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STATE OF KANSAS, Complainant,
STATE OF COLORADO et al., Defendants, The United States of America, Intervener.
Courts-power of Federal courts.
1. The entire judicial power of the nation granted to the Federal courts by U. S. Const. art. 3, § 1, is not limited by the declaration in § 2 that "the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States," etc.* Courts-power of Federal courts.
territory by treaty; and is subject to no other restrictions than those those expressly named in the Constitution. Congress-power over arid lands.
7. State laws in respect of the general reclamation of arid lands cannot be overridden by Congress in the exercise of its power under U. S. Const. art. 4, § 3, to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States.
Injunction-diversion of Arkansas river by Colorado to injury of Kansas.
8. Kansas, having recognized the right
2. The judicial power of the United States, vested by U. S. Const. art. 3, § 1, to appropriate the waters of a stream for in the Federal courts, embraces all controversies of a justiciable nature arising within the territorial limits of the nation, no matter who may be the parties thereto, except so far as there are limitations expressed in the Constitution on the general grant of judicial power. *
Supreme Court-original jurisdiction.
3. The original jurisdiction of the Supreme Court of the United States extends to a controversy between the states of Kansas and Colorado and the United States, presenting the questions whether Kansas has a right to the continuous flow of the waters. of the Arkansas river as that flow existed before any human interference therewith, or whether Colorado has the right to appropriate the waters of that stream so as to prevent that continuous flow, or whether the amount of the flow is subject to the superior authority and supervisory control of the United States.
Waters-diversion of Arkansas river-respective rights of Kansas, Colorado, and the United States.
4. The respective rights of the states of Kansas and Colorado in regard to the flow of water in the Arkansas river is not subordinate to any supposed superior right on the part of the national government to control the whole system of the reclamation of arid lands, since the reclamation of arid lands is not one of the powers granted to the general government.
Congress-power over arid lands.
irrigation purposes, subject to the condition of an equitable division between riparian proprietors, is not entitled to enjoin Colorado from diminishing the flow of the Arkansas river by appropriating its waters for purposes of irrigation, which has resulted in reclaiming large areas of arid lands in Colorado, while the influence of such diminution, though of preceptible injury to some portions of the Arkansas valley in Kansas, has worked little, if any, detriment to the great body of the valley. Subsurface waters-subterranean stream.
9. The presence of water beneath the bed of the Arkansas river as it passes through the state of Kansas, though in places of considerable amount and running in the same direction, does not show the existence of an independent subsurface river, flowing continuously from the Colorado line through the state of Kansas. Diversion of Arkansas river-respective rights of Kansas and Colorado.
10. The determination of the respective rights of the states of Kansas and Colorado to the benefit of the water in the Arkansas river cannot be affected by any theory that, because at times and in some places the entire bed of the channel is dry, there are two rivers, one commencing in the mountains of Colorado and terminating at or near the state line, and the other commencing at or near the place where the former ends, and, from springs and branches, starting as a new stream, to flow onward through Kansas and Oklahoma toward the Gulf of Mexico.
[No. 3, Original.]
5. The reclamation of arid lands not the property of the United States, nor situated within the limits of a territory, was not comprehended in the grant to Congress by U. S. Const. art. 4, § 3, of the power to dispose of, and make all needful rules and Argued December 17, 18, 19, 20, 1906. Deregulations respecting, the territory or other property belonging to the United States.
cided May 13, 1907.
Congress power over territories - arid ORIGINAL BILL by the State of Kansas
against the State of Colorado to en6. Congress has full power to legislate join the diversion by the latter state of in respect to the arid lands in the terri- the water of the Arkansas river. The tories by virtue either of the provision of United States, on leave, filed a petition of U. S. Const. art. 4, § 3, that Congress shall intervention, asserting that the amount of have power to dispose of, and make all need the flow of the river was subject to the suful rules and regulations respecting, the territory or other property belonging to the perior authority and supervisory control of United States, or by virtue of the power the United States. Petition in intervention vested in the national government to acquire dismissed without prejudice to the rights *Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, §§ 792-800.
of the United States to take any action nec-, gone so far as to justify the destruction of essary to preserve or improve the naviga- the rights of other states and their inhabbility of the river. Bill dismissed without prejudice to institute new proceedings.
