The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1900-12-30
CASE EXACTLY LIKE
That of the Diversion of Ar
kansas River Waters.
RIVER CAN'T BE DIVERTED
So the United States Circuit
Court Decides.

Judge S. S. Ashbaugh was greatly
pleased yesterday to md in the latest
United States circuit court report a case
decided which exactly parallels the con
troversy over the waters of the Arkansas
river which Colorado now monopoIizes to
such greater and greater extent year by
year that Arkansas City is now desper-
ate in the matter Of power for its mills.
In this case the waters from river in
the state of New York flowed into the
state of Connecticut. and the waters
while in the state of New York was
/ sought to be appropriated by the City Of
New York. Two farmers living on the
bank Of the river in Connecticut brought
the suit against the City of New York
and the injunction was granted. perma-
/ nenty enjoining the City Of New York
from appropriating the waters to the IN
jury Of the lower riparian owners.
The opinion of the circuit court, which
shows clearly that Colorado will lose in
the courts if Kansas ever pushes its
| case, IS as follows:
facts of this case, as presented in the
bill in equity, are not controverted the
answer. Thte complainants, Pine and
Muller, are citizens and residents Of the
state Of Connecticut and each of them
owns in fee a separate tract of land in
that state, through which, or upon and
along which, the Byram river flows. This
river, which is, at the lands of the COM
plainants, a non-navigable stream, is
made up of two branches The east
branch is wholly in the state of Connec-
ticut The west and by far the most i'm
portant branch rises in Westminster coun-
ty, N Y, flows southeasterly for about
five miles in that state into Connecticut.
and thereafter unites with the eAst
branch at the farm of Muller, about four
miles from the New York boundary line
About a mile below his farm the united
stream forms the eastern boundary of
Pines farm for about 3,725 feet and there
after empties into Long Island Sound
Upon his land there is deposit of field
spar, which he manufactures, and he uses
the water of the river for the needs of
his farm house and steam mill. Muller's
farm has a frontage on both sides Of the
river Of 900 additional feet, and extends
on the west side Of the river 450 addition
al feet, making an entire frontage Of
2,290 feet. He uses the water of the river
for general farm use The bill in equity
alleged that the damage to each com
plainant by the act Of the defendant
would be above $500 Shortly before the
bill was brought, the defendant began to
build a dam across the west branch of
~,
Of New York about roo feet from the
Connecticut state line in order to divert
the water of that branch into the Ken
sico reservoir, which is a part Of the de-
PENDANTS extensive system of water sup
ply for the residents Of the City of New
York; and the dam has been completed
at an expense, without any of its ap-
purtenances, of about $4,000. BY private
arrangements the defendant settled with
the Connecticut mill proprietors on the
stream for the injury caused by this
dam to their 1owage rights, but has never
compensated the compliments or other
riparian owners for the injury to their
riparian rights. The answer admits that
the defendant intends to divert some or
all the water of the west branch Of the
river from its natural channel, and AYERS
that the diversion of the whole of #
would be Of little or no injury to the
riparian owners. The diversion Of the
water by the defendant is as appears by
the testimony of Mr. Birdsau, the chief
engineer Of the system for the water sup
ply of New York, 1900 600 gallons per day. /
The total average flow of the river at the
junction Of the two branches was 2f,00)-
000 gallons per day. The decrease Is, /
therefore, more than one fourth. Tesu- I
mony was offered by each party with re-
spect to the value Of the two properties, 1
and the amount of pecuniary damage IN /
actual consequence of the diversion Of the I
water. That there viii be an actual. /
continuing pecumary damage more than
nominal in amount is manifest. but
whether more or less than 5000, OF what
viii be the exact amount L did not un- /
dertake to find, because 1t was unneces- /
sary. In the absence of a plea to the /
jurisdiction. the allegation ia the bills in I
equity that the amount Of damage in (
each case exceeded S20.0, though denied /
by the answer even if not sustained by /
the proof. YVES sufficient to give the Or I
cult court Jurisdiction" Butchers and /
Drovers' Stock Yards company VS.. Louis /
vile and Nashville Railroad company 81 (
Fed. So; De Sobry VS.. Nicholson. 9 Wall T
420. Is L. Ed. 26S a number of unknown I
factors enter into an estimate of damage .
from a diversion Of water. such as the
probabilities of future years Of excessive +
drought the prospective uses to which +
the properties may be applied. and the /
prospective demands for other than agri- (
cultural uses. which cause the estimate I
of actual pecuuiary damage to be one of E
inaccuracy. The statutes of the state Of (
New York do not undertake TO give power /
to condemn land for public purposes +
which is situate in another state, and L
they undertake to confe- such power they /
would be ineffective Neither IS there a +
which Is situated in another state and If
city of New York TO exercise any rights !
Of eminent domain over land In Connect
cut.
The conclusions which must result from
the foregoing facts have bean ot.en clear
" stated 10y various courts. and by none
more clearly than by The courts ~ Conc
necticut and New York The principles
which undsrlie the case or which are app
plcable, are as follows:
l. The right Of riparian pr7p-et z
upon q navigable stream 10 The use of
TIE ordinary flow ~ water ~ the stream
as il has been accustomed 10 fow. and
not diminished by an unreasonable use
by a proprietor above him. sis not an
easement OF appurte1ance. b-t Is IN
separately annexed 10 tne SOIL and is
parcel of the land ITSELF.
2 The unauthcrized and uncoupensat-
81 permanent diversion hy a municipal