New-York tribune., 1907-05-14
STATES RULE WATERS
COLORADO WINS SUIT.
Great Legal Battle OUer Irrigation
Decided bY Supreme Court.


the former sought to have the latter enjoined
from diverting the waters of the Arkansas River
for irrigation purposes or permitting its citi-
zens 10 do So was dismissed by the Supreme
Court of the United States to-day. The opinion
by Justice Brewer, who said that the de-
cision was without prejudice to the right OF Kan
sas to renew it's petition whenever it can be
shown that that state is being substantially In
tured. The intervening petition OF the United
States also dismissed.
The case has been on the docket since 1901.
when Kansas first fled its bill of complaint. In
that document it was alleged that the numerous
irrigation bitches in Colorado had caused such a
great and permanent diuninution Of the volume
of water as to render navigable stream
almost dry. greatly TO diminish the power for
manufacturing purposes, TO lower TO the extent
of about five feet the surface of the underfow
Of the stream. and to cut of the supply Of water
for irrigation in Western Kansas. The loss was
represented TO be incalculable. Kansas asked
for injunction, to be directed especially
against future appropriations. and to recognize
the principle OF priority of right on the part Of
the Kansas bitches constructed before bitches IN
Colorado. The doctrine that a riparian owner
has right TO the full natural flow of the stream
a strong dependence of the complaining
state, and it was strenuously urged that under
this right waters Of the river could not be d-
extensive systems Of irrigation as prevail along
the Arkansas in Colorado. Colorado. on the
other hand. contended that she had exclusive
control Of the waters within her borders re-
fused TO acknowledge the navtgabflity OF the
Arkansas at any time, pleaded the practice of
diversion under irrigation law the world over.
dwelt the immense interests shat had accu-
Tnulated unQuestioned by Kansas and urged l?at
through seepage much of the irrigation water
The United States was represented In the hear
ing in the case interviewer. Almost a year
spent in taking testimony. Three hundred
and fifty witnesses were heard Not only the |
two states and the national government but
many private corporations were heard. The case
has been regarded IS one Of the most important |
proceedings before the United States Supreme |
Court in quarter Of century. for the principles
involved in II, dealing with relations between |
the states and Of the states to the federal gov
ernment went to the deepest foundations Of the |
organic law. It was also recognized as the first |
great legal battle over irrigation.
JUSTICE BREWERS OPINION.
Justice Brewers opinion closed as follows:
Summing up our conclusions. ge are of the |
opinion that the contention Of Colorado of two |
streams cannot be sustained; that the appro- /
priaton Of the waters of the Arkansas by Colo |
rado for purposes OF irrigation has diminished |
the flow Of water into the State of Kansas; |
that the result OF that appropriation has been |
the reclamation Of large areas in Colorado. /
transforming thousands Of areas into fertile |
fields and rendering profitable their occupation |
and cultivation when otherwise they would |
have continued barren and unoccupied; that, |
while the influence Of such dirninution has been |
of perceptible injury TO portions OF the Arkan-
Valley in Kansas particularly those por- |
lions closest the Colorado line, yet to that great
body OF the valley 1t has worked little If any.
a6etrIment Rnd regarding the interests of both |
states and the right Of each to receive benefits |
through irrigation and in any other manner |
from the waters Of this stream. are not sat- |
.isfed that Kansas has made out case emitting |
It 10 decree At the same time ii Is obvious !
that II the depletion or the waters OF the river /
by Colorado continues to increase there Will |
come time when Kansas may justly say there |
IS no longer an equitable division Of benefits, |
and may rIghtfully call for relief against the |
action Of Colorado. its corporations and citizens
IN appropriating the waters OF the Arkansas for |
irrigation purposes.
The decree which, therefore will be entered |
viii be one digrnissing the petition Of the IN |
tervenor. without prejudice 10 the right Of the |
United States TO take such action as II shall |
deem necessary TO preserve or improve the navi- |
gability OF the river. The decree will also dis |
miss the bill OF the State OF Kansas as against |
all The defendants without prejudice TO the |
right Of the plaintiff 70 institute new proceed |
ings whenever IT shall appear that through a |
material increase IN the depletion 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 between the |
two states resulting from the flow of the river |
Each party will pay its own COSTS
FEDERAL GOVERNMENT POWERS.
With reference to the power of the govern |
ent in interstate controversies involving irriga-
ton questions, the opinion held that no rights |
could be exercised that had not been granted TO |
the federal authority while he said arid |
lands are 10 be found mainly. If not only, in the
Western and newer states, yet the powers OF |
the national government within the limits OF |
those states are the same (no greater and no |
less as those within the limits of the Original |
thirteen and il would be strange If, in the ao- |
sence OF q definite grant of power, the nallohai |
government could enter the territory or the |
states along the Atlantic and lesslate in respect
10 improving by irrigation otherwise the lanos |
within their borders. Nor do we understand |
that hitherto Congress has acted in disregard |
10 this limitation But IL Is useless to |
pursue the inquiry further in this direction |
Enough for the purposes of this case that each |
state has fun Jurisdiction the lands within |
its borders including the beds Of streams and |
other waters. II may determine for itself |
whether the common law rule in respect to !
riparian rights or that doctrine which obtains in |
the arid regions of the West OF the appropria- |
tion Of waters for the purposes Of irrigation |
shall control Congress cannot enforce either |
rule any state"
STATES AND COMMON LAW.
AS to the application OF the common law, he
said:
When the states of Kansas and Colorado were |
ADMITTED into the Union they were admitted |
~lth the full powers OF local sovereignty which |
itai eIossu t 70 otner states and Colorado by its