Statement by Mr. Justice Brewer:
On May 20, 1901, pursuant to a resolution passed by the legislature of Kansas (Kan. Laws 1901, chap. 425), and upon leave obtained, the state of Kansas filed its bill in equity in this court against the state of Colorado. To this bill the defendant demurred. After argument on the demurrer this court held that the case ought not to be disposed of on the mere averments of the bill, and, therefore, overruled the demurrer without prejudice to any question defendant might present. Leave was also given to answer. 185 U. S. 125, 46 L. ed. 838, 22 Sup. Ct. Rep. 552. In delivering the opinion of the court the Chief Justice disclosed in the following words the general character of the controversy, and the conclusions arrived at (p. 145, L. ed. p. 846, Sup. Ct. Rep. p. 559):
itants altogether; and that the acts of Congress of 1866 and subsequently, while recognizing the prior appropriation of water as in contravention of the common-law rule as to a continuous flow, have not attempted to recognize it as rightful to that extent. In other words, Kansas contends that Colorado cannot absolutely destroy her rights, and seeks some mode of accommodation as between them, while she further insists that she occupies, for reasons given, the position of a prior appropriator herself, if put to that contention as between her and Colorado.
"Sitting, as it were, as an international as well as a domestic tribunal, we apply Federal law, state law, and international law, as the exigencies of the particular case may demand, and we are unwilling, in this case, to proceed on the mere technical admissions made by the demurrer. Nor do we regard it as necessary, whatever imperfections a close analysis of the pending bill may disclose, to compel its amendment at this stage of the litigation. We think proof should be made as to whether Colorado is herself actually threatening to wholly exhaust the flow of the Arkansas river in Kansas; whether what is described in the bill as the 'underflow' is a subterranean stream flowing in a known and defined chan
"The gravamen of the bill is that the state of Colorado, acting directly herself as well as through private persons thereto licensed, is depriving and threatening to deprive the state of Kansas and its inhabitants of all the water heretofore accustomed to flow in the Arkansas river through its channel on the surface, and through a sub-nel, and not merely water percolating terranean course across the state of Kansas; that this is threatened not only by the impounding and the use of the water at the river's source, but as it flows after reaching the river. Injury, it is averred, is being, and would be, thereby inflicted on the state of Kansas as an individual owner, and on all the inhabitants of the state, and especially on the inhabitants of that part of the state lying in the Arkansas valley. The injury is asserted to be threatened, and as being wrought, in respect of lands located on the banks of the river; lands lying on the line of a subterranean flow; and lands lying some distance from the river, either above or below ground, but dependent on the river for a supply of water. And it is insisted that Colorado, in doing this, is violating the fundamental principle that one must use his own so as not to destroy the legal rights of another.
"The state of Kansas appeals to the rule of the common law that owners of lands on the banks of a river are entitled to the continual flow of the stream; and while she concedes that this rule has been modified in the Western states so that flowing water may be appropriated to mining purposes and for the reclamation of arid lands, and the doctrine of prior appropriation obtains, yet she says that that modification has not
through the strata below; whether certain persons, firms, and corporations in Colorado must be made parties hereto; what lands in Kansas are actually situated on the banks of the river, and what, either in Colorado or Kansas, are absolutely dependent on water therefrom; the extent of the watershed or the drainage area of the Arkansas river; the possibilities of the maintenance of a sustained flow through the control of flood waters,-in short, the circumstances, a variation in which might induce the court to either grant, modify, or deny the relief sought or any part thereof."
On August 17, 1903, Kansas filed an amended bill, naming as defendants Colorado and quite a number of corporations, who were charged to be engaged in depleting the flow of water in the Arkansas river. Colorado and several of the corporations answered. For reasons which will be apparent from the opinion the defenses of these corporations will not be considered apart from those of Colorado. On March 21, 1904, the United States, upon leave, filed its petition of intervention. The issue between these several parties having been perfected by replications, a commissioner was appointed to take evidence, and, after that had been taken and abstracts prepared, counsel for the respective parties were heard in argu.
ment, and upon the pleadings and testimony | practically all the bottom lands in the east the case was submitted.
