(dissenting). Plaintiffs in error are the owners and lessees of land located in township 23 north, range 3 east I.M., Pawnee county, Oklahoma, particularly' described as lots 6 and 7, sec. 23, and lot 8 S.W. 1-4 sec. 24 within the township and range. Plaintiffs’ lands, bordering on the south bank of the Arkansas river, formed a part of the public domain acquired as result of the Louisiana Purchase.
In 1828 the lands, by the Federal government, were conveyed to the Cherokee Nation and for more than 30 years the Cherokee Nation exercised over the entire area a complete sovereignty. In 1866 the Cherokee Nation consented that friendly Indians might be settled upon their domain. In 1872, by conveyance from the Cherokee Na*143tion to the Osage Tribe, confirmed by Act of Congress, title to the lands on the north of the river, opposite the lands here involved and extending to “the north line of the Creek country and the main channel of the Arkansas River” passed to the Osage Tribe.
In 1883 the Cherokee Nation conveyed to the Federal government, in trust for the use of the Otoe and Mis-souria Tribes of Indians, lands “lying and being on the right bank of the Arkansas River”.
The lands so conveyed included the lands in controversy, which were subsequently allotted to individual Otoe and Missouria Indians. The bed of the Arkansas river, extending from the thread of the stream southward, was not granted or allotted to either of the tribes or to any person.
The right of dominion and control over the whole of the river bed and, except as to that part conveyed to the Osage Indians under express grant, remained in the Cherokee Nation until 1891 when, by treaty, the Cherokee Nation relinquished to the Federal government its right as to a part of the lands embraced within the Cherokee Outlet.
As the Cherokee Nation’s right ex-' tended to and included dominion and control over the segment of the river bed here involved, it is clear that by the relinquishment, dominion and control again vested in the Federal government.
The exact issue in the cases at bar is whether defendant owners and lessees of adjacent land may extend their claims of ownership to the bed of the river and possess a vested right such as may not be impaired by act or judgment within the power and authority of the State of Oklahoma. State v. Nolegs, 40 Okla. 479, 139 P. 943; Title 64 O.S. 1941 §290; S.L. 1919, ch. 206, p. 293, §1.
Defendants contend that the Arkansas river adjacent to the lands is not, and never has been, navigable; that nonnavigability of the river was implied by the grant under which the Osage Tribe of Indians acquired title to a portion of the river bed; that at the time the land adjacent to the river was acquired by defendants their rights as riparian owners extended to the main channel and bed of the river under an existing rule of law governing non-navigable rivers whereby an adjacent owner’s right extended to the thread of nonnavigable streams; that defendants’ rights became vested and were not subject to change.
Defendants’ case is dependent upon nonnavigability of the river. That matter was settled once and for all, throughout the entire course of the river within the State of Kansas, much nearer to the source than its course in Oklahoma, by the process of judicial notice as espoused by the jurist Brewer. The Supreme Court of Kansas took notice of the river’s navigability. Wood v. Fowler (1882) 26 Kan. 682, 40 Am. Rep. 330; Hurst v. Dana, 86 Kan. 947, 122 P. 1041. The State of Oklahoma followed Kansas in adopting the rule of law. The rule of law “displaces evidence”, since it stands for the “same thing”. 20 Am. Jur. 47. It avoids variability in facts and establishes uniformity, an objective in American jurisprudence. The circumstances in Kansas were the same. If within the State of Oklahoma, as in Kansas, the rule of law prevails, defendants’ claims to the river bed, not arising by express grant but dependent wholly upon nonnaviga-bility in fact, which, in view of the rule of láw may not be proved, fail and defendants’ claims are excluded by the paramount sovereign right. Shapleigh v. Mier, 299 U.S. 468, 81 L. Ed. 355, 113 A.L.R. 253.
