Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1907-05-14

Irrigation Suit Of Kansas Against Colorado
is Dismissed,
DNAB-l TO SHOW MATERIAL DAMAGE
supfowsr State Nay Renew Its Suit When
IL Has Case.
EACH STATE CAN CONTROL OWN WATERS
Government Nay Determine EQUITABLE
Division Of Interstate streamG
CASE HAS BEEN PENDING FIVE YEARS
II Has Attracted Unusual Attention
Because of the Importance
of the Issues In
vOlved.
CASE HAS BEEN PENDING FIVE YEAR

famous case of the state Of Kansas against I
the state Of Colorado. by which the former
sought to have the latter enjoined from /
diverting the waters OF the Arkansas river /
for irrigation purposes or permitting its
citizens 10 do so. was dismissed by the
supreme court Of the United States today f.
The announcement of the courts decision
was made by Justice Brewer, who said that
the dismissal was without prejudice TO the
right Of Kansas TO serve its petition when
eve- Il can be shown that that state is |
being substantially injured. The interven- /
Z ing petition Of the United States also was
dismissed.
The case has beer on the court docket
since 1901, when Kansas frst lodged It's bill
of complaint. In that document II was al
legged that the numerous irrigation bitches
in Colorado had caused such a great a
permanent ammunition OF the volume of
the water as to render a once navagable
stream almost totally dry, TO great dimin-
ish the power for manufacturing purposes;
TO lower 20 the extent of about five feet
the surface Of the underiow Of the stream
and 30 entirely cut of the supply OF water
for irrigation in western Kansas. The loss
was reported to be incaIculable Kansas
asked for an injunction TO be directed espe-
clally against future appropriations, and to
recognize the principle OF priority Of right
on the part Of the Kansas bitches organ
lied before bitches in Colorado. The COM
mon law doctrine relative TO RIPARIAN
right was a strong dependence OF the COM
planning state and It was strenuousiy urged
that under that right the waters Of the
river could not be converted to distant
lends as is done under such extensive sys-
TENS OF Irrigation as prevail along the Ar
kansas in Colorado. Colorado, on the other
hand, contended for its right to the exclu-
slve control OF the waters within its own
Boundary, refused TO acknowledge the nav
liability OF the Arkansas at any time,
pleaded the practice OF diversion under ir-
rigLti7n law the world over. dwelt upon
the immense interests that have accmu-
lated unquestioned by Kansas and urged
soat through seepage much of the irriga-
bn water finds its way back into the body
n the stream. The United States was rep
n lsented in the hearing I'm the case as an
tNhteryenor. Almost year was spent in
Making testimony. Three hundred and nifty
witnesses were heard. Not only the two
states and the national government. but
many private corporations we're heard in
connection with the suit. Much general
interest was aroused because of the large
interests at stake and OF the general prin-
ciples involved II was recognized as the
first ,veat irrigation legal contest. Justice
Brewes opinion concludes as follows:
Stunning up our conclusions. we are OF
the opinion that the contention OF Colo
rado cannot be sustained: that the appro-
priation Of the waters of the Arkansas by
Colorado for purposes OF irrigation has
diminished the flow OF water into the state
Of Kansas; that the result OF that appro-
priation has been the reclamation OF large
areas In Colorado, Transforming thousands
OF acres into fertile fields and rendering
profitable their occupation and cultivation
when otherwise they would have continued
barren and unoccupied; that while the
eject Of such diminution has been OF per
ceptible injury to the Arkansas valley In
Kansas, particularly those portions closest
to the Colorado line. yet TO the great body
OF the valley, It has worked little detri-
nent, and regarding the interests Of both
states and the rights OF each TO receive
benefits through irrigation in any manner
from the waters OF this stream, we are
not satisfied that Kansas has made out
a case emitting It 10 a decree. At tho
same time IL Is obvious that II the deple-
ton OF the waters OF the river by Colorado
continues 70 Increase there viii come a
time when Kansas may justly say that
there Is no longer an equitable division
OF benefits and may rightfully call for re-
lief against the action OF Colorado. its cor
poraaons and citizens in appropriatins
the waters OF the Arkansas for irrigation
purposes.
Dismissal without Prejudice.
The decree which therefore win be en-
tered. viii be the dismissal OF the petit
tion for intervenor without prejudice to
the right Of the United States TO take such
action as Il shall deem necessary to pre-
serve or improve this navigability OF the
river The decree Will also dismiss the
bln OF the state OF Kansas as against all
sAs defendants, without prejudice 70 the
right OF the plaintiff TO institute new
proceedings whenever It shall appear that
through a material increase IN the deple-
tion OF the waters OF the Arkansas by
Colorado, its corporations or citizens, the
substantial interests OF Kansas are being
injured TO the extent Of destroying the
equitable apportionment OF benefits be-
tween the two states resulting from the
- Sow OF the river. Each party win pay ts
~ - NOsts
Federal Powers Involved.
With reference 70 the power OF the gov
ernment In interstate controversies In
volving irrigation questions the opinion
held that no rights could be exercised that
I'D not been granted TO the federal au-
, fhoTities.
While" he said. arid lands are to be
found maialy. II not only. IN the newer
states. yet the powers OF the national
government within the limits OF those
states are the same (no greater and nc
less) than those within the limits OF the
original thirteen. and Il would be strange
H. IN the absence OF definite grant OF
power. the national government could entsl
the territory OF the states along the At,
lantio and legislate IN respect 70 improv.
ing BY irrigation o rotherwiss the Iandi
within their b0rders Nor do We under,
/ stand that hitherto congress has acted Il
disregard 70 this limitation.
IL b useless 70 pursue the inquiry fur
s'--T IN this direction X g. enough for IN,