The Wichita daily eagle., 1903-08-16
CANNOT SELL WATER
Kansas Attorneys Submit This
Proof in River Suit.
COLORADO is ALARMED
Senator Teller Tells People
They Are in Danger.

river suit between Kansas and Coloraoo
fled in The United States supreme court
Kansas offers another argument why
Colorado and, the ditch companies should
not be allowed TO take the water. This
Is an entirely new move on the part OF
the Kansas attorneys, and it hits harder
than any other point so far brought out
in the controversy.
The supreme court of the United States
and the supreme courts Of several states
have handed down opinions in which it
is declared that the water of rivers can
not be sold or bartered. The waters of
q river are 10 be as free as the air and
cannot be sold in one section to the det-
riment of another section.
The amended bill asks that Colorado
and the ditch companies be enjoined from
constructing, owning or operating.
either directly or indirectly, any canal
Or ditch whereby the usual and ordinary
flow of the waters of said river, or any
of its tributaries, shall be diverted from
their natural courses and channels, and
from constructing, owning, operating or
using any reservoir for the storage of
the usual and ordinary flow waters of the
said river or any of its tributaries, for
purposes of irrigation. sale or merchan-
disc"
The big ditch companies buy large
tracts of land, construct bitches and then
sell the land and a water right, which
constitutes the selling or merchandising
of the waters Of rivers which the su-
preme court has declared against.
This case has been compared IN a way
with the state of Connecticut and Massa-
chusetts. If the latter state should pass
laws allowing all of the waters of the
Connecticut river to be taken from that
stream within the boundaries of Massa-
chusetts it would destroy the great man
ufactuling industries of the lower state,
and there is no court that would ever al
low such a thing to be done. Colorado
takes all of the normal flow of the Ar
kansas river within the confines of her
own state which causes non-productive-
ness Of much land in Kansas which
otherwise would be productive if the wa
ters were allowed to run, giving this
land sort Of sub-irrigation.
The amended bin charges that Colorado
and the ditch companies appropriate the
waters of the Arkansas river to an
amount equal to 4,200 cubic feet a second
and from the tributaries and affluents of
this river amounts equal TO 4,300 cubic
feet q second, and it is further claimed
that the average flow of the Arkansas
river within the state Of Colorado does
not exceed 100 cubic feet per second and
the tributaries an equal amount. thus
showing that the ditch companies take
the total average flow of the river and
fits tributaries and even a great amount
Of storm water.
This suit can no longer be regarded as
a joke. Colorado and a great many peo-
PIE of Kansas have long thought the
suit was a concoction Of some lawyers
who wanted something to do: but Senator
Henry II. Teller, the foremost lawyer in
Colorado. in an interview published last
Saturday in the Rocky Mountain News.
says that Colorado can hardly hope to
win the suit even under the most favor
able conditions. They have taken the
matter as joke so long and the Kan
sas attorneys have been working until
Kansas has a case which can hardly be
beaten.
In the issue of August the News
sounds the alarm over Colorado in the
blacKest of type extending in two lines
across the entire front page. The head
lines read: Senator Teller Sounds Alarm
Over Arkansas River Suit"
The News quotes Senator Teller as fol-
lows:
Attorney General Miller may be able
to handle this case single-handed." said
Senator Teller, hut I doubt it. Even
with the hest assistance he could empIay
Colorado will have all she can do to pro-
tect herself in this case. The case as it
stands now is against US. l have the
gravest apprehensions about our being
able to win the suit. even under the most
favorable conditions. The trend Of the
United states supreme court and its de-
cisions are ell against us. All Of Us who
were interested in the case were certain
that the supreme court would sustain our
demurrer and throw the Kansas people
out of court. bat much to our consterna-
ton the demurrer was overruied and We
were ordered To answer. The supreme
court in the case Of New Mexico and the
waters of the Rio Grande river. which
case was analogous to this. gave an opin-
ion or ruling which would seem 10 indi-
cate very clearly that the court viii be
against Colorado in the present suit. II
IS plainly the inteution of the government
20 assume control of irrigation through
cut the country. We have always con-
tended. and it has never before been dis
puted. thar the states had control of their
non-aavisable streams, hut il looks as II
the government were going to assume
control Of them also, on the broad theory
that anything that affects their t-ibutar-
les affects also the navigable streams.
This would take control of its waters out
Of the hands Of the state entirely. and
destroy cur irrigation enterprise. In fact.
Justice Brewer, when he was here a
month or SO ago. was quoted by the
News rs saving that the government
would have 10 assume jurisdiction over
the irrigation question in the west
What We would do il Kansas should
win this suit. I don't know. Nothing can
be done-in congress To remedy the mat
ter, Tor II IS cne Of the contentious in
Kansas salt that congress has no power
In the premises. Kansas having become
possessed OF the riparian rights under the
old Northwest territory. ! am told that
II Kansas wins her suit she viii call upon
the United States army 70 enforce her
rights under the decision. and then all r.
rigaiion would have to cease Colorado.
Such calamity would be Of untold con-
sequences 20 this state II Kansas Is en-
titled 70 the waters Of the eastern water
shed, New Mexico would be entitled 10
those az the southern and Utah and other
neighoor1ng states would al come into