Gilpin observer., 1902-04-10
OVERRULE DEMURRER
KANSAS vs.. COLORADO SUIT.

in Irrigation Suit Brought, by Kan
sas-Action Of the Court Without
Prejudice Against colorado's De-
Tense
Washington, April S.-The United
States Supreme Court, in an opinion
delivered by Chief Justice Fuller yes
terday overruled the demurrer of the
state of Colorado in the case of the
state of Kansas VS.. the state OF Colo
rado. The case involves the right of
Colorado to appropriate for purposes
| OF irrigation the waters of the Arkan-
sas river, which Kansas sought by an
original action to restrain on the
ground that the stream flows through
Kansas and the people of the latter
state are injured by such appropria-
tion of water.
Colorado contested the jurisdiction
| OF the court in the case and filed II
demurrer. The chief justice said that
the case is one in which the court can
properly assume jurisdiction. He said
also that the action of the court in
overruling the demurrer was intended
to be without prejudice. but was taken
because the Importance of the case
was such that ii should not be decided
without full proof on the questions set
up in the allegations of damage made
by the state of Kansas.
On the point of jurisdiction the chief
justice said:
without subjecting the bill to mi
mute criticism, we think its averments
sufficient to present the question as
to the power of one state of the Union
to wholly deprive another of the ben
eft of water from ii river rising in the
former and, by nature, flowing into
and through the latter. and that. there
fore, this court, speaking broadly. has
Jurisdiction
Coming to the question of the de-
murrer, he said:
1.-The general rule is that the truth
of material and relevant matters set
forth with requisite precision. is ad-
mitted by demurrer, but in n case of
this magnitude. involving questions Of
so grave and far-reaching Importance,
1t does not seem to us wise to apply
that rule, and we must decline to do
So"
He then stated the averments of the
contention of the states of Kansas and
Colorado, concluding as follows:
Sitting as it We're as an interna-
tional as well as II domestic tribunal,
we apply federal law. state law and
international law, as the eXigencies OF
the particular case may demand, and
we are unwilling in this case to ppo-
ceed on the mere technical admissions
made by demurrer.
Nor do we regard II necessary.
whatever imperfections n close analy-
sis of the pending bill may disclose, TO
compel its amendment ut this stage OF
the litigation. We think the record
should show on proofs whether Colo
RADIO is herself actually threatening TO
wholly exhaust the flow of the Ar
kansas river in Kansas, whether what
is described in the bill as the under
flow Is u subterranean stream flowing
In n known and defined channel, and
not merely water percolating through
the strata below; whether certain per-
sons, firms and corporations in Colo
RADIO must be made parties thereto;
what lands in Kansas are actually sit
uated on the banks of the river. and
what either in Colorado or Kansas are
absolutely dependent on water there
from. the extent of the watershed or
the drainage area of the Arkansas
river; the possibilities of. the mainte-
nance of n sustained flow through the
control of flood waters: in short, the
circumstances, a variation In which
might induce a court to either grant.
modify or deny the relief sought or
any part thereof. In view of the in
tricate questions arising on the rec
ord, we are constrained to forbear pro-
ceedings until all the facts are before
us on the evidence"
There was no dissenting opinion.