Brewer-Elliott O. & G. Co. v. United States, 260 U.S. 77, 67 L. Ed. 140, Oklahoma v. Texas, 258 U.S. 574, 66 L. Ed. 773; United States v. Hayes (C.C.A. 8) 20 Fed. 2d 873, are cited in support of defendants’ contention that where the stream is in fact nonnavigable a grant to adjacent land conveys to grantee *144such a vested right extended to the thread of the stream that it is not subject to a changed rule of law. These cases do not support defendants’ case.
In Brewer-Elliott v. United States and Oklahoma v. Texas, supra, the issue was whether the United States could, by express grant, divest itself of title to navigable streams and vest such rights in a grantee that they were not affected by subsequent state action.
In Brewer-Elliott v. United States, involving the express grant to the Osage Tribe, approved by Act of Congress, the Supreme Court of the United States said that if the Arkansas river were navigable the issue then would be whether the United States, as an exclusive sovereign, could for any purpose divest itself of dominion and control over navigable rivers, and if it could so vest title to navigable rivers to accomplish great exigencies in government, the question then would be whether the express grant by which the Osages acquired a portion of the river bed was within that purpose. But a determination of the issues of law so stated was unnecessary because the trial court had found as a fact that the river, at the particular point, was non-navigable, and there was some evidence to support the trial court’s finding of fact.
In Brewer-Elliott v. United States, the Supreme Court of the United States recognized right of the state, where no express grant had been made to the bed of the stream, to define and restrict riparian rights. The court said:
“In government patents containing no words showing purpose to define riparian rights, the intention to abide the state law is inferred. Mr. Justice Bradley, speaking for the court in Hardin v. Jordan, 140 U.S. 371, 384, 35 L. Ed. 428, 434, 11 Sup. Ct. 808, said:
“ ‘In our judgment, the grants of the government for lands, bounded on streams and other waters without any reservation or restriction of terms, are to be construed as to their effect according to the law of the State in which the lands lie.”
“Some states have sought to retain title to the beds of streams by recognizing them as navigable when they are not actually so. It seems to be a convenient method of preserving their control. No one can object to it unless it is sought thereby to conclude one whose right to the bed of the river, granted and vesting before statehood, depends for its validity on nonnavigability of the stream in fact. In such a case, navigability vel non is not a local question. In Wear v. Kansas, 245 U.S. 154, 62 L. Ed. 214, 38 Sup. Ct. Rep. 55, Ann. Cas. 1918B, 586, upon which the appellants rely, the patent of the United States under which Wear derived title was a grant, made before statehood, to land bordering on the Kansas River, without restriction, reservation, or expansion. The state tribunal took judicial notice of the navigability of the river, refused to hear evidence thereon, and held that the patent to land on the navigable stream did not convey the bed of the river. The United States, by its unrestricted patent, was properly taken to have assented to its construction according to local law. Whether the local law worked its purpose by conclusively determining the navigability of the stream, without regard to the fact, or by expressly denying a riparian title to the bed of a nonnavigable stream, was immaterial. In either view the result there would have been the same.”
In Oklahoma v. Texas, supra, the Supreme Court of the United States held where the Federal government had conveyed lands north of the middle of the main channel of Red river, thus including by express grant a part of the river bed, the fact of navigability vel non was a justiciable issue. Again, it was found from the facts in evidence that the river was nonnavigable. Certainly title to that part of the bed of the river which had been conveyed by express grant of the Federal government did not, at statehood vest in the State of Oklahoma. The State of Oklahoma was not successor in interest to the United States because the interest of the United States had, prior to statehood, been divested.
*145In United States v. Hayes, supra, there was involved a grant by the Federal government to the Five Civilized Tribes, inclusive of a grant to the Creeks. The grant expressly extended to a portion of the Arkansas and Cim-arron rivers.