In order that the issue between the three principal parties, Kansas, Colorado, and the United States, may be fully disclosed,-although by so doing we prolong considerably this opinion, we quote abstracts of the pleadings and statements thereof made by the respective counsel. Counsel for Kansas say:
or lower half of the valley were entered and settled, and title obtained from the United States or the state of Kansas; and by the year 1882 the west or upper half of the valley was so entered and settled and like titles obtained. By the year 1873 a railroad was built through the entire length of the valley, and immediately after their settlement these bottom lands were extensively "The bill of complaint alleges that the cultivated, large crops of agricultural prodstate of Kansas was admitted into the ucts were raised, towns and cities sprang Union on January 29, 1861, that the state up, population rapidly increased, and by the of Colorado was admitted on August 1, 1876, year 1883 practically all the bottom lands and that the other defendants are corpora- of the Arkansas valley were in a state of tions organized, chartered, and doing bus- successful and prosperous cultivation; that iness in the state of Colorado; that the Ar- the waters of the Arkansas river furnished kansas river rises in the Rocky mountains, the foundation for this prosperity. These in the state of Colorado, and, flowing in a waters furnished a wholesome and ample southeasterly direction for a distance of supply for domestic purposes, for the waabout 280 miles, crosses the boundary into tering of stock, for power for operating the state of Kansas; that the river then mills and factories, for saturating and subflows in an easterly and southeasterly direc-irrigating the bottom lands back to the uption through the state of Kansas for a dis- lands on either side of the river, so that tance of about 300 miles, then through Ok- crops thereon were not only bounteous but lahoma, Indian territory, and Arkansas, on practically certain, and in the western porits way to the sea. Through the state of tion of the valley these waters were approKansas the Arkansas valley is a level plain priated and used for surface irrigation, to but a few feet above the normal level of supplant the scanty rainfall in that region. the river, and is from 2 to 25 miles in width. That by reason of these uses of the waters Back to the foothills on either side there of the Arkansas river, and the almost unare bottom lands which are saturated and varying water level beneath these bottom subirrigated by the underflow from the riv- lands being near the surface, the lands in er, and are fertile and productive almost the Arkansas valley in the state of Kansas beyond comparison. The Arkansas river is a were of great and permanent value to the meandered stream through the state of Kan-owners and settlers thereon, and those upon sas, and under the laws and departmental the tax rolls of the state of Kansas yielded rules and regulations of the United States it a large and increasing revenue to the comis a navigable river through the state of plainant for state purposes. Kansas, and was, in fact, navigable and navigated from the city of Wichita south to its mouth; and that the complainant is the owner of the bed of the stream between the meandered lines in trust for the people of the state; that the complainant is the owner of two tracts of land bordering upon the river, one at Hutchinson and one at Dodge City, upon which state institutions are maintained, one as a reform school and the other as a soldiers' home. That when the state of Kansas was admitted into the Union it became the owner, for school purposes, of sections 16 and 36 of each congressional township, of which the complainant still owns many thousand acres, much of which borders on the Arkansas river. That by act of Congress of March 3, 1863 [12 Stat. at L. 772, chap. 98], the complainant became the owner of each odd-numbered section of land in the Arkansas valley and has since conveyed the whole of this land for the purposes specified. That by the year 1868 the land in the Arkansas valley began to be taken by actual settlers, and by the year 1875 27 S. C.-42.
