UNITED STATES v. APPALACHIAN ELECTRIC POWER CO., 107 F.2d 769

CHESNUT, District Judge. The question for decision is whether the Appalachian Electric Power Company, a Virginia corporation (the defendant below and the appellee here) should be enjoined from the construction of a hydro-electric power dam in the New River at Radford, Virginia.

To obtain this injunction the United States filed its complaint on May 6, 1935, in the District Court of the United States for the Western District of Virginia, in which it charged that the erection of the dam would be in violation of sections 9 and 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401, 403, 33 U.S.C.A. §§ 401, 403, and also contrary to the provisions of sections 4(d) "and 23 of the Federal Water Power Act of 1920, 16 U.S.C. §§ 791-823, 16 U.S.C.A. §§ 791-823, which was amended August 26, 1935, 49 Stat. 838, 16 U.S.C.A. § 791a et seq.

Section 9 of the Rivers and Harbors Act provides in part that— . “It shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of War.” And

Section 10 provides in part that— “The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of' the waters of the United States, is hereby prohibited.” Under this statute it was necessary to obtain

an Act of Congress to authorize the construction of a hydro-electric power dam in a navigable water of the United States, but by the Federal Water Power Act of June 10, 1920, 41 Stat. 1077, 16 U.S.C.

Ch. 12, §§ 791-823, 16 U.S.C.A. §§ 791-823, Congress created an administrative commission with authority to issue licenses to construct, operate and maintain “dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation, and for the development, transmission, and utilization of power across, along, from or in any of the navigable waters of the United States”, 16 U.S.C.A. § 797(d), such licenses (section 803) to contain certain specified conditions, some relating to matters affecting navigation and others of an economic and financial nature; and with the further proviso that the Commission in its discretion might waive any of the conditions except the license period of 50 years, if the license was “for a minor part only of a complete project.” Under the original Act of 1920, 16 U.S.C.A. § 792, the Commission was composed of the Secretaries of War, Interior and Agriculture; but by amendment of June 23, 1930, 46 Stat. 797, the personnel of the Commission was changed to five commissioners appointed by the President by and with the advice and consent of the Senate.

Upon procedure provided for in the Act, the Commission approved the construction of the dam at Radford in accordance with the plans and specifications therefor which had been approved by the Chief of Engineers and by the Secretary of War with respect to navigation, and formally tendered to the Appalachian Electric Power Company, a so-called “major” license containing all the conditions enumerated in

section 10 of the Act, 16 U.S.C. § 803, 16 U.S.C.A. § 803. The Company expressed its willingness to accept the license with all proper regulations affecting navigation but requested the Commission to waive other conditions not affecting navigation, particularly those which related to the regulation of rates to be charged for electric power, the setting aside thereout of amortization reserves, and the so-called “recapture clause” giving to the United States the right to take over the project at the expiration of the license period of fifty years upon the basis of original cost less amortization reserves.

Among its objections to these latter conditions the Company mad'e the point that the Commission was without constitutional authority to prescribe conditions other than those affecting navigation. The Commission refused to waive any of the conditions of the major-part license; and thereupon the Company, having acquired'all riparian and overflowage rights and specific and full authority from the State of Virginia, proceeded toward the erection of the dam without obtaining a license from the Commission. The injunction suit followed.

In its complaint the Government took the position that the New River throughout its whole course constituted navigable waters of the United States, and therefore the dam could not be constructed without permission from Congress or a license from the Commission; and further, that the construction and operation of the dam would necessarily be an obstruction to the navigable capacity of waters of the United States; and in any event was prohibited by the Federal Water Power Act unless licensed by the Commission. The answer of the defendant controverted all three of these propositions.

Proceedings before this suit: The proceedings before the Commission ran over a period of several years.

Section 23 of the Federal Water Power Act of 1920, 16 U.S. C.A. § 817, provided that persons intending to construct a dam in a stream “other than those defined in this

chapter as navigable waters, and over which Congress has jurisdiction under its authority to regulate commerce between foreign nations and among the several States, may in their discretion file declaration of such intention with the commission”, and if after investigation the Commission should find that the interests of interstate or foreign commerce would not be affected, permission was granted for the construction; otherwise not without a license granted by the Commission.

The original project for the Radford Dam was initiated by a predecessor of the Appalachian Electric Power Company, the New River Development Company, which filed its declaration of intention with the Commission on June 25, 1925, after first obtaining an opinion from Engineers of the War Department that the river was not navigable, and therefore in its view not subject to the jurisdiction of the Commission.

The declaration stated among other things that “the proposed project will be so constructed and operated so as not to impair the navigable capacity of the stream below, nor to affect the interests of interstate of foreign commerce”. Thereupon the Commission requested a report on the declaration from the Chief of Engineers of the War Department, Gen. Harry Taylor.

His report of August 20, 1925 was to the effect that no sufficient reason was seen why the Commission should not exercise jurisdiction over the proposed project because while there was no present navigation on the river there had been some on parts of the river in the past and the Government had done work on certain parts of the river to improve navigability; and the water-flow from the dam if not properly regulated could have an adverse effect on navigation during low water stages in the Kanawha River; but that such possible adverse effect was not such as to warrant refusal to permit the construction of the dam if control was maintained by the United States.

On October 24, 1925 the declarant wrote to the Commission requesting re-consideration by Gen. Taylor of his report and submitting additional data relating to New River, which he said had not been considered in his original report.

Thereafter General Taylor re-considered the matter and rendered a second report to the Commission on December 29, 1925, in which he said: “A careful study has been made of all the data presented by the declarant and a further study has been made of all available data and records bearing on the question at issue which are available in this office, of which could be obtained from other government bureaus.

The following report is the result of the additional studies which have been made and the additional information which has been obtained since the date of my original report.” In conclusion he stated: “I therefore, report that in my opinion New River in its present condition is not a navigable stream and that navigation on the Kanawha River will not be adversely affected by the proposed power development.” On March 2, 1926 the Power Commission held a hearing on the declaration of intention as to the building of the power dam. The only evidence then submitted was the second report of Gen.

Taylor, but there was argument by counsel for the Company and by the Attorney General of Virginia who appeared in opposition to the assumption of jurisdiction over the project by the Federal Power Commission. On April 17, 1926 the Commission transmitted to Gen. Taylor certain data with respect to the Pitt River in California which was considered as having a bearing on the question of the effect upon navigation on the Kanawha River by variations in the discharge of water from the Radford Dam, and requested his opinion thereon. On July 23, 1926 Gen.

Deakyne, Acting Chief of Engineers, replied that the data with regard to the stream flow of the Pitt and Sacramento Rivers in California afforded no reliable comparison for New River by reason of different conditions, and that the correct procedure would be to study the action of waves in New River produced by discharges from dams then operating on the river. He referred to a very exceptional dry summer of 1925 and suggested the possibility that exceptionally dry seasons may occasionally occur during which the Radford Dam if unregulated might adversely affect the navigable capacity of the Kanawha River.

The declaration which had been filed by the New River Company was assigned to and adopted by the Appalachian Company with the consent of the Commission on August 30, 1926, and on September 2, 1926 the Appalachian Company filed an application for a license on the Commission’s suggestion that it would expedite matters and could be withdrawn if it later developed that no federal license would be required. Pursuant to custom the District Engineer of the War Department gave public notice for a hearing at Radford on October 28, 1926, but no evidence was then introduced.

Thereafter the District Engineer made a report on December 22, 1926 favorable to the issuance of the license. On June 1, 1927 the Commission made a finding that the New River “is not ‘navigable waters’ within the definition thereof in said Act”, but that the interests of interstate and foreign commerce would be affected by such proposed construction.