The lands were later allotted to individual Indians. The individual allotments to Creek Indians described land adjoining the river bed. It was held, by virtue of the source of the title and the Federal policy to abolish tribal governments, that riparian rights extended to include the river bed. There was no contention that title to the river bed should remain vested in the abolished government of the tribes. The title could not be suspended. The issue of navigability was said to have been settled in Brewer - Elliott v. United States, supra, and that the intent of Congress, evidenced by its Acts, and the agreements was to allot all the lands of the tribe necessarily including the river bed.
But neither the grant involved in the case at bar, from the Cherokee Nation to the Federal government in trust for the Otoe and Missouria Tribes, nor the patents issued by the Federal government to members of the tribes, contained any language to indicate an intention to convey any portion of the river bed. Whatever riparian rights obtained from the adjacent land granted is necessarily dependent upon a rule of law or a question of fact by which navigability may now be determined. The river bed, not being within the express terms of the grants, neither navigability nor nonnavigability in fact at the particular time was fixed. If neither, as a fact, were fixed, defendants’ rights now claimed were not vested. It is believed the navigability is dependent upon such a rule of law or question of fact as may be selected by the state. Brewer-Elliott v. United States, supra. Judicial notice is a well intrenched part of the judicial system; it is an exception to the presumption that when a case is presented at the bar for trial, the court or jury are uninformed concerning the facts involved or that it is incumbent upon plaintiff to establish' by evidence the facts plead. 20 Am. Jur. §16, Evidence.
In Wear v. Kansas, supra, the Supreme Court of the United States considered a conveyance by the Federal government at a time prior to statehood in Kansas; the land adjoined the Kansas river; the grant did not expressly include any portion of the river bed. After statehood, the Supreme Court of Kansas, Wood v. Fowler, 16 Kan. 682, 40 Am. Rep. 330, and Hurst v. Dana, supra, established a rule of law applicable in all such cases and exclusive of facts as might vary in each case. The court took judicial notice that the Kansas and Arkansas rivers were, throughout their entire courses in Kansas, navigable. The Supreme Court of Kansas, with reason, observed the river was, a hundred years ago, navigable, i.e., used in commerce under the times and conditions of the people, and having been navigable in fact, lack of navigation at any subsequent time did. not negative the river’s navigability. Thus, in avoidance of a multiplicity of divergent cases, dependent upon facts, as might be proved, the courts of Kansas settled the issue once and for all by taking judicial notice of the fact.
In Wear’s appeal to the Supreme^ Court of the United States, as to his. contention that navigability in fact was, the test to be applied by state courts, it was held:
. “ ••• if a state court takes upon itself to know without evidence whether the principal river of the state is navigable . . . we certainly cannot pronounce it error. In this aspect it is a question of state law. The fact is of a kind that should be established once for all, not perpetually retried.”
It may be observed that in Kansas, nearer the source of the river, it is, by state law, approved federally, navigable. The river was agreed to be navigable within Oklahoma, Vickery v. Yahola Sand & Gravel Co., 158 Okla. *146120, 12 P. 2d 881. Navigability is not synonymous with present navigation, but a river is navigable when it is susceptible of being used in its ordinary condition as a highway for commerce. 10 Wall. 557; Webster’s New Int. Dictionary.
No man has a vested right in a rule of law. In Oklahoma, a constitutional limitation was required to vest a right .in a rule of law after an action involving it was commenced, sec. 52, art. 5, Const. No state of the Union is superior to any other state, but at the advent of statehood, Oklahoma became vested with the same character of sovereignty theretofore possessed by all other states. An incident of sovereignty was authority and power, where rights were not by express grants vested, to establish rules of evidence applicable to all property within boundaries of the state and to make effective such rules of evidence.
Whether a stream should be declared navigable under the common law of England, i.e., to the extent that the tide ebbs, and flows within it, as in the case of the Mississippi river along the Illinois shore where it is nonnavigable, or dependent upon some other fact, i.e., commercial navigation as in the case of the Mississippi river from the thread of the stream off the Illinois shore toward the shore of Iowa where it is navigable, seems to be, as applied to rivers within a state, a matter of state law. Donnelly v. United States, 228 U.S. 243, 57 L. Ed. 820, 33 Sup. Ct. 449, Anno. Cas. 1913E, 710.
