The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-05-07


complained of, and for which no ade-
quate relief or remedy can be obtained
by a suit at law, affect the property OF
the conn pIainant in its corporate capac-
ity Two large and valuable tracts of
land described in the bill are and have
been for many years. owned and Occu-
pied by the state Of Kansas; and all
riparian rights incident or appertainIng
to these lands, at all times since the IL
tie thereto was acquired from the Uni
ted States are now vested in the COM
plainant. This suit is sought to be in
stituted, therefore, to protect the proper
ty of the state of Kansas. The COM
plainant asks from the court a protec-
tion of its property, on the same ground
and to the same extent as a corporation
or individual may ask it
1.-THE state of Kansas is a party to the
proposed suit in virtue of it's sovereign
and corporate capacity It seeks to pro-
tect the rights and property of its citl-
zens from wrongs and injuries against
which such citizens, neither individually
nor collectively, can claim protection in
any court. The wrongs and injuries
complained of in the bill directly affect
the valued rights and the vital interests
of 100, 600 citizens of the state of Kansas
The usefulness and value of 2,500000
acres of fertile land are being and are
threatened to be practically destroyed
The right of the public of the state Of
Kansas to the free and untrammeled use
of the waters of the Arkansas river in
that state for public purposes is taken
and threatened to be taken away, and
the public health is impaired and i'm
periled.
IF the proposed suit cannot be main
tanned by the state of Kansas in behalf
and for the protection of it's citizens
who are riparian owners in the valley of
the Arkansas river, there is no means
known to the law by which those citi-
zens can be protected against the
wrongs and injuries alleged in the hill
There is no forum in which their conf
plant can be heard or their grievances
redreSsed. The state of Colorado cannot
be brought to the bar of any court by
these injured -citizens; and unless the
state of Kansas in its sovereign capac-
ity. and Oh behalf and for the protection
of the interests of it's public and of these
citizens, is permitted to maintain this
suit, there is presented the strange an
Omaly of a large number of the citizens
of the state and a large and one of the
most valuable portions of its territory,
subjected to the wrongs and irreparable
injuries of another state without auth
ority or power to invoke the protection
fairs-power to infiict such injuries with
no corresponding remedial right-hnds
no sanction in the maxims Of equity or
law.
THE state of Kansas derives its rev.
enue from direct taxation of real and
personal property, and thus maintains
its gcVernm ent and its system of free
public schools The diversion of the
water as alleged, and the consequent
injury to the land and other property
in the Arkansas valley, has impaired
and will greatly impair and diminish
the revenues of the state, and cripple
it's school system, and thus the state,
in its corporate and sovereign capacity
is vitality affected"
The brief closes with citations, one
by the circuit court and the other by
Sfok ~
similar cases. One is the decision of
Judge Shipman last June in the case
between New York and Connecticut.
On the other side of the controversy
Attorney General Post takes up polit-
ical questions involved from the orig
inal cession of the land. In this peti-
tion is traced the history of the terri
tory from the time of the Louisiana
purchase and the organization of the
territory of Kansas in 1854. 1t is set
forth that by reason of prior settlement
and occupation, people living along that
part of the Arkansas river now en-
braced within the limits of the state of
Colorado, acquired rights to the water
of the river. The court is asked to ad-
judicate these rights without making
these residents of Colorado parties to
the bill. Other points in the motion
are:
The state of Kansas owns but
small part of the land in the Arkansas |
valley and that other owners are not |
navigable and greater riparian rights |
cannot be maintained. The state of
Kansas seeks to abrogate the obliga-
tionS of the United States toward the |
people of Colorado The bill seeks to |
enjoin the legislation of congress enact |
ed to promote the settlement and devel- !
opment of United States lands in Colo |
radO The decision asked for would |
abrogate state legislation of Kansas in !
regard to irrigation. A favorable de- |
cision on the bill would be to enjoin |
Colorado from exercising her functions |
of statehood. State sovereignty can |
not be enforced to protect riparian |
rights. The brief says:
Every arid land state, including the /
complainant. having in view its own |
necessities, has passed laws abrOgatlng /
the common law doctrine of riparian /
rights This has been expressly ap- I
proved by this court in the case of the |
United States against the Rio Grande |
Irrigation company. The court has ex- /
which provides that every riparian 1
owner is entitled to the continuous nat i
ural flow of the stream and has stated /
that every state has the power within |
it's dominion to change the rule and to /
permit the appropriation of the flowing |
waters for such purpose as it deems |
wise.
For at least S5 years these rights have |
been enjoyed in Colorado and property |
of enormous value has been acquired J
Now comes an application for the decree 1
of the court which, in effect, shall de- 1
clare that people mot before this court) |
must forego the right to their usual pur
suits and usual business. and permit their
property to become absolutely destroyed /
and the lands that have been cultivated !
for years to return to their desert char
acter.
''The people refuse to obey; the state
can not coerce the settlers without a null I
ihcat1on of its own laws. and in mat 1
ter where these settlers have never been /
heard, or had their rights adjudjcated, [
being enjoined by this court while its I
settlers are in the position of holding I'll 4
tie in compliance with the acts of con /
gress to the waters. which the state for
bids them, under decree of this court, to
use Now, what power can this court ex-
ercise to enforce it's decree? Can it in I
woke the military poWer2 Can It invoke I
the power of cOngress2 To do this latter I
would be for congress to nullify it's own /
legislation as expressed in the statutes /
from 1866 to the present time.
The Colorado documents are the result /
of much research by the attorney general /
and his assistants Caesar A Roberts, 1