It was not stated in what respect interstate commerce would be affected by the dam; but it appears that the Commission had reference to the effect on navigability of the Kanawha River; and the action of the Commission in that regard seems to have been based principally on its consideration of the data regarding the California rivers. On July 1, 1927 the Commission tendered a full “major” license to the Appalachian Company.

On April 26, 1928 the Company wrote the Commission that it was willing to accept all conditions reasonably designed to protect the navigability of the waters of the United States, and to be controlled by any reasonable rules and regulations which the Secretary of War might prescribe in the interests of navigation, but that unless the Commission could issue a license, the conditions of which related solely to navigation, the Company would proceed with the construction of its dam without obtaining a license from the Commission.

The letter also requested reference of certain questions of law to the Attorney General of the United States.

This request was not acted on at the time; and on February 4, 1930 the Company again wrote the Commission asserting its position that its project as operated would not affect navigable waters and therefore was not within the jurisdiction of the Commission and asking re-consideration of the subject, but nevertheless suggesting that if the Commission still asserted jurisdiction the Company would be willing to accept a so-called “minor-part” license containing only such conditions as would protect the interests of the United States in navigation.

The letter enclosed a memorandum or brief in support of the authority of the Commission to grant such a license. On July 21, 1930 the Commission requested the opinion of the Attorney General of the United States as to its authority to issue a so-called minor-part license, and in formulating the question stated that “New River is neither navigated or navigable in fact”. On September 22, 1930 Attorney General Mitchell in an extended opinion advised the Commission that it could properly do so. He said: “This

interpretation appears necessary in order to avoid serious questions regarding the constitutionality of the Act which might be presented if

section 10 (

i) should be interpreted so as to have no application to projects constructed in or on non-navigable streams, which only remotely and indirectly affect the navigability of waters in the lower reaches of streams to which they are tributaries.” On October 6, 1930 the Appalachian Company requeste'd action on its application for a minor-part license and submitted revised maps and plans for the project on October 16, 1930. On October 31, 1930 the Commission forwarded to the Company a draft of a minor-part license and on November 6, 1930 a revised draft of the same.

This omitted the objectionable conditions as to rates, amortization reserves and recapture. The Company replied that the form was' satisfactory and that if license was tendered it would at once begin construction work.

In the meantime the draft of minor-part license had been submitted to the Acting Chief Counsel for the Commission who submitted a memorandum disapproving its issuance because it was not sufficiently shown that the Company had complied with the laws of Virginia and in his opinion it did not adequately protect the interests of the United States; and that the previous finding of the Commission that the river was not navigable waters of the United States was incorrect and should be reversed.

The memorandum of counsel was submitted to the Chief Engineer of the Commission who replied in an extended memorandum not agreeing with the views expressed, and the Commission then re-submitted the question of navigability of the river to the then Acting Chief Engineer of the War Department, Gen. Brown, enclosing the memorandum of the Acting Chief Counsel of the Commission, and that of its Chief Engineer. Gen.

Brown replied that after reviewing the data there was no reason for changing the previous report of his office dated December 29, 1925, saying “it is my opinion tha1 New River is not navigable at any point in its course’*. On October 18, 1930 Major Herman, the District Engineer for New-River, had submitted a report in reference to a particular inquiry as to the navigability of New River at certain points in which he concluded: “It is the District Engineer’s opinion, therefore, that New River is not navigable in fact either at Jackson’s Ferry or Glenlyn, or at any other point in its course”.

On October 24, 1930, Col. Spaulding, the Division Engineer for New River, expressed his full concurrence with Major Herman’s opinion. The Company submitted to the Commission an official letter from the Governor of Virginia stating that the Company had complied with Virginia laws for the construction of the project. On November 25, 1930, at a meeting of the Commission, consideration was given to the issuance of the minor-part license and “after due consideration the Commission declined to take action on the application, favorable or adverse.

It was concluded that in view of the importance of the questions of jurisdiction as between the United States and the State of Virginia involved in this case a court adjudication is desirable.” At the Commission’s meeting on January 26, 1931 (the personnel of the Commission having changed pursuant to the amendment of the Act above referred to) the subject was again brought up and, in view of “the extreme importance of the legal questions involved” the Commission determined to hold another public hearing, notice for which was given for February 16, 1931.

At that hearing attorneys for the Company and for several States submitted arguments and briefs respecting the

interpretation of the Power Act, and the constitutional power of the federal government with regard thereto, and the authority of the Commission to issue a minor-part license. No evidence was introduced. On April 3, 1931 the Commission filed an opinion and order denying the application for a minor-part license, and directing that the Appalachian Company be tendered a standard form license under the Act, and ordering that it should not proceed with construction without such license.

A minority of the Commission then favored a reversal of the former finding that the river was not navigable waters, but the majority were of the opinion that that question was one for the courts; that any finding of the Commission in that respect would not be binding upon the courts; and that the jurisdiction of the Commission was properly based upon

section 23 of the Power Act above referred to. Thereafter on June 8, 1931 the Appalachian Company filed suit in the United States District Court for the Western District of Virginia against the individual members of the Commission to remove a cloud on the title to their land and to restrain the defendants from interfering with the Company’s use of its property. The case was dismissed by the District Judge on the legal insufficiency of the complaint, but on appeal to this court the case was dismissed for lack of personal jurisdiction over the defendants. Appalachian Electric Power Co. v.

Smith et al., 4 Cir., 67 F.2d 451, 458. While the case was pending in the District Court the Commission on October 12, 1932 adopted a resolution which, after referring to the pending case and the contentions of counsel therein as to the navigability of the New River, and the findings and action of the Commission with respect thereto, stated — “The Commission finds and declares that New River, from the mouth of Wilson Creek, Virginia, north, is navigable waters within the definition thereof, as set forth in

section 3 of the Federal Water Power Act”, 16 U.S.C.A. § 796. This last action of the Commission was not taken after notice or hearing additional evidence. The issues in the present suit: The Appalachian Electric Power Company began construction work on the dam about June 1, 1934.

The bill of complaint in this case was filed May 6, 1935 to enjoin construction of the dam, averring that “New River is a navigable interstate stream arising in North Carolina and flowing in a northerly and northwesterly direction across the State of Virginia, into West Virginia, to the junction of Gauley River and New River, from which point it becomes known as the Kanawha River”; that the dam would constitute an obstruction to navigation and its construction was in violation of the two Acts of Congress above mentioned. The answer of the defendant denied these contentions.

The principal and controlling issues presented by the pleadings are therefore (1) whether the New River at Radford, Virginia, constitutes navigable waters of the United States; (2) if not, whether the construction and maintenance of the dam will naturally and necessarily obstruct or substantially impair the navigability of any other navigable waters of the United States and particularly those of the Kanawha River into which New River flows, or the Ohio River, into which the Kanawha flows; and (3) if neither of these facts is found, whether the defendant’s actions are in violation of the Federal Power Act.

There are some subordinate or incidental issues of law involved in these major propositions, one of which is the contention that the Commission’s declaration of October 12, 1932 constituted a finding of fact that the New River is navigable; was based on substantial evidence, and therefore was conclusive in the case. There is also the contention by the Appalachian Company that there is no constitutional basis for the economic and financial conditions of the so-called major license contained in the Power Act as they do not in any way relate to navigation.

There was a lengthy trial of six weeks or more in the district court and a very voluminous record has resulted.