"That after the lands in the Arkansas valley had been settled and raised to a high state of cultivation, all the bottom lands in the valley being riparian lands and directly affected by the presence and flow of the river, and after parts of the flow of the river had been used for manufacturing and milling purposes, and after the riparian lands had been largely and extensively irrigated in the valley of the river in the western portion of Kansas, and after portions of the land so belonging to the complainant had been sold and conveyed, the state of Colorado and other defendants began systematically appropriating and diverting the waters of the Arkansas river, in the state of Colorado, between Cañon City and the Kansas state line, for the purpose of irrigating dry, barren, arid, nonriparian, and nonsaturated lands lying on either side of the river, and often many miles therefrom and by the year 1891 all the natural and normal waters and a large portion of the flood waters of the Arkansas river were so appropriated and diverted and
actually applied to these dry, barren, arid, | times in early years, and now, the Arkansas nouriparian, and nonsaturated lands in the river at times of flood, or of what might state of Colorado, said diversions increasing be called high water, has a continuous flow from year to year, as their means of diver- from its source to its mouth; but a flow, sion became more complete and perfect, so even in times of flood or high water, which the average flow of the river was greatly diminishes through the sandy waste east of and permanently diminished and the normal the Colorado state line above described, so flow of the river, exclusive of floods, was that oftentimes even a flood in Colorado wholly and permanently destroyed, the navi- would be completely lost before it had gability of the river where navigable before passed over this arid stretch of sandy chanhas been ruined, the power for manufactur- nel, and high water would always be diing purposes greatly diminished, the sur- minished in flow through the same stretch fact of the underflow beneath the bottom of country. This river is as if it were a curlands has been lowered about 5 feet, and the rent of water passing over a sieve; if the water for the irrigation ditches in the current be slow and the volume not excessive western part of Kansas has been entirely all of it sinks through the sieve and none cut off. The loss sustained by the com- passes on beyond; when the current is plainant and its citizens has been great and rapid and the volume is large, still a large incalculable. The benefits of river naviga- amount sinks in the sieve, and the residue tion are gone; the cheap water power has passes on beyond. been replaced by the costly steam power; the productiveness and value of the bottom lands have been greatly diminished; the irrigation ditches are left dry and the lands uncultivated; and the revenues of the state of Kansas and its municipalities have been materially decreased. Against this loss and injury the complainant prays the assistance of this court."
"Now, the irrigators of Colorado have confined their actions to the Colorado Arkansas above described. They have taken the waters of the perennial stream before it reaches this sieve, through which it wasted; they have lifted that stream out of the sandy channel in which it had flowed, and applied it to beneficial uses upon the land; carried the body of it along at a higher level
In the brief of counsel for Colorado it than where it was accustomed to run, and is said:
they finally restore it, practically undimin"The contention of the defendant, state of ished in volume, so far as regards practical Colorado, as to the facts, may be concisely use; at points in the ancient channel farther stated as follows: The Arkansas river, pop-east than the river at low water was accusularly so called, is substantially two rivers, -one a perennial stream rising in the mountains of Colorado and flowing down to the plains, and this Colorado Arkansas, when the river was permitted to run as it was accustomed to run, prior to the period of irrigation, poured into the sands of western Kansas, and at times of low water the river as a stream entirely disappeared. Its waters were to some extent evaporated, and, as to the residue, were absorbed and swallowed up in the sands. So that from the vicinity of the state line between Kansas and Colorado on eastwardly, as far, at least, as Great Bend, if not farther, at such times of low water there was no flowing Arkansas river. Farther east, however, a new river arose, even at such times of low water, and partly from springs, partly from the drainage of the water table of the country supplied by rainfall, and partly from the surface drainage of an extensive territory, this river gradually again became a perennial stream, so that south of Wichita, and from there on to the mouth of the river the Kansas Arkansas, as a new and separate stream, had a constant flow. Such, as the river was accustomed to flow, was the Arkansas of the period prior to irrigation. It was a 'broken river.' It is true that at all
tomed to flow before the period of irrigation. The effect of the diversion of this water in Colorado, the carrying of it forward on a higher level, the return of waters, partly through seepage and partly through direct delivery at waste gates, and the effect of this process in extending eastward the perennial flow, will be fully discussed in the course of the argument to follow. It is sufficient in this preliminary statement to say that it is admitted by the complainant that in the course of a twelvemonth there is a vast amount of high and flood waters of the Arkansas that are never captured by man, that are of no use, but are rather of injury to Kansas riparian proprietors, and, so far as any beneficial use is concerned, are absolutely wasted and lost. Kansas does not claim that she has not abundance of water in times of flood or in times of high water; her complaint is based upon the alleged fact that she does not have what she was accustomed to have in periods of low water, whereas, in fact, as contended by the state of Colorado, the diversion of water in Colorado into ditches and reservoirs, continuing, as it does, throughout the year, in times of flood and in times of high water, has the effect, through seepage and return waters, to give
perennial vitality to portions of this stream | now support a population of many millions,
during what would otherwise be periods of depression or suspension of flow."
and that the inhabitants of Colorado and Kansas within the watershed of the Arkansas river have, by irrigation from said river,
The substance of the petition in intervention is thus stated by counsel for the gov-made productive and profitable about 200,ernment:
"The first paragraph of the said petition describes the Arkansas river from its source to its mouth, and alleges that it is not navigable in the states of Colorado and Kansas nor the territory of Oklahoma, but is navigable in the. state of Arkansas and the Indian territory.