This state has established once and for all such a rule which the trial court followed. State v. Nolegs, supra. Had the trial court not followed the rule promulgated, it would have been subject to this court’s superintending control and to correction on appeal. No right or title to the bed of the Arkansas river vested in defendants prior to the trial court’s determination against them. Their right was dependant upon a claim; the claim was that the river was in fact nonnavigable. Defendants had no choice of means by which their right would be established or denied. They were not divested of any vested right by the mode of determination.
In Packer v. Bird, 137 U.S. 661, 34 L. Ed. 819, the Supreme Court said:
“The courts of the United States will construe the grants of the general government without reference to the rules of construction adopted by the States for their grants; but whatever incidents or rights attach to the ownership of property conveyed by the government will be determined by the States, subject to the condition that their rules do not impair the efficacy of the grants or the use and enjoyment of the property by the grantee. As an incident of such ownership the rights of the riparian owner, where the waters are above the influence of the tide, will be limited according to the law of the State, either to low or high water mark, or will extend to the middle of the stream.”
If the rule there stated is followed, a decision favorable to the state seems impelled.
In Oklahoma v. Texas, supra, there had been no determination of the decisive factor by the State of Oklahoma in decision to which the state was a party, nor was there in existence on the part of the state a legislative act curtailing riparian rights extended to land not granted or devised which formed the beds of streams. 64 O.S. 1941 §290. Neither the State of Oklahoma nor the United States is bound by decision in private litigation, notwithstanding that title to unclaimed land acquired by the state from the United States may be effectively asserted by action of the state.
State v. Nolegs, supra, was recognized as sound in principle by the highest Federal court in Brewer-Elliott v. United States, supra; that court’s judgment was consistent with its affirmance of the rule in Kansas, applicable to the same river.
The Arkansas river’s navigability, as determined by the state, and as a matter *147of law, does not disturb rights vested by the express grant of the Federal government.
Thus, whether the inference was to be drawn that the grant to the Osages extended to the main channel of the river because the river was. nonnav-igable in 1872, or because under the Federal policy their existing title to navigable streams could be granted, seems to have very little to do with riparian rights of lands not granted.
Except in United States v. Champlin, 156 Fed. 2d 769, in no case to which attention is called has the Federal government denied the state’s power and authority to limit riparian rights to the bed of streams within boundaries of the state.
Vickery v. Yahola Sand & Gravel Co., supra, is cited to show that no longer is the rule stated in State v. Nolegs the law in Oklahoma. The Vick-ery case concerned the bed of the Arkansas river at a point below the confluence of the Grand river where the Arkansas was admittedly navigable in fact and in law. In that case the court construed a Federal grant to the Cherokee Nation and was impelled to apply the fact of existing navigation as the test of navigability.
In the cases at bar this court does not have before it an express grant to the river bed. Defendants’ claims to the river bed rest upon nonnaviga-bility of the river. Navigability is not dependent upon the fact of navigation at any particular place or at any particular time. Evidence of the fact is foreclosed by the rule of law.
In the Vickery case we said “the same question was involved in United States v. Brewer-Elliott O. & G. Co., . . . wherein the Federal court refused to follow the Nolegs case,” but we took pains to show the reason was that an express grant to a portion of the river bed was involved and that only under such circumstances could the state rule be avoided to sustain rights vested by the terms of an express grant.
In City of Tulsa v. Com’rs of the Land Office, 187 Okla. 82, 101 P. 2d 246, and City of Tulsa v. Peacock, 181 Okla. 383, 74 P. 2d 359, this court assumed that the Arkansas river was navigable and that except for specific grants the state owned the bed of the river.