Much testimony was introduced regarding the physical characteristics of New River throughout its course and in particular stretches; concerning its history from its original discovery late in the seventeenth century; its use or lack of use for navigation during its history; the roadways and railroads touching it; the produce or commerce of the neighboring country; the natural and usual or normal methods of operation of a hydro-electric dam; the possible or probable or intended method of operation of the particular Radford Dam; and the effect, if any, that the discharge or lack of discharge of water therefrom would have upon the lower stream.

The greater part of the extensive testimony was given before and orally heard by the district judge, and there was also a large amount of documentary evidence relating to the history and physical characteristics of the river, and reports of engineers of the War Department with respect to conditions found during the brief period of expenditure of government funds on strictly localized portions of the river, and proceedings before the Power Commission. The evidence also contains very numerous exhibits including many photographs of the river at various points, and maps and plats.

After the trial and consideration of briefs of counsel, the district judge filed an extended opinion reported in 23 F.Supp. 83, in which he discussed the issues of law and fact and separately made specific findings of fact and conclusions of law. On the controlling facts he found— • “13. The New River is not a navigable water of the United States, either at the site of defendant’s project or elsewhere throughout its course. The site of defendant’s project is approximately 152 miles above the mouth of New River and approximately 160 miles above the head of navigation on the Kanawha River. “15.

The construction of the defendant’s project will not obstruct the navigable capacity of the Kanawha River or of any navigable water of the United States.

And the operation of defendant’s project in any normal, rational, or probable method of operation will not obstruct or impair the navigable capacity of the Kanawha or any navigable water of the United States and will not affect the interests of interstate commerce.” On issues of law he determined that the New River is not a navigable water of the United States; that findings made by the Power Commission are not final, but in each case are subject to the determination of the courts; that the proper construction of the Power Act did not vest in the Commission the authority to require a license for a project in a non-navigable stream; that even if the Commission had power to require some license for a power dam in non-navigable waters of the United States, it could not validly impose therein conditions having no relation to navigable capacity of any navigable water of the United States; and that its action in seeking to impose upon the defendant the full major-part license in this case without constitutional authority to do so, bars its right to the relief prayed for; and that the bill of complaint should be dismissed as without equity.

By the decree of May 10, 1938 the bill was dismissed, but the opinion concluded [23 F.Supp. 117]: “By that it is, of course, not meant to hold that all rights of the United States to complain of this project are forever barred.

If at any time in the future the project should be operated in such manner as to interfere with the navigable capacity of the Kanawha or any other navigable water (a contingency which appears most improbable), the United States will not be barred from asserting its right to protect this navigable capacity by compelling a removal of the structure or such modification of its operation as is necessary.

But I am convinced that the evidence in this case does not disclose grounds for the issuance of an injunction at this time and the prayer for an injunction will be denied and the bill dismissed.” As the facts in this case were determined by the court without a jury, we are guided in our consideration of the findings of fact made by the District Judge by Rule 52 of the new federal rules of civil procedure, 28 U.S.C.A. following

section 723c, which provides: “52. In all actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of appropriate judgment * * *. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” The new rule has been recently applied here in Guilford Const. Co. v.

Biggs, 4 Cir., 102 F.2d 46, 47, where, in an opinion by Judge Parker, it was said: “The provisions of the new procedural rules that the findings of fact of the trial judge are to be accepted on appeal unless clearly wrong (Rule 52(a), 28 U.S.C.A. following

section 723c) is but the formulation of a rule long recognized and applied by courts of equity. Adamson v. Gilliland, 242 U.S. 350, 37 S.Ct. 169, 61 L.Ed. 356; Deutser v. Marlboro Shirt Co., 4 Cir., 81 F.2d 139, 142; Sherman v. Bramham, 4 Cir., 78 F.2d 443; Miller v. Pyrites Co., 4 Cir., 71 F.2d 804; Suburban Imp. Co. v.

Scott Lumber Co., 4 Cir., 67 F.2d 335, 90 A.L.R. 330.” This rule seems to have special application in a case such as this where the trial has been exceedingly lengthy, very many witnesses have been heard orally by the district judge, and the subject matter so largely concerns a prominent geographical feature of his own' district.

Nevertheless in view of the importance of the case, involving as it does conflicting contentions as to state and federal power, and an important policy making Act of Congress, as well as individual property rights, we have felt it particularly necessary to carefully review the evidence in the case on which the findings of the District Judge are based.

The States of Virginia and West Virginia have separately filed briefs in this case as amici curiae taking the position that the New River both in Virginia and West Virginia does not constitute navigable waters of the United States, and that the Federal Power Commission is without jurisdiction over the river. In considering the effect and weight of the factual evidence regarding the New River, it will be helpful to first state the well established law with respect to rivers and streams, both intrastate and interstate, and whether navigable or not, and the riparian rights thereon respectively.

In this case, which so directly involves state and federal rights, it is important to steadily keep in mind our constituí ional distribution of power between the state and federal governments. The title to the beds of navigable waters within a state are vested in the State unless under its laws they belong to the riparian owners, (Borax Cons. Ltd. v. Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9; Appleby v. New York, 271 U.S. 364, 46 S.Ct. 569, 70 L.Ed. 992; Port of Seattle v. Oregon & W. R. Co., 255 U.S. 56, 63, 41 S.Ct. 237, 65 L.Ed. 500; Arkansas v.

Tennessee, 246 U.S. 158, 38 S.Ct. 301, 62 L.Ed. 638, L.R.A.1918D, 258; United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; Pumpelly v. Green Bay & M. Canal Co., 13 Wall. 166, 20 L.Ed. 557), 'and “the right of the United States in the navigable waters within the several states is limited to the control thereof for purposes of navigation”. Port of Seattle v. Oregon & W. R. Co., 255 U.S. 56, 63, 41 S.Ct. 237, 239, 65 L.Ed. 500; United States v. Oregon, 295 U.S. 1, 14, 55 S.Ct. 610, 79 L.Ed. 1267; James v. Dravo Contracting Co., 302 U.S. 134, 140, 58 S.Ct. 208, 82 L.Ed. 155, 114 A.L.R. 318.

The federal government has no property rights in navigable streams or in the waters thereof. Its only power with respect thereto flows from the interstate commerce clause of the Constitution, a necessary incident of which is the power to control and protect navigation on navigable interstate rivers- and other bodies of water. Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23.

Within the proper scope of the interstate commerce power, the control of navigation by the federal government is plenary; but its sphere of operation is necessarily limited to the protection of commerce which is interstate; the control over purely intrastate rivers and streams, as such, remains with the states, whether the waters are navigable or not; and it necessarily follows even an interstate stream which is not in fact navigable for purpose of interstate commerce is not subject to the control of the federal government, except to the extent necessary to protect other navigable waters.

Federal legislation with respect to navigable waters is permissible only when it has some real and substantial relation to the control of navigation. United States v. River Rouge, Imp. Co., 269 U.S. 411, 419, 46 S.Ct. 144, 70 L.Ed. 339; Port of Seattle v. Oregon & W. R. Co., 255 U.S. 56, 63, 41 S.Ct. 237, 65 L.Ed, 500; Wisconsin v. Illinois, 278 U.S. 367, 415, 49 S.Ct. 163, 73 L.Ed. 426. For instance, Congress,has no authority to construct a hydro-electric dam primarily and only for the development and sale of water power. Ashwander v.

Tennessee Valley Authority, 297 U.S. 288, 333, 56 S.Ct. 466, 80 L.Ed. 688; Alabama Power Co. v. Gulf Power Co., D.C., 283 F. 606, 613; Little Falls Fibre Co. v. Ford & Son, 249 N.Y. 495, 507, 164 N.E. 558, affirmed 280 U.S. 369, 50 S.Ct. 140, 74 L.Ed. 483. Where interstate waters are capable of promoting interstate commerce to a substantial degree, they are said to be waters of the United States, a classic definition of which is given in The Daniel Ball, 10 Wall. 557, 563, 19 L.Ed. 999, as follows: “Those rivers must be regarded as public navigable rivers in law which are navigable in fact.

