The Elbert County tribune., 1906-12-27
KANSAS 'CASEBAD
WEAK CONTENTION sEroRE Tssg
SUPREME COURT.
ARGUMENT OF coLoRADAlss
Kansas Wants Riparian Rsshts -
Against coiorado-Yet she Wousd
Use the Water Hsrseif-tsiste~y -
the River Brought Out


the River Brought Out
Washington-Tn the Kansas Colo
RADIO case before the Supreme Court
Tuesday Judge Ashbaugh finished hss
argument in behalf of Kansas and vas
followed by N. II. Loomis. who closed
the case for that state
Judge Ashbaugh devoted his time to
further analysis OF testimony tending
to show that Kansas had suffered ir-
reparable injury by reason OF diversion
| OF the waters OF the Arkansas for irri-
| cation purposes In Colorado
He declared Colorado has approprf-
ated 1000 cubic feet OF water per sec
and. which practically takes all tho
supply of the stream In the irrigation
season. He placed the total damages
suffered by Kansas in the past fifteen
years at not less than s75.000.000. He
said Kansas demands fair division OF
the water of the Arkansas river. which
would not be less than 700 cubic feet q
| second.
Mr.. Loomis took up legal features OF
the case and was proceeding finely
with his argument sustaining riparian
| rights, when he was interrupted by
some pertinent inquiries from Justice
White.
One of these was to osk how Kansas
| could stand for the common law doc
trine OF riparian rights, which requires
that all water taken from river
should be returned to II without loss
In quantity, and at the same time con-
tinue to divert the waters OF tho
stream in western Kansas for irriga-
tion and object to her sister state do
Ing the same thing. This inquiry en-
barrassed Loomis. who failed to an
swer Il, and went on with his legal ar
gument
Justice White apparently was not
satisfied and continued his Interrupt
ton, saying:
"The contention OF Kansas leads to
a curious position on the part of that
state. II 1t stands for riparian doc
trines II can not irrigate itself. On
the other hand, II It stands for the doc
trine OF prior appropriation. why
should 1t object to Colorado using the
water under the same doctrfDe7
Again Mr.. Loomis evaded the argu-
ment directly and branched into N
phase of the subject entirely irrelevant
to the inquiries propounded by the
Justice.
/ Clyde C. Dawson opened the argu-
ment for Colorado. He called the at
tention of the court to conditions In
the arid country as they now exist and
y years ago, before the beneficcnt results
of irrigation made radical changes. He
described the Arkansas river. contend
ing that it had been n broken river at
all times: that there is n stretch or
country in western Kansas where the
, stream always goes dry. thus showing
! that what is done in Colorado in the
way OF diverting water In Colorado
does not affect affect the flow Of the
; stream in Kansas, He strengthened
this contention by quoting from Pixies
diary, written in 1906. that In this
stretch of country the Arkansas river
went ory 100 years ago, and from aii-
thenticated reports he showed that the
river in this particular part Of Kansas
had gone dry thirty-eight years in sue
cession. He took up and discusused
} the testimony of witnesses from Kan
sas which showed that the fow OF the
Arkansas river for the past ten years
had been just as good as In earlier
J years. That the underfiow upon
: which Kansas laid so much stress is
not dependent on the surface now Of
the river, this being the consensus OF
, testimony of all experts OF the govern
ment The level Of the underflow was
: shown by these experts to be higher
than the level of the river at corre-
, spending points and therefore does not
Q come from the river, but from general
: drainage OF the great plains. Kansas
E witnesses themselves testified that tho
/ underflow had not been affected by rca-
3 son of irrigation In Colorado. but that
, from the return Of water by seepage
!. from Colorado irrigation the volume OF
D the underfiow had been increased
I rather than diminished That Kan
e sas lands are higher In price and
utat..
than ever before.
q He showed by the testimony Of sew
0 enty Kansas witnesses that many peo'
l. pie living in the Arkansas valley in
J. Kansas never heard OF complaints
l. among their neighbors concerning d.
e version of the stream in Colorado until
e this suit was agitated-
Mr.. Dawson's address To the court
: was comprehensive and was received
with marked attention
Platt Rogers of Denver, who repre-
I sents the ditch interests Of the Arkan-
!, sas valley in Colorado. made an aTgu-
I ment which. while intended to be in
. the especial intereSt OF his clients.
was also in general support Of Colora-
dos right to use the wafer within her
tended that irrigation is a phase Of ma
tional development which has origi-
mated without reference TO state lines
: and represents the wants and necessi-
ties of the arid West as aided and pro-
NOTED by the national government pol
II Icy is carried out.
d. c. Beaman, representing the Colo
> RADIO Fuel & Iron Company. also pre-
: sented many facts in support OF CoIora-
: do'sh right to use the water within her
borders. He quoted numerous expIor.
ers to show the ..ndency Of the Ar
kansas to go dry in the summer long
; before irrigation was known in Colo
l RADIO. or even Colorado was known, and
said that testimny to the contrary was
/ without value unless 1t covered the en-
tire length OF the stream in Colorado