While it is true that the Federal courts have declined to follow the rule of the Nolegs case, that the Arkansas river is navigable throughout its course in Oklahoma, its refusal to do so, except for United States v. Champlin, has been limited to specific and express grants to the river bed. Other than as applied to such grants, the rule of the Nolegs case prevails to govern, and where a state court properly takes judicial notice of a fact, evidence is not admissible to prove the contrary.
There are fundamental issues of state rights involved. These were once thought to have been settled:
“Subject to the paramount authority of Congress to control navigation so far as may be necessary for the regulation of commerce among the states and with foreign nations, each state has authority to establish for itself such rules of property as it may deem expedient in respect of the ownership of the lands forming the beds and banks of navigable waters within its borders; and the ownership of such lands, as between the state and riparian owners, is to be determined according to the local law of the state in which they are situated.” 45 C.J. 537; Arkansas v. Tennessee, 246 U.S. 158, 62 L. Ed. 638; United States v. Cress, 243 U.S. 316, 61 L. Ed. 746; Fox River Paper Co. v. Wisconsin R. Commn., 274 U.S. 651, 71 L. Ed. 1279; United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 57 L. Ed. 1063; McGilvra v. Ross, 215 U.S. 70, 54 L. Ed. 95; Shively v. Bowlby, 152 U.S. 1, 38 L. Ed. 331; Barney v. Keokuk, 94 U.S. 324, 24 L. Ed. 224.”
The rule above stated prevails in New York, Iowa, Idaho, Kansas, Minnesota, Ohio, and Oregon.
Wood v. Fowler, supra, involving title to the bed of the Kansas river, and *148Hurst v. Dana, supra, involving title to the bed of the Arkansas river, follow the general rule that:
“Courts take judicial notice of the navigability of streams constituting great national highways of commerce, as well as the navigability or nonnavigability of smaller streams within the jurisdiction.” 31 C.J.S. §33.
In Grand River Dam Authority v. Going, 29 Fed. Supp. 316, the Federal court took judicial notice of the navigability of the Arkansas river in a part of its course through Oklahoma and throughout its course in the State of Arkansas. See, also, Shore v. Shell Pet. Corp., 60 Fed. 2d 1, certiorari denied 287 U.S. 656; Shore v. Shell Pet. Corp., 55 Fed. 2d 696; Jackson-Walker Coal & Material Co. v. Hodges, 283 Fed. 457. Thus there is navigability of the Arkansas river above the Kansas line and from the west line of Arkansas to the mouth of Grand river near Fort Gibson, Okla.
That judicial notice is a proper mode to determine once for all navigability vel non is well settled. United States v. Griffin, 58 F. 2d 674; Sikes v. Moline Consumers’ Co., 293 Ill. 112, 127 N. E. 342; Bohm v. Gerdes, 309 Ill. App. 206, 32 N.E. 2d 1000; McClain v. Kansas City Bridge Co. (Mo. App.) 83 S.W. 2d 132; Brownsville & Matamoros Municipal Bridge Co. v. Gateway Bridge Co. (Tex. Civ. App.) 2 S.W. 2d 1012; Continental Land Co. v. United States, 88 F. 2d 104; Harris v. Central Nebraska Public Power & Irrigation Dist., 29 F. Supp. 425.
Also, such judicial notice as a method extends to smaller streams. State of Arizona v. State of California, 283 U.S. 423, 75 L. Ed. 1154; Alabama Power Co. v. Gulf Power Co., 283 F. 606; Hill v. McClintock, 175 Ark. 1059, 1 S.W. 2d 564; Carlton, for Use of Franklin Co. v. Constitution Indemnity Co., 117 Fla. 143, 157 So. 431; Day v. City of St. Augustine, 104 Fla. 261, 139 So. 880; State ex rel. Bd. of Com’rs of Atchafalaya Basin Levee Dist. v. Capdeville, 146 La. 94, 83 So. 421; Town of Napoleonville v. Boudeaux, (La. App.) 142 So. 874; Brown v. Aetna Casualty & Surety Co. (Tex. Civ. App.) 122 S.W. 2d 261; Hobart-Lee Tie Co. v. Grabner, 206 Mo. App. 96, 219 S.W. 975.
