The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-05-07
THEIR War PAINT
Kansas and Colorado Ready For
Legal Battle.
Arkansas River the Prize to Be
Fought For.
COLORA ADO'S SIDE.
Claim That Wrong Kind of Suit
Was Commenced.
Attorney General Godard's Ba-
sis of Contention.

Kansas and Colorado are ready to be-
gin the big legal battle in the United
States supreme court, known as the Ar
kansas river irrigation suit, for carry
ing on which the last legislature appro-
priated $4,000. Attorney General GODDARD
and Assistant Attorney General West
have prepared a voluminous brief on the
motion to file a bill against the state of
Colorado. Judge West will leave on
Thursday to file the motion in the Uni
ted States supreme court on Saturday.
Colorado has made extensive prepara-
tions to combat the suit also. Attorney
General c. c. Post is here at the Hotel
Throop today, on his way to Washing
ton. He proposes to file a brief against
the plaintiffs motion at once, If allow
ed. He has had all the big lawyers in
Colorado in consultation with him III
preparing his answer.
Mr.. Post filed his briefs in the attor-
ney generals Office here this morning
and had long consultation with Judge
West. Colorado's arguments would stun
an ordinary mortal. not used to the
ways of the legal froternity. They seem
to almost make out that Kansas has no
right to exist. or its people breathe 1t
makes declarations that Kansas claims
are against principles of common law
generally and are abrogations of its own
statutes. This construction is declared
with regard to the act of 1891
It lays stress upon the points of issues
arising between states, also and raises
the question of legal redress upon these
points as contemplated in this action.
The brief of Attorney General GODDARD
and Judge West presents these argu-
ments:
'"The question of the complainants
right to the relief it seeks in this suit
is to be determined entirely by the rules
of the common law, irrespective Of any
customs, regulations or laws of the
state of Colorado in derOgation thereof.
The rules and doctrines of the common
law respecting the rights and remedies
of riparian owners have never been
abrogated or in any manner modified by
the state of Kansas or its legislat ature. The
common, law has been in force in both
Kansas and Colorado since long prior to
their admission into the union.
'"The state of Colorado has never de-
rived from the United States nor from
any other source a right of exclusive or
unreasonable appropriation of the wa
ters of the Arkansas river for any pur-
pose, as against the state of Kansas or
its citizens, as riparian proprietors. AS
a general proposition, every riparian
proprietor has a. natural and equal right
to the use of the water in the stream ad-
jacent to his land, without diminution
or alteration
"By the common law, the right of the
riparian proprietor to the flow of the
stream is inseparably annexed to the
soil and passes with it, not as an ease
ment and appurtenance but as part and
parcel of it. Use does not create the
right, and disuse cannot destroy or sus-
pend it.
'sWhere natural conditions are such
that the riparian proprietor is permitted
to make use of the stream for the pur-
pose of irrigation, and thus by that use
to divert a portion of it, it is held that
such diversion, under all circumstances,
must be a reasonable use of the stream.
and that the surplus of the water thus
used must be returned into its natural
channel.
s'If it be conceded, therefore, that by
the common law the state of Colo
radO or any Of its citizens is authorized
to use the waters of the Arkansas river
for irrigation purposes, such use must
be at all times subject to conditions that
it is reasonable and not prejudicial to
the rights of lower riparian proprietors;
and if. as alleged in the bill, it is the
purpose of acts now contemplated by
the state of Colorado or it is the present !
effect of acts already done under license
and authority granted by that state, to /
appropriate all or an unreasonable por- !
ton of the waters of the Arkansas river. |
or if its tributaries in Colorado, to the |
detriment and in violation of the rights |
Of the state of Kansas or of its citizens !
as lower rip9 -ian owners upon said /
stream it is clear that the complainant /
may invoke the protection of the COM
Of its rights.
'sAll of the lands situate in the valley |
Of the Arkansas river or abutt1ng upon /
that stream. as mentioned in the bill, |
were formerly a part Of the public do 1
main of the United States; and when |
the United States ceased to be the owner /
Of those lands, and the title thereto 1
passed to settlers. grantees, and pur- |
chasers, the riparian rights of the com /
mon law passed Herewith to such set |
-lers, grantees and purchasers as a ma
.ural incident to and one of the elements
Of their title and relating back 4
to the date of settlement or
purchase The riparian rights thus ac- |
1uired by such settlers, grantees. and /
purchasers, whether still held by them 1
Or passed to subsequent grantees, can be /
Destroyed or impaired only in the in /
terest of the general public, upon full /
compensation, and in accordance with /
law.
any authority conferred by an act of /
congress can be claimed to have clothed I
the state of Colorado with any right or /
justification to do the acts and things /
of in the bill The riparian |
lights appertaining to the Kansas lands /
n the Arkansas valley, became vested \
n the state of Kansas and in the pri- |
yate owners and occupants of said lands /
prior to the appropriation by the state I
# Colorado of the waters of the Arkan- \
orior to the commission Of any of the |
wrongs complained Of in the bill. No /
prior right therefore, to the appropria- /
ion or use of said waters for irrigation 4
II other purposes mas accrued 70 the
;tate of Colorado which can be claimed
o warrant or justify either the wrongs
t now threatens or those already done /
IS charged in the bill.
ssThe bill alleges and shows that the
state of Kansas has a direct and vital |