And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commercé, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.

And they constitute navigable waters of the United States within the meaning of the Acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.” The rule of this case has not been since departed from, but it has been interpreted and applied in many different factual situations, as a result of which it is now held that an interstate stream is navigable in fact only when it is so used or susceptible of being used in its natural and ordinary condition (United States v.

Oregon, 295 U.S. 1, 55 S.Ct. 610, 79 L.Ed. 1267; United States v. Utah, 283 U.S. 64, 76, 51 S.Ct. 438, 75 L.Ed. 844; United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465; Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 86, 43 S.Ct. 60, 67 L.Ed. 140); it must be capable of valuable public use in its natural condition (United States v. Cress, 243 U.S. 316, 321, 37 S.Ct. 380, 61 L.Ed. 746); must have a capacity for useful interstate commerce of a substantial and permanent nature (Leovy v.

United States, 177 U.S. 621, 20 S.Ct. 797, 44 L.Ed. 914), and must have a capacity for general and common usefulness for purposes of trade and commerce (United States v. Oregon, 295 U.S. 1, 23, 55 S.Ct. 610, 79 L.Ed. 1267). Only occasional or exceptional use under abnormal conditions is not sufficient (Oklahoma v. Texas, 258 U.S. 574, 591, 42 S.Ct. 406, 66 L.Ed. 771; United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 699, 19 S.Ct. 770, 43 L.Ed. 1136); and, as this court said in United States v. Doughton, 4 Cir., 62 F.2d 936, 939, quoting from Harrison v.

Fite, 8 Cir., 148 F. 781: “A theoretical or potential navigability, or one that is temporary, precarious, and unprofitable, is not sufficient.” Is New River at Radford, Virginia, a navigable river of the United States? A very large part of the evidence relates to this issue. Apparently counsel have exhausted the available information, documentary, historical and personal within living recollection.

The whole evidence was reviewed and summarized and discussed at length in the opinion of the trial judge who reached the conclusion that the question must be answered in the negative, and our independent examination convinces us that he reached the right conclusion. The evidence is entirely too voluminous to review it in detail, but we will state the outstanding points which have convinced us that the dam is not located in navigable waters of the United States. Physical characteristics of the river.

A mere description of the physical and natural characteristics of the river is very persuasive that it is not susceptible of that character of navigation which is necessary, under the decisions above cited, to support the claim that it is navigable water of the United States. It is properly said to be sui generis, and is unlike many of the numerous rivers which have been described and held either navigable or non-navigable in Supreme Court decisions which we have noted.

It is characteristically a mountain stream with steep gradient, relatively rapid current, and comparatively narrow stream bed, the river running in many places over limestone and sandstone, rocks and shale, the boulders frequently jutting above the surface of the water, whh alternating comparatively still pools of varying length and numerous rapids, falls and shoals in many of which the depth of the water over the rocks is only about one foot, and frequently only a few inches. The following short general description is taken from a report by the Secretary of War to the House of Representatives in 1935 (74th Cong.

House Document No. 91) : “Through almost its entire length .the river flows through a rugged mountainous country. Its valley is narrow, the flood plain being very little wider than the low-water channel, which varies in width from about 200 to 1,000 feet. In many places the banks are sheer bluffs rising from the river’s edge. Ledges of limestone, sandstone, and shale crossing the river at frequent intervals create rapids and waterfalls. The waterfalls vary in height up to about 18 feet. Between the ledges there are usually short pools of varying depth.

The low-water depth in the channel varies from a few inches to more than six feet.” Among mountain streams it seems to be unique in the peculiar geologic formation of its rocky bed due to folds and faults in the rock strata, producing ledges running across the stream in many places. In a thirty-five mile stretch of the river in Giles County, Virginia (an important

section in this case, as is hereinafter particularly discussed), the geologic environment is “markedly unusual” in that it has been the scene of four predominant breaks or faults; and the slope or gradient of the rocks in the river bed is very unusual in that the incline “is downward in an upstream direction rather than in a downstream direction”, with the result that the water falls over the ledges almost vertically.

Some of the ledges are upthrust above the surface of the water, and some are barely submerged, and this relative condition varies naturally with the depth of the water in alternate wet and dry periods. The difficulties and dangers of navigation caused thereby, both downstream and upstream, are obvious. New River rises in northwest North Carolina near the Virginia line and flows generally north-easterly through Virginia for 125 miles.

After passing Radford, Virginia, 'it turns generally northwestward and crosses the Virginia-West Virginia state line at a point about 160 miles below its head (the mouth of Wilson Creek), and then flows north about 25 miles to the City of Hinton in West Virginia, and thence northwesterly about 65 miles to Gauley, West Virginia where it unites with the Gauley River, and the two form the Kanawha River which continues in a northwesterly direction about 95 miles to Point Pleasant, West Virginia, where the Kanawha joins the Ohio River.

The total distance from the head of the river at Wilson Creek to the Kanawha River is about 252 miles, and continuing to the Ohio River is 347 miles. Kanawha Falls,- a precipitous rapid with a fall of 16 feet, is situated a mile or two below the junction of the New and Gauley Rivers, and the head of navigation on the Kanawha is a few miles below Kanawha Falls. The physical characteristics of the Kanawha are greatly different from New River, having a gradient of only 1.25 feet per mile as compared with the average gradient of the New River of 7.1 feet per mile.

The Kanawha is admittedly navigable and has been fully “canalized” by the government which some years ago' maintained ten navigation dams thereon, which have now been, replaced in whole or in part by four new modern navigation and power dams of concrete construction. The gradient, slope or fall of the bed of New River is not uniform throughout its course but varies from three to four feet per mile to, at places, 31 feet per mile. The elevation above sea level at Wilson Creek is 2240 feet and at Gauley, 651 feet; at the mouth of the Kanawha the elevation is about 500 feet.

The stream velocity varies at the shoals and rapids from 3 to 5 miles per hour. The pools of comparatively still water vary in length from a few hundred yards to several miles with a probable average length of less than a mile. The rapids also vary in extent and in the degree of fall. Rapids of 2,000,feet are not uncommon and there are some of much longer extent. The low water depth in the channel varies from a few inches to more than 6 feet.

After entering Virginia in Grayson County the river flows through and between spurs of the Blue Ridge Mountains, parallel to the main divides of the Blue Ridge and Alleghanies; and through almost its entire length at places through rugged mountainous country. The most steep, rough and rugged

section of the river begins a few miles below Hinton and runs for approximately 45 miles in a narrow tortuous channel between high mountains where the river bed is a mass of sharp ledges and boulders and the water rushes with great velocity. The average volume of flow of the river at Radford over a period of 28 years ending September 30, 1935, was 3,211 cubic feet per second; the lowest recorded flow there was 521 second-feet on September 6, 1930 during the drought of that year. In the floods of 1878 and 1916 the flow was estimated at about 155,000 second-feet and 146,000 second-feet respectively.

At Kanawha Falls, fifty-six year records show an average flow of 13,000 second-feet with a maximum of 270,000 in the flood of 1878 and a minimum of 640 second-feet on August 14, 1930. The history of New River affords no satisfactory evidence of the early use of the river as a highway for trade or travel, although the valley of the river would have made it a convenient highway through the mountains of Virginia toward the Ohio if the river had been navigable in fact. The river was discovered in 1671 by Col. Abram Woods, and there apparently were settlements in its valley by the middle of the eighteenth century.