In the latter case it was said:
“ . . . But where the court must, as we are bound to do, take judicial notice of the navigable streams of Missouri, when used in the broad sense, where the bed of the river is retained in the public and not deeded to the adjoining landowners, an admission by both parties that such a stream was navigable would not and could not bind the courts in determining the issues in the case.”
In a case following Hurst v. Dana, supra, and Wood v. Fowler, supra, the Supreme Court of the United States has said:
“ ... if a state court takes upon itself to know without evidence whether the principal river of the state is navigable at the capital of the state, we certainly cannot pronounce it error. In this aspect it is a question of state law.”
Wear d/b/a Wear Sand Co. and F. D. Fowler v. State of Kansas ex rel. Brewster, Attorney General, 245 U.S. 154, 62 L. Ed. 214. There, the issue of navigability of the Kansas river was under consideration; the Supreme Court reaffirmed application of the rule.
The decision in the Wear case firmly fixed the doctrine that the issue is one for state law and that judicial notice is proper so that “The fact . . . should be established once for all, not perpetually retried”.
If the power and authority to take judicial notice of the navigability of a stream within its borders exist in Kansas and in other states, so that ownership to the bed of streams may thereby be determined, the same power and authority exist in Oklahoma. Otherwise, the State of Oklahoma was not admitted into the Union upon an equality with other states but by reason of a Constitution, federally imposed, de*149terminative of title to its river beds, it occupies an inferior status.
In Coyle v. Smith, Secretary of State of Oklahoma, 221 U.S. 559, 55 L. Ed. 853, the authority of the State of Oklahoma to remove its capital was involved. It was then thought that the new state was admitted into the Union with all powers peculiar to a divided sovereign. This state then, as did the original states, had jurisdiction in matters of local law. Power and authority were not, and could not be, by congres-sionally expressed limitation (as to removal of the capital) diminished or impaired. By that monumental decision in confirmation of state rights, shortly rendered after statehood, the Supreme Court of the United States determined that equality of states within the Union existed as a fundamental principle of the general government. Citizenship and rights pertaining were not, as within the late German empire, withheld or graded.
Under the rule of equality and doctrine of judicial notice adopted within this jurisdiction, following the precedent of Kansas, navigability of the Arkansas river may not exist within the State of Kansas, to be nonexistent within the State of Oklahoma — a for-tiori as applied to the same river.
That the state owns the bed of navigable streams, subject to certain powers reserved to the Federal government under the Constitution, is beyond question. 45 C.J. 537, supra. The source of that title goes farther back than 1907 when Oklahoma was admitted to the Union. In St. Clair County v. Lovingston (Wall.) 23 L. Ed. 59, the unchangeable historical fact was noted:
“By the American Revolution the people of each State, in their sovereign character, acquired the absolute right to all their navigable waters and the soil under them. Martin v. Waddell, 16 Pet. 367; Russell v. Jersey Co., 15 How. 426. The shores of navigable waters and the soil under them were not granted by the Constitution to the United States, but were reserved to the States respectively. And new States have the same rights of sovereignty and jurisdiction over this subject as the original ones.”
The Supreme Court of the United States so holds: Pollard v. Hagan, 11 L. Ed. 565; Shively v. Bowlby, 38 L. Ed. 331.
In Martin et al. v. Lessee of Waddell, 16 Pet. 367, 10 L. Ed. 997, the historical fact was judicially fixed:
“ . . . when the Revolution took place the people of each State became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government.”
This common right inured to the new states admitted to the Union. Follard v. Hagan, 11 L. Ed. 565. Alabama, upon admission, succeeded to all rights of sovereignty possessed by Georgia at the date of the cession. These rights were excepted only insofar as diminished by the public lands remaining in the possession and under the control of the United States. Alabama became entitled to the soil under navigable waters, the same as original states; nothing remained to the United States but the public lands. The public lands did not include lands below high-water marks in navigable streams.
