Gilpin observer., 1905-06-08


Irado water case, and the issues and
the evidence which has been presented,
Professor L. G. Carpenter, state engi-
neer, has prepared a statement in
which he says in part:
The case in the Supreme Court
brought by the state of Kansas against
the state of Colorado is one of a few
cases Of original Jurisdiction brought
by one state against another.
The character of the contention is
not generally realized by the people Of
Colorado. Knowing there Is suit,
they interpret 1t as one Of the kind Of
suits common in all irrigated sections,
that is, a dispute between bitches
wanting the same water. II this were
the suit 1t would be relatively unim-
portant, although serious enough to
many interests in the Arkansas valley.
The case did not originate at the re-
quest Of people in western Kansas.
On the contrary the people Of western
Kansas have generally opposed the
suit. The agitation for the suit was al
most entirely confined to the people at
Arkansas City, which is the last town
in Kansas near the Oklahoma border,
and Wichita, where no Irrigation is
practiced. They claim under the
broad doctrine of riparian rights doc
trine which Is largely a development
of the conditions in England, where
the greatest use of water is in the
streams and for navigation purposes.
Riparian Doctrine lnapplleable.
The only ones having rights are
those whose mnds border on the
streams, and their use must not inter-
fere with navigation nor with the use
of water for domestic purposes.
The doctrine is one entirely inap-
plicable to an arid region where water
can best be used for irrigation. The
doctrine has, however, been recognized
and in general it may be said that the
doctrine is the law of the land
outside of the strictly arid portion,
and some extreme decisions have been
given by the courts, one of these de-
cisions few years since giving much
to the people Of south
ern Kansas to begin this suit.
A series Of dry years as well as set
tlement and cultivation of the vast ter
ritory and both sides of the river in
Kansas had affected the flow, and this
coming at time when much was said
Of the development of irrigation in
Colorado, caused a state of nervous ap-
prehension which was increased by re-
ports Of still larger developments con-
templated. 1t Is not surprising that
with the popular view that the water
came from the HDcky mountains, these
people were fearful that the river
might be entirely lost.
Kansas asks that Colorado be en-
Joined from permitting the diversion
from any Of the waters of the Arkansas
river or tributaries, except for domes-
tic use.
Kansas also asks that the respective
rights of the states be fixed and a de-
cree rendered for their protection. The
complaint is very voluminous, and in
cludes great many minor specifica-
tions, but these are the most important
ones. and serve to show the general
trend Of the case.
United States lntervenes.
Kansas introduced her case in chief
from August to October of 1904. After
the case was begun the United States
asked leave to intervene as a party
whose interests were materially af-
fected by the issues presented. On the
principal issue the government sides
the right to divert and use the water
of natural streams for irrigation pur-
poses is one absolutely necessary in n
great part of the United States, and
that to apply the riparian doctrine
would almost entirely destroy the en-
tire West. While conceding this right
of appropriation, the government
claims that 1t should be applied with
out regard to state lines, otherwise its
position is much the same as that of
Colorado.
Contention Of Kansas.
The main contention CT Kansas Is:
First-That the river in Kansas has
diminished substantially with the in
crease of bitches in Colorado, hence
she has attempted to show. by the
opinions of people living along the
river, that 1t Is lower than it was dur
ing the early days; that 1t is dry for
longer periods of time and Is narrower.
Second-That there have been
bitches built in Colorado which took
the water. leaving the inference to be
drawn that the construction OF
bitches was the cause OF the change.
Another but very important point
was that the so-called underflow had
been diminished. Kansas contends
that there is n large stream accom-
panying the main river. but much
broader In extent, and that this Is sup
piled by the surface river and is i'm
portant in the growing of crops upon
a wide stretch of land along the valley.
especially In the vicinity of Hutchin-
son and Wichita. She claims that be-
cause the river has been decreased.
this so-called underfloIS has been af-
fected and that the damage to the
owners of lands IL enormous and be-
yond computation" and amounts to
vast sums annually and such damages
have increased year by year. especially
in proportion as the diversion in Colo
rade increased"
Answer Of Colorado.