Early military expeditions toward the west apparently made no use of the river. Several exploratory trips on the river, or parts of it, were made in 1742, 1812, 1817, 1819 and 1828; but the reports thereof do not indicate that there was any navigation on the river. Some early Acts of Virginia and West Virginia have been referred to, relating to proposed opening or improvement of the river, or parts of it, for navigation, but nothing substantial seems to have been done under them.

The earliest recorded use of the river for any form of transportation seems to have 'been during the Civil War when the Confederate Forces had a commissary depot some miles above the Virginia-West Virginia line and some supplies therefor were occasionally taken down the river in bateaux. There were a number of lead .and iron mines situated on or near the river just above Radford, and there was ■coal in West Virginia. About 1872 some persons interested Congress in a plan for improving the New River for use in transportation between the two states.

The implication would seem to be that the navigation of the river for this purpose did not then exist. In that year Congress authorized a survey of the New River which resulted in the so-called “mile by mile” survey which is, in our opinion, the most valuable evidence of the natural characteristics of the river. Beginning in 1876 and runrning through 1882 Congress made various .appropriations for work on the river.

It was apparently contemplated that improve■ments should be made from Hinton up the Tiver for 191 miles; but by reason of the very limited appropriation and the experience as to the cost of the work the en;gineers very soon decided that it would be impossible to create practical and continu■ous navigation through this entire distance, .and they therefore concentrated their work •on the stretch-up-stream from Hinton for .about 25 miles, and up-stream from Rad-ford for about 30 miles.

The work as originally planned was divided into three sec.tions of the river, one known as the lower or Greenbrier Division extending up-stream from Hinton; the Middle or New River Bridge Division, beginning about Radford, Virginia, and extending up-stream to the lead mines in Wythe County, and the third

section was known as the Upper or Lead Mines Division, from the lead mines toward the head of the river. No work was done on the Lower and Middle Divisions after 1882 and very little work thereafter was done on the Upper Division. In all about $112,000 was expended under various annual congressional appropriations. In 1891 Col. Craighill, who had been in general charge of the work throughout, reported to the Chief of Engineers of the War Department that the expenditure of a small balance of the appropriation for the work on the Upper Division would be a useless waste of public money.

It is said by the plaintiff that this was the most ditficult portion to improve. The most re-liable evidence in the case in our opinion with regard to the conditions of the river, and the use or absence of use thereof for navigation, is to be found in the annual reports of the District Engineers in charge of the work. The whole is summarized in the report of Gen. Taylor, Chief of En-gineers of the War Department, to the Federal Power Commission on December 29, 1925.

After correctly stating the substance of the' applicable law as to navigable waters of the United States, and expressing the opinion that the natural condition of New River prior to the federal work did not show that it was navigable in fact, he continued: “It js my opinion that these natural con-dj tions were not changed by subsequent improvements,. to the extent of making the river a highway for commerce.” The,n after s*a1f & *he am°unt of work accomplished m the three divisions separately he said: “Work was limited to the most easily improved places and effort made to so ameliorate conditions as to permit local navigation.

The results were not satisfactory or important and Congress discontinued appropriations after 1886, less than one-third of the funds required for any effective improvement having been provided. * * * It is evident that the work executed by the government during the years 1877 to 1882, did not materially change the natural non-navigable conditions of the river. The improvement effected was at most slight and fragmentary, and the small channels worked over are reported to have deteriorated due to the natural action of ice and current.

Continuous navigation on the river has never been possible, and whatever commerce has existed has been altogether local, apparently confined to the 25-mile

section in West Virginia ending at Hinton. "The District and Division Engineers have reported that there is no commerce and that the river is not now navigable in fact, but they assume that it is legally navigable for the reason that moneys have been expended on it for channel improvement by authority of Congress. It is well settled by judicial decisions that acts of Congress appropriating money for the improvement of a stream are not to be construed as declarations express or implied that the stream is actually navigable.

Congress may authorize the improvement of a non-navigable stream with a view to creating navigability, yet unless the improvement is accomplished the natural state of the stream is not changed. Whether or not it is navigable is still a question of fact unaffected by the consideration that money has been appropriated and expended in an effort to improve it." Opinions of War Department Engineers. The opinions of the Chief and District Engineers of the War Department familiar with the conditions on New River are entitled to much weight in this case.

It is true that they are only opinions and are by no means conclusive; but they represent especially competent professional opinions on the subject matter with which they were necessatily well acquainted; and their opinions are disinterested. Reference has already been made to many opinions of different engineers touching the matter at different times, both long before the origin of the present case, and during its currency. Thus we have the deliberate opinion of Gen.

Taylor in December 1925, after a full review of all the data then available in the War Department upon the subject, and we have his opinion later confirmed in 1930 by the then Chief of Engineers of the War Department, Gen. Brown, and also confirmed by Col. Tyler, Chief Engineer of the Federal Power Commission. Similar opinions have been expressed by District and Division Engineers on other occasions with regard to the river. It is very significant that the Commission found the report and opinion of Gen. Taylor a sufficient basis for its (first) finding of non-navigability. Other evidence on navigability.

It is not disputed that there is no appreciable use of the New River either intrastate or interstate for navigation at the present time, and there has been none for probably at least 25 years in the past. Probably the disappearance of all navigation of the river even locally in the vicinity of Radford and Hinton was partly influenced by the coming of the railroads and the improvement of adjacent roadways.

However that may be, at the present time the river is certainly not used and is useless for any substantial or valuable navigation, but by virtue of its physical characteristics is very valuable for water power purposes. A number of power dams have been erected on the river of which there are two a considerable distance above Radford (one about fifty miles) which were constructed without obtaining any authority from the federal government and which have never been interfered with by it. There are also many bridges across the river.

The government itself has determined to erect a very large dam and reservoir without locks or other means for navigation, for the combined purpose of flood control and power development, in the river a few miles upstream from Hinton. Condemnation proceedings for this purpose are now pending and the government's position therein has been sustained by this court. United States v. West Virginia Power Co., 4 Cir., 91 F.2d 611.

It is also not without significance that the plans and specifications for the Radford dam (without provision for locks) have been approved by the War Department from the standpoint of navigation, and the Federal Power Commission in tendering a license to the defendant company therein recited its finding that the construction of the dam would not be an obstruction to navigation but properly operated would be an improvement thereof.

In these circumstances it is apparent that navigation on New River between Radford and Hinton is not a matter of practical moment and the question of navigation is at the most only theoretical. United States v. Doughton, 4 Cir., 62 F.2d 936. It seems to be an entirely logical inference that if the government has heretofore maintained that the river constitutes navigable waters of the United States between these points, that view must be considered to have been abandoned by it for all practical purposes. We are not unmindful that the Supreme Court in Economy Light & Power Co. v.

United States, 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847, held that unauthorized artificial obstructions in an otherwise originally navigable river did not destroy its legal navigability; but there the court was dealing with a situation' where the DesPlaines River had been in the past one of the principal highways of commerce, trade and travel to the west for more than a century; and the intervention of the government was under different circumstances from those here existing. The question of navigability is one of fact and each case must be determined on its own circumstances.

In the present case the actions of the government in the respects just referred to at least are important evidentiary facts bearing on the question whether there is now or ever has been navigability in fact of the New River.

