Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1902-04-08
KANSAS HAS RIGHTS
United States Supreme Court
Renders Important Decision
on Irrigation Privileges.
Holds One State May Not Appro-
pirate All Water of a
River.
Kansas Entitled to Portion Of
Stream Flowing Thru Both
States.


States supreme court in an opinion de-
liyered by Chief Justice Fuller, over
ruled the demurrer of the state OF
Colorado in the case of the State OF
Kansas versus the State of Colorado.
The case involves the right of Colorado
to appropriate for purposes of irriga-
ton the waters of the Arkansas river
which Kansas sought by an original
action to restrain on the ground that
people of the latter state are injured by
Colorado's appropriation of the water.
Colorado contested the Jurisdiction of
the court in the case ana filed a demur-
rer. The chief justice said that the case
is one in which the court can properly
assume Jurisdiction He said also the
action of the court in overruling the de-
murrer was intended to be without
prejudice, but was taken because the
Importance of the case is such that it
should be not be decided without full
proof on the questions set UP in the al
Legations of damage made by the state
Of Kansas.
On the question of jurisdiction the
chief justice said: Without subjecting
them to minute 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 benefit of water from river rising
in the former, and by nature flowing
into and thru the latter, and that,
therefore, this court, speaking broadly,
has Jurisdiction" Coming to the ques .
ton of the demurrer, he said: 1.-The
general rule is that the truth of mate
rial and relevant matters set forth with
requisite precision are admitted by de-
murrer, but in case OF this magnitude,
involving questions OF 50 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: sit.
ting, as 1t were, as an International as
well as domestic tribunal we apply
federal law, state law and interna-
tional law, and the exigencies Of the
particular case may demand and we
are unwilling in this case to proceed
on the mere technical admissions made
by demurrer. Nor do we regard it
necessary, whatever imperfections q
close analysis Of the pending bill may
disclose, to compel It's amendment at
this stage of the litigation. We think
the record should show on proofs
whether Colorado is herself actually
threatening to wholly exhaust the flow
OF the Arkansas river in Kansas,
whether what is described in the bill
as the under flow is subterranean
stream flowing in known and defined
channel. and not merely water preco-
lating thru the strata below; whether
certain persons, firms or corporations
in Colorado must be made parties
thereto; what lands In Kansas are ac-
tually situated on the banks Of the
river, and whether In Colorado or Kan
sas are absolutely dependent on water
therefrom; the extent Of the watershed
or the drainage area OF the Arkansas
river; the possibilities Of the main
tenance Of a sustained flow thru the
channel Of flood waters; In short, the
circumstances, variation in which
might induce court to either grant
relief, modify or deny the relief sought
or any part thereof. In view Of the,
intricate questions arising on the
record we are constrained to forbear
proceedings until all the facts are be-
fore US on the evidence"
An opinion was delivered by Justice
Brewer, In the case of Pine and others
against the city OF New York and
Controller Bird s. Coler, involving the
right OF the city to appropriate all
the water of a stream along which
the complainants reside. The case
was decided against the city by the
circuit court Of appeals. but today's
opinion reversed that finding and re-
-manded the case for further hearing
with instructions to consider the ques-
ton Of damages. sios