The rule was clearly recognized in Oklahoma v. Texas, 66 L. Ed. 771. There the title to a segment of the bed of Red river was in dispute between the United States, the State of Oklahoma, the State of Texas, and owners of the adjacent uplands. Therein (after stating the basis of the claim of the State of Oklahoma as to the navigability of the river throughout its course in the state and that therefore “on admission of the state into the Union on November 16, 1907, the title to the river bed passed from the United States to the State, in virtue of the constitutional rule of equality among the states, whereby each new state becomes, as *150was each of the original states, the owner of the soil underlying the navigable waters within its borders”) the court said: “If that section of the river be navigable, its bed undoubtedly became the property of the state under that rule.”
“ . . . And the territories acquired by Congress, whether by deed of cession from the original states, or by treaty with a foreign country, are held with the object, as soon as their population and condition justify it, of being admitted into the Union as states, upon an equal footing with the original states in all respects; and the title and dominion of the tide waters and the lands under them are held by the United States for the benefit of the whole people, and, as this court has often said, in cases above cited, ‘in trust for the future states’.” Shively v. Bowlby, 38 L. Ed. 331.
It thus appears that the following rules of law were once established:
(1) The question of ownership of the beds of navigable rivers is determinable under the law of the state wherein the river is located;
(2) Courts may and should take judicial notice of the navigability or non-navigability of rivers within their respective jurisdictions;
(3) This authority within the courts is common to all the states. This authority and power may not be denied one state and allowed others.
(4) After the American Revolution, the people of the original thirteen states became themselves sovereign. In that character, they held, and now hold, the soils under navigable streams, subject only to the rights granted the general government by the Constitution of the United States.
The judgment of the trial court is in conformity with the foregoing rules, and while the judgment appealed is not essentially different in legal aspects from those involved in Champlin v. United States, as decided adversely by the United States Circuit Court of Appeals and affirmed by the Supreme Court of the United States, we think these decisions are erroneous in this, to wit:
(1) ■ Originally the Federal courts avoided the real issue involved by resort to the fact of navigability which, according to Federal view, should be settled once and for all in law under the doctrine of judicial notice;
(2) The Federal courts either erred in Wear v. Kansas, supra, or they err now.
In the Federal courts at the present time labor in error, the courts of the state need not perpetuate the error to the particular state’s disadvantage. The Federal courts should be the judge of their own error, but if there is failure so to do, the error need not be perpetual since federally the courts are limited in the exercise of jurisdiction to such exceptions and under such regulations as the Congress may from time to time declare. That erroneous Federal decisions have been recalled is attested by history relating to the Dredd Scott decision as to slavery, income tax decisions, child labor, and the like.
To indulge the error of the Federal courts in relation to the Arkansas river, in my opinion, is to destroy the rule of law existing within this state and stated in the Nolegs case, supra. It is to defeat the act of the Legislature of Oklahoma, supra, which had for its purpose the placing of dominion and control of the bed of the Arkansas river throughout its course, and all other rivers two chains or more in width, within this jurisdiction, in the Commissioners of the Land Office, and avoid Federal and state co-operation under which the state is bound to furnish land and right of way for dams and lakes to be devoted to flood control and the protection of lives and property of our citizenship as well as furnishing of energy to afford rural electrification and the manufacture of munitions requisite for the national defense.
*151I am persuaded that Commissioners of the Land Office should not be divested of that with which they were invested in trust for the education of people in this democratic state, and I think an affirmative decision essential for the safety of the state as it now exists and as it should in future exist for unborn generations. An adverse decision, in my opinion, will constitute a gift of that which belongs to all in esse. It will be a grant of the birthright of the future citizenship.
I respectfully dissent.