The complaint in this case alleged that New River was navigable throughout its whole course from its source at or near the North Carolina-Virginia line through the states of Virginia and West Virginia; but this extensive claim has now been abandoned and the contention as to navigability is limited to the 115 mile stretch of the river from Allisonia in Virginia (about 30 miles up-stream from Radford) to Hinton in West Virginia. From Rad-ford to the Virginia-West Virginia line the river is about 60 miles in length; and Hinton in West Virginia is 25 miles further down-stream.

For the plaintiff to successfully maintain that New River at Radford, Virginia, constitutes navigable, waters of the United States, it had the burden of proof to show that the river was a highway for substantial and permanent trade and travel of a generally useful and valuable nature between Radford and Hinton or other points in West Virginia. Upon consideration of voluminous evidence the district judge reached the conclusion that this had not been shown and our independent consideration of the evidence leads us to the same conclusion.

We have not failed to carefully consider the arguments of counsel for the plaintiff in opposition to this conclusion. It is said that the opinion of the district judge (contrary to his findings of fact) shows that the stretches of the river in the somewhat improved sections up-stream from Radford and Hinton respectively were navigable in fact, and it is contended that the physical characteristics of the river in the 60 mile stretch down-stream from Radford to the State line are such that it was susceptible of navigation equally with the improved sections before their improvement.

We are not persuaded that this contention on the facts is established. The evidence of the defendant’s photographs of places on this

section of the river and the mile-by-mile survey above referred to show the serious obstacles to navigation in this stretch of the river consisting of several difficult falls, and many long rapids and shoals. And this stretch ■includes the 35 miles in Giles County having markedly unusual geologic formation of the rock strata of the river bed above mentioned. It is said there was an ample volume of water, and the gradient or slope of the river was on the average not much steeper than in the sections which were improved, and that the pools were much greater in extent than the rapids.

But the obstacles to navigation consisted chiefly in the falls and rapids which were numerous and long; and the slope was not uniform, but very much greater than the average in many places. No federal work was done on this 60 mile

section of the river between Radford and the State line with the exception of less than a mile •in Virginia which had no important significance in interstate navigation. As appears from their reports the engineers concentrated their limited available funds on the improvement of conditions around Radford and Hinton where there was access to railroads and where it would therefore be of some value locally.

If this stretch of the river was not navigable in fact in its unimproved condition, it is not to be considered navigable merely because it might have been made navigable by improvements which were not in fact made. Of course if the improvements had been made the question of fact might have been different.

Much reliance is also placed by plaintiff’s counsel on their contention that despite any obstacles to navigation in the 60 mile stretch between Radford and the state line, there was sufficient testimony of non-expert witnesses with regard to the use of bateaux or keelboats on the river to show that it was navigable in fact even in this critical stretch.

It appears from the engineers’ reports that there was some use of keelboats on the river as early as 1873; but the extent of their operation before the beginning of the government work in 1878 is not stated, and the annual reports during the government work indicate quite clearly that their use was local in the vicinity of Hinton and Radford respectively; and there is nothing in these reports to show navigation by keelboats between Radford and Hinton.

Plaintiff’s counsel say that this missing evidence is supplied by a number of aged witnesses testifying from unaided memory as to their knowledge or observation of keelboats in the river fifty to sixty years ago. The district judge discussed at length the extent of the use of keelboats on the river and summarized it as follows: “It was in these separated stretches of the river that practically all of the bateaux navigation took place and only on them that there was any appreciable trade or commerce by boat.

It is not meant to say that continuous movement of such boats between Hinton and the vicinity of Rad-ford was impossible or did not occur. There is evidence which indicates that it did occur, but there is a vagueness about the extent to which it occurred and indications that such trips were irregular, were attended with difficulty, and formed no appreciable part of any commercial transportation which took place on the river.

The most definite evidence of the extent of navigation on the river are the reports of the government engineers both before and after beginning improvement of the river in 1877, and these reports repeatedly state that the commercial navigation was local to separated stretches of the stream and that there was no continuous navigation.” (Italics supplied.) It is said that this conclusion did not correctly appraise the effect of the oral non-expert testimony; and in plaintiff’s reply brief there are listed the names of 23 such witnesses from whose testimony it is contended the contrary conclusion should have been reached.

We have carefully considered this testimony, but are not convinced that it was given too little weight. This is the type of testimony that the trial judge who sees and hears the witnesses is particularly well qualified to appraise. These witnesses were for the most part elderly men who were testifying purely from unaided memory of events long past. Such testimony has inherent infirmities and is obviously not entitled to the weight to be properly given to contemporary official written records. United States v. Oregon, 295 U.S. 1, 19, 55 S.Ct. 610, 79 L.Ed. 1267.

It also had to be appraised in connection with similar testimony of almost an equal number of witnesses introduced by the defendant by which it was to a considerable extent contradicted or qualified; and proper consideration also had to be given to the other testimony in the case, verbal and documentary, of expert and scientific witnesses tending very strongly to show that the river was non-navigable in fact.

But even if the recollection testimony of the witnesses on both sides is viewed as a whole apart from the other evidence, we do not think that it showed interstate navigability of the river within the requirements of the judicial decisions above mentioned.

Very few of these 23 witnesses for the plaintiff (about four or five) testified to any personal experience in keelboat trips on the river between Radford and Hinton (and from parallel testimony by defendant’s witnesses several of these were not ordinary commercial trips for trade or travel); more (six or seven) related recollection of their use between Hinton and Glenlyn (the latter in Virginia about 5 miles from the state line); and the others stated that they had seen or used keelboats on one or more occasions at various points on the river within the 60 mile stretch, and some of them had hearsay information that some of the boats went as far down stream as Hinton.

Viewed as a whole, the testimony seems to us to establish nothing more than that there were some trips of keelboats between Radford and Hinton; that such trips could be made only at particular times when there was unusually high water; that even then navigation was not only difficult but also dangerous; that while the boats at times may have carried some country produce there was nothing like an established trade and commerce between Radford and points in West Virginia; and that the duration of such use of the keelboats was for a few years only and has been non-existent for more than 50 years.

Very possibly this entire disappearance of any keelboats on the river was influenced somewhat by the coming of the railroads to Glenlyn in 1883 and to Allisonia in 1886; (there were railheads at Hinton in 1873, and at Radford some years earlier); but there was also testimony of non-expert witnesses submitted by the defendant to the effect that the attempt to commercially use keelboats was unsuccessful and unprofitable, and in the Radford-Allisonia district was substantially abandoned before the railroad came to Allisonia in 1886. We conclude that the

summary of the testimony on this point above quoted from the opinion of the district judge is a fair appraisal of the evidence ; and that the plaintiff has not shown that there was interstate navigation on New River of such a substantial and permanent nature, and of such general and common usefulness, that it would subject the river to federal servitude for the benefit of -navigation. We have also considered the weight to be properly given to the fact of the government work.

In many cases such evidence may be a factor of great importance in favor of navigability; but in this case we do not think it conclusive or even very important, in view of its limited nature and abandonment. It was referred to in the reports as “experimental” and was finally abandoned as a further waste of money, on the Upper Division. It did not, according to the reports, essentially change the original non-navigable condition, and was limited to a few local stretches. In the circumstances it cannot properly be regarded as establishing navigability. Oklahoma v.

Texas, 258 U.S. 574, 590, 42 S.Ct. 406, 66 L.Ed. 771. Will the maintenance and operation of the dam obstruct the navigable capacity of any down stream navigable waters of the United Statesf Here again the testimony bearing on this issue is voluminous consisting largely of scientific and expert opinion.

It also has been reviewed at length in the opinion of the district judge who concluded that the operation of the dam in any normal, usual and reasonable way would not substantially affect the down-stream navigability of the Kanawha or Ohio Rivers; and in our opinion the weight of the evidence bearing on this issue clearly supports the finding made. Of course the mere construction of the dam apart from its operation could have at the best only very temporary effect on the downstream flow of water pending the filling of the storage reservoir behind the dam.

