The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1902-02-02
Briefs in the Arkansas River
Irrigation Case Have Been
Filed.
S AN WITNESSING HISTORY
Of the Arkansas Valley for
the Past Half Century.


the United States supreme court and i
viii come up for argument on February
"a. The brief was made by Attornes
General GODDARD. assisted BY S. S. Ash
| baugh, OF this city, and Eugene F. Ware
of Topeka.
Judge Ashbaugh was seen yesterday by
I z reporter for the Eagle and talked with
him about the matter. and was shown Z
copy OF the brief.
! The book is a comprehensive work, not
only in point OF law. but Of history. as Il
| tells a great deal Of the acts that made
! the Arkansas valley a great section OF
country. This information was gained
through the work OF a committee ap-
pointed at a meeting of the Arkansas
Valley Protective association held IN this
city last fan. After an exhaustive dis
cussion Of the matter this committee was
/ appointed to go among the old settlers
along the river and get data from these
PEOPLE that might be useful in arguing
the case before the supreme court This
committee acted under the Instruction Of
! the attorney general and Judge Ashbaugh
and through their efforts has been preDar-
ed an exhaustive history OF the Arkansas
valley. and one that is authentic. The
! brief is well worth reading by any stu
dent Of history, as it gives q clearer in
sight into the affairs that have helped
make the Arkansas valley what 1t is to-
day. OF course points and phrases OF
law are pat in. but these do not detract
from the interesting story.
The brief discusses the questions Of
Riparian rights of states and its people;
common law between states; the United
States statutes concerning irrigation; the
validity of the Colorado irrigation laws:
the law Of navigable rivers in the United
States. and the appropriation by one state
Of water flowing into another, besides
taking up a history Of common law in
Kansas and Colorado.
In 1850 Texas ceded 70 the United States
all Of Kansas and Colorado lying south
OF the Arkansas river, from Dodge City
to Leadville, and in 1854 the territory Of
Kansas was created. BY that act the
territory of Kansas included all of the
present state and two-thirds Of Colorado.
The western boundary of the territory
was the Rio Grande river. All Of the
territory outside Of the present boundaries
Of Kansas was created into the county o.
Arapahoe, by an act approved November
I, 1855.
At the election held October 6. 1856. &c
choose a delegate 10 congress Arapahoe
county cast seven votes, and in 1859 a. J.
Smith represented Arapahoe county in the
Kansas legislature. Arapahoe county still
exists in Colorado, although considerably
diminished in size. and still contains the
capital of the state. On January .. 1851,
Kansas was admitted as a state. and on
February Is of the same year Arapahoe
county became a part Of Colorado terri
tory.
The question OF Riparian rights is given
a long section in the brief. This part'was
omitted in the demurrer fled by the de
PENDANT
II is cited that the owners of land ad-
joining a stream have equal rights above
and below. and a property owner IS sub
Jet to the disturbances and consequent
Annoyance and inconvenience as might re
suit from a reasonable use of the waters
of the stream by others. II IS pointed
out that The people OF Colorado 30 not
make Il reasonable use OF the water Of
the Arkansas river. and that the peon-e
below them are thus deprived Of their
rights
The Arkansas river. after flowing near
Iy 30 miles and draining 22,oo0 square
miles Of territory. flows 80 miles in kan
sas. making fertile and valuable valley
containing a50oo0o acres Of land The
value of the land is more than 80 million
dollars. ard the farmers residing thereon
are upwards of $1,000 in number An ur-
ban population about equally large re-
sides within this area. The rainfall IS
light and the tributaries in Western kan
sas are few and small. The result of this
condition is that the fertility Of the soil
in this valley depends upon the low OF
water in the Arkansas river from Colora-
do into Kansas. and the value Of The land
depends upon the continuation Of such
flow.
The diverting OF water from this river
in Colorado began several years since.
Year by year new bitches were added or
old ones extended and enlarged. until the
people, startled by the whitening OF I'M
mature crops and the falling Of unripe
fruit. were aroused 10 the fact that the
taking Of enormous quantities Of water
from this river in another state was fast
turning the fertile farms into desert
lands The subject has been agitated II
Kansas for some years. until legislative
direction for the bringing Of the suit re-
suited
The gfst CT the proceeding lies III the
fact THAI the state OF Kansas is the ripar-
ian owner Of lands wlkhin its bound
aries and the further facr that the state
Of Colorado Is. i not Al present, il future
contemplation. q very great offender
against these rights The brief relates
il detail tie wrongs alleged and the
policy Of the government in regard 20 r.
rigation.
The first point taken rp In the argument
IS the contention of Colorado thar the
common law IN regard ID riparian rights
does rot apply 70 Colorado III o very IT,
serestiug manner the history of The or
ganization of the District II Loaisisns.
L.ouisiana TERRITORY and Missouri terri
tory is related. Missouri tsrritorr II
that tine included au cf Colorado north
II The Arkansas river IS Ear west as
Leadville- and among TIE frsr legislation
enacted By tha sensral assembly - TIE
territory Of Missouri was 3 statute de-
cisrins she common las az England
force The rest 81 th= Arkansas basin
king south of the river vas rzrt ~
the Republic q Texas u 1he time ~ rs
orsanizs ton. arf there. tee thr common
law vas declared Is fierce
Tie ceumcn law statement - rlpari1l
rights on Which the Suit Is lsssd IS slb-
stlntiaiiy rs follows
Erers Hro1rieter - lands o. tEa a1esz
81 river has naturally au tss,sl Elehs ta