The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1904-09-13
WOULD TAKE A HAND.
Kansas Wants Into Wallace County
Irrigation Suit.

The state of Kansas, through its at
torneys who are representing the state
in the KanSaS-Colorado litigation, pro-
poses to intervene in a suit now pend
ing in the supreme court from Wallace
county as "a friend of the court" The
question of the control of waters for
irrigation comes up in the case, and
the lawyers who represent Kansas in
its litigation with Colorado are anxi-
Gus that the case should be decided
according to Kansas contention in the
United States supreme court.
There are two doctrines concerning
the control of waters in streams. One
is the old common law doctrine of
riparian rights, and the other is the
Pacific coast, or arid states doctrine of
prior appropriation. Kansas is arguing
for the doctrine of riparian rights in it's
suit against Colorado, but the district
court of Wallace county decided that
the doctrine of prior appropriation is
the proper one. That is just what Col
orado is contending, and if the Kansas
supreme court should so decide it
would be something of a joke on the
Kansas lawyers in the Kansas-Color-
ado litigation.
Senator Fred Dumont Smith and S.
s AShbaugh are here today to confer
with N. B. LoomiS and Attorney Cen
they propose to ask the supreme court
to allow them to takeSas hand and file
an intervening petition JIM the Wallace
county case.
The issue comes up directly in the
case which is now pending from Wal
lace county. 1t is entitled Clark VS..
ALBANIAN ALBANIAN is a Wallace coun-
ty man who has for several years been
using water from Rose creek, a tribu-
tary of the Smoky Hill, for irrigation
purposes. Clark and other ranchmen
used the water of the creek for water
ing their stock and during dry weather
when ALBANIAN needed it most the
ranchmen used it up. ALBANIAN alleged
that he had the first claim to the
water. because he had used it first for
irrigation. According to the doctrine
of prior appropriation the man who
first uses water from a stream is en-
titled to as much as he has ever taken
as a steady flow ALBANIAN claimed
that this doctrine is the proper one for
western Kansas and he claimed to be
entitled to a flow of three cubic feet
per second. He brought suit against
Clark to enjoin him from taking
enough water from the stream to pre-
vent him, ALBANIAN, from getting his
three feet per second
Clark claimed that the old common
law doctrine of riparian rights prevails
in Kansas, which is the same as the
Colorado litigation. This is that the
regular flow of a stream may not be
abridged except for domestic use.
On the trial of the suit in the district
court of Wallace county, the court held
in favor of ALBANIAN and granted the
injunction, thereby deciding the arid
states doctrine of prior appropria-
ton. Clark has appealed to the SUI
preme court.
The attorneys who represent Kansas
in the scrap with Colorado do not
want the supreme court of Kansas to
decide this way. That might upset
Kansas contention in the United States
supreme court somewhat. 1t is largely
a question of whether the old common
law prevails in Kansas or not The
Kansas attorneys claim that the COM
mon law was first adopted for the ter
ritory of Louisiana back in 1906. and
later for the territory of Kansas when
Kansas reached clear to the summit
of the Rockies.