It is not the plaintiff’s contention that the dam must necessarily be operated in such a way as to prejudice down stream' navigability, because it is conceded in the briefs that the proper operation of the dam in accordance with the conditions of the proposed license and the rules and regulations of the Commission and the War Department -would even be of benefit to navigation. The contention is that the size and capacity of the dam, in relation to the average volume of flow of the stream, is such that the only reasonable inference is that the dam will be operated in a way to impair down-stream navigability.

It is pointed out that the plans for the dam provide for a draw down area of 27 feet with hydro-electric machinery of 104,000 h. p., and a capacity for water consumption of 9,000 cubic feet per second ; and that the average annual flow of the New River at the point of the dam is only a little more than 3,000 cubic feet per second. The capacity of the reservoir or storage pool for water behind the dam is said to be 100,000 acre-feet.

It is also pointed out that this hydro-electric dam is only one link in a large electric light and power generation and distribution system of the Appalachian Company whose public service extends interstate over a distance of 100 miles or more.

From these facts it is argued that - the cost of the dam could be economically justified only on the assumption that it would function in the whole system to furnish power at that time of the day and week when the power demand upon the Appalachian system is at its peak, or, as it is expressed, the dam will be operated on a “peak” basis; and it is further said that this means operation in which during about eight hours of the day five days a week the power machinery will be used to its full capacity of 9,000 cubic feet per second and will discharge that amount into the' river below the dam, while during the remaining hours of the day for five days a week, and probably all of Saturday and Sunday, there will-be no operation of the dam for the generation of electricity, and no discharge of water into the river below the dam.

The ultimate deductions made in the argument are that in the low water seasons the consumption and discharge of water will be cut off entirely until the reservoir is filled, thus depriving the Kanawha and Ohio Rivers of a material part of their water supply from New River; and when the dam is operated the alternate shutting down of the plant with no discharge of water and the release of water during the hours of operation at the rate of 9,000 cubic feet per second will cause “power waves” which will have an adverse effect upon navigation in the Kanawha by causing there fluctuations or oscillations- in the stream.

The defendant denies the reasonableness of these assumptions as to the method of operation of the power dam, and very definitely says that it has no intention to so operate it, and that the assumed method would be abnormal and impracticable. It explains that the large maximum capacity for the use of 9,000 cubic - feet per second flow is not designed to be used currently, but only as a potential reserve for temporary emergencies.

The defendant realizes that by customary day by day operations it cannot use more than the average amount of the water flow, simply because the water will not be there to use; and therefore it must proportion its actual operations to the stream flow, occasionally drawing on the reservoir for the continuance of customary and usual operation, when the water flow in dry periods is abnormally low.

The defendant does not deny that in its intended customary daily operation there will be a variable amount of water discharged from the dam, but it does deny that there will be such great variations as are assumed by the plaintiff; and it denies that the variable amount will have any adverse effect on down stream navigability.

The defendant’s stated position is that it fully realizes that it has no property right in the water as such, and is only entitled to a reasonable use thereof as riparian owner, which must be limited in such way that the rights of other riparian owners on the stream below and above will not be prejudiced.

It points out that it will have a very large monetary investment in its project and that it would be economically very unwise and indeed foolish to operate its plant in such a way that the rights of others would be impaired and the defendant subjected to damages therefor; or to operate the plant so that it would be subject to a successful injunction suit for impairment of navigable capacity of down stream waters.

There is no reason to doubt the good faith of the defendant in its position so stated because it expressed its willingness to accept the minor-part license from the Commission containing, among other things, the condition that it as licensee should be liable for all damages occasioned by the operation of the project; and the condition that “whenever the flow at lock No. 2, Kanawha River, falls below 1400 second feet, the Licensee shall when so directed by the Secretary of War discharge in each 24 hours the natural flow of the river at the dam site during that period up to a discharge of 1150 acre feet.

The discharge from the project shall at all times be regulated by such rules and regulations as the Secretary of War may prescribe to prevent undue interference with navigation on the Kanawha River.” The evidence of expert witnesses offered by the plaintiff on this issue was largely based on their assumptions as to the defendant’s probable operation of the dam.

The contentions in substance are that for considerable periods of time there would be no discharge of water from the dam in consequence of which the volume of water flow in the Kanawha and Ohio Rivers would be seriously diminished; and the discharge of water from the dam when made would be in such large quantities as to form block waves of 9,000 cubic feet per second which would cause much increased velocity of current in the Kanawha and fluctuations and oscillations of the .water level which would impair its navigability.

These contentions are refuted in the testimony of a number of witnesses for the defendant who were competent and experienced engineers in the construction and operation of hydro-electric plants.

In this connection it is to be noted that the distance on the river from the Rad-ford Dam to the head of navigation in the Kanawha is approximately 160 miles on a tortuous river course interspersed with numerous, rugged ledges; and there is a recently constructed power dam at Hawks Nést on the New River a few miles upstream from the Kanawha which would naturally absorb any “power waves” from the Radford plant that remained after their 150 mile journey from Radford.

In addition the government has recently constructed three large navigation and power dams on the Kanawha River known as the London, Marmet & Winfield Dams, with another now under construction at Gallipolis, Ohio, equipped with locks for navigation, as a result of which the Kanawha River is fully “canalized”, that is, consists of a series of pools between the dams affording approximately uniform depth of water for navigation. These dams also have large power capacity and are operated under lease from the government by private interests.

They' directly discharge water consumed by power operations into the respective pools. There is also evidence to the effect that there is an abundant supply of water from tributaries of the New River and Kanawha River below Radford to supply any loss or waste of water in the pools of the Kanawha caused by the operation of the locks or otherwise. The purpose of the navigation dams on the Kanawha is to maintain an approximately uniform level of water.

In these circumstances the district judge found that it was highly improbable that any operation of the Radford Dam would or could impair the navigability of the Kanawha and Ohio Rivers. There is still another factor to be considered in this connection, relating to the government’s project for the Bluestone Dam in the New River without locks, approximately 150 feet high. The dead storage will rise about 66 feet, with 49 additional feet of usable draft water, leaving 35 feet to be reserved for freshets and flood control.

The storage capacity is to be 245,000 acre-feet, about two and one-half times greater than the. Radford Dam (85 miles up-stream), and the Bluestone Dam is to have a maximum hydraulic capacity of about 11,000 cubic feet per second. The primary purpose of this dam is for flood control with incidental power production. It seems quite evident that this Bluestone flood control project will remove any possibility of any impairment of navigable capacity of the Kanawha from the operation of the Radford Dam if the latter were otherwise possible.

It will also be recalled that in his report of December 29, 1925 to the Power Commission, Gen.

Taylor, then Chief Engineer of the War Department, after reviewing the data upon the subject, said: “Therefore, so far as can be predicted from available data and records it would not be possible to operate the proposed project so as to adversely affect navigation on the Kanawha River under the existing project. “I, therefore, report that in my opinion New River in its present condition is not a navigable stream and that navigation on the Kanawha River will not be adversely affected by the proposed power development.” The Commission apparently rejected Gen.

Taylor’s opinion as to the effect on the Kanawha River, although it does not clearly appear what other evidence it had before it on the subject, except possibly the report as to the effect of waves from power dams on certain California rivers (which was determined to be inadmissible in the district court for lack of proof as to similarity of conditions).