"In the second paragraph it is alleged that the lands located within the watershed of the river west of the 99th degree of longitude are arid lands.
"The third paragraph alleges that within said watershed there are 1,000,000 acres of public lands that are uninhabitable and unsalable.
"The fourth paragraph alleges that said lands can only be made habitable, productive, and salable by impounding and storing flood and other waters in said watershed to the end that the said waters may be used to reclaim said land.
"The fifth paragraph alleges that there is not sufficient moisture from rainfall to render the soil capable of producing crops in paying quantities in the watershed so described, and that they can only be made to produce crops by irrigation; that the common-law doctrine of riparian rights is not applicable to conditions in the arid region and has been abolished by statute and by usage and custom; that there has been established in its stead in said region a doctrine to the effect that the waters of natural streams and the flood and other waters may be impounded, appropriated, diverted, and used for the purpose of reclaiming and irrigating the arid land, therein, and that the prior appropriation of such waters for such purpose gives a prior and superior right to the water of the stream.
"The sixth paragraph alleges that legislation of Congress, decisions of courts, and acts of the executive department have sanctioned and approved the use of water for irrigation purposes in the arid region, and that he who is prior in time is prior in right, and that it is recognized that the common-law doctrine of riparian rights is not applicable to the public land owned by the United States in the arid region.
"The seventh paragraph alleges that, in accordance with and in reliance upon the doctrine of the use of water for irrigation purposes, the inhabitants of the arid portion of the United States have appropriated and used the waters of streams therein to reclaim and make productive and profitable about 10,000,000 acres of land, which
000 acres of land, which provide homes for and support a population of many thousands.
"The eighth paragraph alleges that the common-law doctrine of riparian rights is not applicable to riparian lands within the arid region, and that only by the use of waters of natural streams and flood waters for irrigation and other beneficial purposes can the lands in the arid region be made productive, and only by such use can additional areas be reclaimed and rendered productive and salable.
"The ninth paragraph recites the passage of the so-called reclamation act of June 17, 1902. [32 Stat. at L. 388, chap. 1093, U. S. Comp. Stat. Supp. 1905, p. 349.]
"The tenth paragraph alleges that about 60,000,000 acres of land belonging to the United States within the arid region can be reclaimed under the provisions of the socalled reclamation act.
"The eleventh paragraph alleges that the amount of land that can be so reclaimed will support a population of many millions.
"The twelfth paragraph alleges that, under the operation of the said reclamation act, 100,000 acres of public land can be reclaimed within the watershed of the Arkansas river west of the 99th degree west.
"The thirteenth paragraph alleges that the lands, when so 'reclaimed, will support a population of not less that 50,000.
"The fourteenth paragraph alleges that, under the operation of the so-called reclamation act, about $1,000,000 has been expended in exploring, procuring, and setting apart sites upon which reservoirs and dams contemplated by the act can be constructed and maintained; that contracts have been let for the construction of reservoirs which, when completed, will cost over two millions and will have a storage capacity to reclaim 500,000 acres of arid land, which land when reclaimed will sustain a population of not less than 250,000; that plans are contemplated for the expenditure of $20,000,000 under said act, to irrigate about 1,000,000 acres of arid public lands.
"The fifteenth paragraph recites that there are $16,000,000 available under the so-called reclamation act.
"The sixteenth paragraph sets forth the contention of Kansas as seen in its amended bill of complaint, viz., that it is entitled to have the waters of the Arkansas river, which rises in Colorado, flow uninterrupted and unimpeded into Kansas.
"The seventeenth paragraph sets forth the