The Washington times., 1902-04-08
Supreme Court Overrules
Demurrer to Kansas
Complaint.
ARKANSAS RIVER THE CAUSE
Kansas Claims That the Use of the
Waters of the Arkansas River by the
State Of Colorado Results in Great
Damage to Property Within That State

The demurrer of the State of Colorado
| to the bill of the State of Kansas fled
in the Supreme Court May 90. 1901, ask
ing for an injunction restraining Colo
RADIO from further diverting the water Of
the Arkansas River within its limits
which was filed October Is. 1901, setting
up ten reasons why the bill should not
be entertained. the principal one being
the want of jurisdiction in the Supreme
Court, was overruled yesterday and leave
given to answer the bill.
"The original Jurisdiction of this court"
said Chief Justice Fuller, announcing tho
decision. "over controversies between two
or more States was declared by the act
of 1859 to be exclusive. as in its nature
IL necessarily must be. Reference TO the
language of the Constitution providing for
its exercise, to its historical origin, to
the decisions OF this court in which the
subject has received consideration was
made at length in Missouri VS.. Illinois.
demonstrates the comprehensiveness. the
Importance and the gravity of this grant Of
power and the sagacious foresight Of
those by whom it was framed.
The Chief Justice reviewed recent cases
in which the court had exercised this
jurisdiction to illustrate and describe the
nature of cases in which it might be in-
voked, and then presented the contentious
of the two States set up in the bill and
demurrer.
THE State of Kansas files her bill as
representing and on behalf of her citizens
as well as in yindication of her alleged
rights as ali individual owner. and seeks
relief in respect of being deprived of the
waters of the river accustomed to flow
through and across the State, and the con-
sequent destruction of the property of her
health and comfort.
Sovereign Right of State.
1.-THE State of Colorado contends that as
a sovereign and independent State she is
justified, if her geographical situation and
material welfare demand it in her judg-
ment. in consuming for beneficial purposes
all the waters within her boundaries: and
that as the sources of the Arkansas River
are in Colorado. she may absolutely and
wholly deprive Kansas and her citizens Of
any use of or share in the waters of that
river. She says that she occupies toward
Kansas the same position that foreign
States occury toward each other, although
she admits that the Constitution does not
contemplate that controversies between
members of tire United States may be set
tied by relrisal or force of arms and that
10 secure oId,rly adjustment of such differ
hear anc determine them. The rule Of
decision, however. ii is contended. is the
rule which controls foreign and indepen-
dent States in their relations to each other;
that. by the law of nations, the primary
and absolute right of a State is self-pres-
ervation; that the Improvement to her
revenues, arts, agriculture and commerce
are incontrovertible rights of sovereignty.
that she has dominion over all things
within her territory including all bodies
of water standing or running within her
boundary lines; that the moral obligations
Of State TO observe the demands of COM
ity cannot be made the subject of con-
troversy between States, and that only
those controversies are justifable in this
court which. prior TO the union. would
have been just cause for reprsal by the
State. and that. according to
law. reprisal can be made
only when a positive wrong has been in
fiicted or rights stricti juris withheld.
Action to be Taken.
But when one of our States complains
Of the infiiction of such wrong or the
deprivation of such rights by another
State. how shall the existence of cause
Of complaint be ascertained and be ac-
,ommodated, If well founded? The publi-
of one's own and punishment OF
IN enemy. But as between States of this
Union who can determine what would be
just cause of war? Applying the princi-
pies settled in previous cases, we have no
considerable difficulty with the bare ques-
ion whether facts might not exist which
would justify cur interposition; while the
manifest Importance of the case and the
necessity of the ascertainment of all the
acts before tie propositions of law can
Je satisfactorily dealt with lead US to tha
conclusion that the cause should go to
ssue and proofs before final decision
I'VE think the record should show on
proofs whether Colorado is herself act
ially threatening to wholly exhaust the
low of the Arkansas River i'll Kansas;
whether certain persons firms, and oor-
III OtIOId'lO must Ut u4eiuc pal
lies hereto; what lands in Kansas are
actually situated on the banks of the
liver. and what either in Kansas or COL
,rado. are absolutely dependent on water
herefrom; the extent of the water shed
" the drainage of the Arkansas River;
he possibilities of the maintenance OF a
sustained flow through the control of
lood waters; in short, the circumstances,
variation in which might induce the
atfh or
he relief sought or any part thereof.
Demurrer overruled without prejudice
o any question ard leave to answer"