On this and other evidence too detailed to elaborate here, the district judge found that there would be no reasonable likelihood of adverse effect on the navigability of the Kanawha or other navigable waters of the United States; and we find no sufficient reason in the case to conclude that he was wrong in this finding. On this issue the plaintiff had the burden of proof to establish its contention that the operation of the Radford Dam would affect the navigable capacity of down-stream navigable waters. The leading case on this point is United States v.

Rio Grande Dam & Irrigation Co., 174 U.S. 690, 19 S.Ct. 770, 777, 43 L.Ed. 1136. The suit there was to enjoin the defendant company from constructing a dam across the Rio Grande River in New Mexico at a point where the river was not navigable, but it was alleged the maintenance of the dam would impair the capacity of the down-stream river where it was navigable. The government’s case was based on

section 10 of the Rivers and Harbors Act of September 19, 1890, 26 Stat. 454, (later somewhat amended by the 1899 Act on which this present suit is based). The Supreme Court said: “Of course, when such proceedings are instituted, it becomes a question of fact whether the act sought to be enjoined is one which fairly and directly tends to obstruct (that is, interfere with or diminish) the navigable capacity of a stream. It does not follow that the courts would be justified in sustaining any proceeding by the Attorney General to restrain any appropriation of the upper waters of a navigable stream.

The question always is one of fact, whether such appropriation substantially interferes with the navigable capacity within the limits where navigation is a recognized fact.” The plaintiff was not entitled to the injunction in this case unless it established an existing or presently threatened impairment of navigable capacity of the Kanawha; and where the defendant in such a case evidently in good faith denies any intention to commit an injury, the plaintiff must show that the injury sought to be avoided by the injunction will be necessarily or practically certain, and not merely the probable, result of the acts whether intended or not.

Connecticut v. Massachusetts, 282 U.S. 660, 674, 51 S.Ct. 286, 75 L.Ed. 602; State of Missouri v. State of Illinois, 180 U.S. 208, 248, 21 S.Ct. 331, 45 L.Ed. 497; Blease v. Transit Co., 4 Cir., 50 F.2d 852, 856; Meyer v. Somerville Water Co., 82 N.J.Eq. 572, 89 A. 545; Pennsylvania Co. v. Sun Co., 290 Pa. 404, 413, 138 A. 909, 55 A.L.R. 873.

The plaintiff also contends' that even if there would be no impairment of the navigable capacity of the Kanawha, nevertheless it is entitled to the injunction because there will be an impairment of interstate navigation bétween Glenlyn on the New River in Virginia, and Hinton in West Virginia. We are not impressed by this contention. Glenlyn is about five miles upstream from the Virginia-West Virginia line. In 1912 it had a population of only 500. The railroad along the river reached Glenlyn in 1883.

There is no present navigation of the river between Glenlyn and Hinton and there has been none for probably 25 years. It is said that there was considerable keelboat navigation of the river between Glenlyn and Hinton in previous years; but we are disposed to believe from the evidence that this is an overstatement. There are serious obstacles to navigation on the river between Glenlyn and the state line, including Shumate’s Falls and Wylie’s Falls at or near the state line. Probably any substantial transportation on the river in earlier times was from Round Bottom, below these difficult rapids, to Hinton.

The federal improvement work never reached up-stream to Glenlyn but stopped four or five miles below it. A light draft steamer built at Hinton was unable to get upstream more than about 15 miles. In 1930 the District Engineer of the War Department reported that the New River was not navigable at Glenlyn.

In these circumstances, it would not be justifiable to issue an injunction to restrain an obstruction to the purely theoretical navigation of New River between Glenlyn and Hinton, especially where there is no satisfactory proof that the operation of the defendant’s dam will in fact impair even possibly existing present capacity for navigation, and where there is no likelihood of future navigable use of the river. Of course if the deiendant’s dam is so operated in the future as to impair navigation, if any at that point, it may well be proper then for the courts to intervene.

It is also again significant here that the government’s Bluestone Dam will destroy any possibility of navigation from Glenlyn to Hinton. There is also a contention by the plaintiff that the Radford Dam may in some way impair the efficiency of the Bluestone Dam for flood control, and thus operate prejudicially on navigation of the lower river. The district judge considered and rejected this contention as based on insufficient evidence, and we find no good reason to reach a contrary conclusion.

It would seem the Radford Dam would be a help rather than a hindrance in this respéct; and if not an injunction may later be appropriate. The effect of the Federal Power Act on the case. While nearly all of the evidence related to the two issues above discussed, the major part of the legal argument in this case has revolved around the proper construction and application of the Federal Water Power Act of 1920, and as amended in 1935, 16 U.S.C.A. § 791 et seq.

It is contended by general and special counsel for the Power Commission that even if New River at Radford is not navigable waters of the United States, and the operation of the dam will have no adverse effect on the navigable capacity of down-stream waters, nevertheless the defendant must be enjoined from constructing the dam because it has not obtained a license from the Power Commission.

It is argued that the Power Act is an exercise by Congress of a much wider jurisdiction over streams than was asserted by the Rivers and Harbors Acts of 1890, 26 Stat. 426, and 1899, 33 U.S.C.A. § 401 et seq.; and that in the Power Act Congress has given the Commission jurisdiction to prevent, except by its license granted on the conditions specified by the Commission, the erection of any bridge, dam or other structure on rivers and streams, whether navigable or not, where the interests of interstate commerce are concerned, whether they relate to navigation or not.

In connection with this view it is said in the briefs “Thus the primary purpose of the legislation was the control of water power development, not'of navigation”. This argument is based upon the language of

section 23 of the Act of 1920. But before examining this contention we notice two preliminary points based on the Act. In the first place; it is argued that in this proceeding thé findings of the Commission with respect to navigability and the effect of the dam on navigability, and on interstate commerce, are conclusive if supported by substantial evidence, which is asserted to be the case here.

It is not disputed that the case can be judicially considered de novo, but it is said that the ordinary rule that findings of an administrative tribunal must be accepted, if supported by substantial evidence, must control the decision here on the facts. In our view this contention is not applicable to the present case.

Section 23 does not provide for a “hearing” by the Commission when a declaration of intention to build a dam is filed, but only for an “investigation” by the Commission. Nor does the Act provide for any judicial review of the findings made. Nor is this case a statutory proceeding by .way of appeal from or review of the Commission’s action.

Assuming that the finding of the Commission is a relevant fact for the consideration of the court, and that it is entitled to careful and respectful consideration as the opinion of a body informed by experience, nevertheless it cannot properly be regarded as controlling judicial determination on the record in the case. Clearly the decision of the district court involved a constitutional question of the jurisdiction of the Commission in relation to the distribution of state and federal power, and of riparian property rights of the defendant.

This, we understand, is not disputed so far as the action of the district court was invoked under the Rivers and Harbors Act; and it seems equally clear that the same must be true with respect to any jurisdiction of the Commission in this case. In that view it is clear that the district judge was required to determine the question of fact de novo on the record made at the trial before him. Crowell v. Benson, 285 U.S. 22, 58, 59, 52 S.Ct. 285, 76 L.Ed. 598; St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 51, 56 S.Ct. 720, 80 L.Ed. 1033; Baltimore O. R. Co. v.

United States, 298 U.S. 349, 364, 56 S.Ct. 797, 80 L.Ed. 1209. It is also suggested that the defendant is estopped to question the findings of the Commission because it submitted itself to the action of the Commission in requesting a finding that the Commission was without jurisdiction and in applying for a minor-part license; but we do not think this view is tenable as the United States has in no way been prejudiced thereby, and the defendant throughout has clearly enough stated its .legal position to the effect that the Commission did not have jurisdiction. There can be no proper waiver of consti

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