the law the Federal Government has no more to do with "scenic beauty" than it has to do with the color of my hair.

Mr. DIFENDERFER. You haven't any.

Mr. BROWN. That's right-neither hair nor scenic beauty. [Laughter.]

Mr. LEVY. Aside from this proposition of navigability, do you think it is affected as a boundary stream?

Mr. BROWN. That is incidental. There is one thing that is certain: If a thing can not affect the navigability of a stream is can not affect the matter of boundary. The matter of boundary is not the question of there being water or there not being water. When the stream as such is the boundary, there international laws fixes the boundary at the thalweg, that is, the deep-water line, but in this case at Niagara Falls it is fixed at a certain line surveyed and described as any line. Suppose the river dried up, is not the boundary there just the same? Mr. FLOOD. Would not the Government have a right of control over it as a matter of public defense?

Mr. BROWN. If so, then only to the extent that might be reasonably necessary for that purpose.

Mr. LEVY. Mr. Chairman, following up my question: If it should dry up it would still be a boundary, but do you think if Canada or the United States had no treaty as to how much power could be diverted and used-suppose that the United States or the State of New York should give to some power company the absolute right to divert the whole stream over there, don't you think it might bring up the discussion of rights?

Mr. BROWN. It probably would-the question of private rights, international rights, and the right of the United States or New York to attempt such a grant.

Mr. DIFENDERFER. How long have you been the attorney for the companies you are representing here to-day?

Mr. BROWN. I will tell you frankly that as a direct attorney for these companies the first work I did was last fall; but that is not the only experience I have had in these questions.

Mr. DIFENDERFER. I would like to ask you why this question was not brought up in 1906?

Mr. BROWN. Let me say this: It was brought up, and you will read in the report of those hearings much mention of this subject; in the mass of other matter, however, this question was too much lost sight of.

Mr. KENDALL. Then, you hold that if your company was deprived of the right to use that power, if there was any power to deprive you of that right, you could hold that power responsible?

Mr. BROWN. Yes, sir; but we would not have to be compensated for it until we demanded compensation. We are not here demanding compensation, nor demanding at this time recognition of our full rights of diversion. We ask that, up to the treaty amounts, our rights be respected. Now, that being the law of New York, we find in the decision of the appellate division of the New York courts not only these propositions of law supported generally, but these propositions laid down as to this very river at this very point; which decisions have been affirmed by the New York court of appeals. The principles that I have stated are reaffirmed, confirmed; that these companies not vaguely some companies-but these companies by name acquired their rights to make these diversions by virtue of their riparian ownership, and that those are vested property rights. The question of their naked fee in the bed only going to high-water

mark does not affect that conclusion, because the State of New York holds, not a proprietary interest in the fee, but only an interest in trust as a sovereign to protect navigation; and subject to that, their rights of uses of the waters in the river are just the same as if their fee extended to the middle; and therefore these owners have these rights subject only to the right of the State of New York and the Federal Government to control navigation; and they hold those rights as vested property rights.

Why, gentlemen, some time ago they had assessed one company in New York on the basis that it got its rights to the beneficial use of the water for power by virtue of its riparian rights and that company said, "No; we don't get this by reason of our riparian rights, but by virtue of a special privilege or franchise from the State, which is not assessable"; but the highest courts of New York (70 App. Div., 543; 175 N. Y., 469) said: "No; you get it solely as a property right. It is part of your riparian rights." Now, gentlemen, the United States Supreme Court, in the case of another international boundary stream, has decided these questions the same way. (Note the Chandler-Dunbar case, on the Sault Ste. Marie, 209 U. S., 447.) These cases are all cited in my summary of the law on this point. Gentlemen, I am not here to pound you upon the law, but simply to tell you what rights these companies relied upon. I say they knew what their riparian rights were. Also, out of abundance of precaution (not that they doubted their rights, but as investors they had to borrow money and doubly satisfy those who financed their enterprise), they got patents and grants from the State of New York, by conveyance and by legislative grants, which not only confirmed them in their riparian rights, which they claimed, but also gave to them such rights in the State Park lands next the Falls as were necessary to allow them to make a diversion by tunnels extending below the Falls. Relying then, gentlemen, upon these riparian rights and upon the rights acquired from the State of New York, these people first had a series of investigations made before they started work. Mr. GARNER. It is 12 o'clock, and I assume there are a number of gentlemen who want to get away. It is important to be on the floor of the House until we get started. We can get away by 1.30.

The CHAIRMAN. We will let Mr. Brown finish.

Mr. LEGARE. Your companies applied to the Secretary of War for a permit subsequent to the enactment of the Burton law?

Mr. BROWN. I do not know whether they did or not, butMr. LEGARE. Well, you are operating now under a permit? Mr. BROWN. Under this Burton law. However, the fact that we complied with that law does not change our legal rights. Mr. LEGARE. And those permits are revocable.

Mr. GARNER. I understand your argument now is based upon the conditions existing before the Burton law was passed?

Mr. BROWN. Yes, sir. The position in which these parties were before the Burton law was passed; and I want to show you that these legal rights, or at least the equities of these companies based upon their legal rights, were intended to be regarded and protected by the treaty of 1909.

But are you going to refuse to consider these equities any less than did the Burton Act? Or any less than did the treaty? Will you refuse, at least, to take into consideration the equities of the in