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STATE OF KANSAS, Complainant, territory by treaty; and is subject to no V. other restrictions than those

those expressly STATE OF COLORADO et al., Defendants, named in the Constitution. The United States of America, Intervener. Congress—power over arid lands.

7. State laws in respect of the general Courts-power of Federal courts.

reclamation of arid lands cannot be over1. The entire judicial power of the na- ridden by Congress in the exercise of its tion granted to the Federal courts by U. power under Ú. S. Const. art. 4, § 3, to S. Const. art. 3, § 1, is not limited by the dispose of, and make all needful rules and declaration in § 2 that "the judicial power regulations respecting, the territory or shall extend to all cases in law and equity other property belonging to the United arising under this Constitution, the laws States. of the United States," etc.*

Injunction-diversion of Arkansas river by Courts-power of Federal courts.

Colorado to injury of Kansas. 2. The judicial power of the United 8. Kansas, having recognized the right States, vested by U. S. Const. art. 3, § 1, to appropriate the waters of a stream for in the Federal courts, embraces all contro- irrigation purposes, subject to the condition versies of a justiciable nature arising with of an equitable division between riparian in the territorial limits of the nation, no proprietors, is not entitled to enjoin Colomatter who may be the parties thereto, ex- rado from diminishing the flow of the Arcept so far as there are limitations ex- kansas river by appropriating its waters for pressed in the Constitution on the general purposes of irrigation, which has resulted grant of judicial power. *

in reclaiming large areas of arid lands in Supreme Court-original jurisdiction.

Colorado, while the influence of such di3. The original jurisdiction of the Su- minution, though of preceptible injury to preme Court of the United States extends some portions of the Arkansas valley in to a controversy between the states of Kan- Kansas, has worked little, if any, detriment sas and Colorado and the United States, pre- to the great body of the valley. senting the questions whether Kansas has Subsurface waters-subterranean stream. a right to the continuous flow of the waters 9. The presence of water beneath the of the Arkansas river as that flow existed bed of the Arkansas river as it passes before any human interference therewith, through the state of Kansas, though in or whether Colorado has the right to ap- places of considerable amount and running propriate the waters of that stream so as in the same direction, does not show the to prevent that continuous flow, or whether existence of an independent subsurface river, the amount of the flow is subject to the flowing continuously from the Colorado line superior authority and supervisory control through the state of Kansas. of the United States.

Diversion of Arkansas river-respective Waters-diversion of Arkansas river-re- rights of Kansas and Colorado.

spective rights of Kansas, Colorado, and 10. The determination of the respective the United States.

rights of the states of Kansas and Colorado 4. The respective rights of the states to the benefit of the water in the Arkansas of Kansas and Colorado in regard to the river cannot be affected by any theory that, flow of water in the Arkansas river is not because at times and in some places the subordinate to any supposed superior right entire bed of the channel is dry, there are on the part of the national government to two rivers, one commencing in the mouncontrol the whole system of the reclamation tains of Colorado and terminating at or near of arid lands, since the reclamation of arid the state line, and the other commencing at lands is not one of the powers granted to or near the place where the former ends, the general government.

and, from springs and branches, starting as Congress-power over arid lands.

a new stream, to flow onward through 5. The reclamation of arid lands not the Kansas and Oklahoma toward the Gulf of property of the United States, nor situated Mexico. within the limits of a territory, was not comprehended in the grant to Congress by

[No. 3, Original.] 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

cided May 13, 1907. property belonging to the United States. Congress power over territories aria ORIGINAL BILL by the State of Kansas lands.

6. 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 ful rules and regulations respecting, the the flow of the river was subject to the suterritory 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 itants altogether; and that the acts of Con. prejudice to institute new proceedings. gress of 1866 and subsequently, while recog

nizing the prior appropriation of water as Statement by Mr. Justice Brewer:

in contravention of the common-law rule On May 20, 1901, pursuant to a resolu- as to a continuous flow, have not attempted tion passed by the legislature of Kansas to recognize it as rightful to that extent. (Kan. Laws 1901, chap. 425), and upon In other words, Kansas contends that Cololeave obtained, the state of Kansas filed its rado cannot absolutely destroy her rights, bill in equity in this court against the state and seeks some mode of accommodation as of Colorado. To this bill the defendant between them, while she further insists that demurred. After argument on the demurrer she occupies, for reasons given, the position this court held that the case ought not to be of a prior appropriator herself, if put to that disposed of on the mere averments of the contention as between her and Colorado. bill, and, therefore, overruled the demurrer “Sitting, as it were, as an international without prejudice to any question defendant as well as a domestic tribunal, we apply might present. Leave was also given to Federal law, state law, and international answer. 185 U. S. 125, 46 L. ed. 838, 22 law, as the exigencies of the particular case Sup. Ct. Rep. 552. In delivering the opin- may demand, and we are unwilling, in this ion of the court the Chief Justice disclosed case, to proceed on the mere technical adin the following words the general charac missions made by the demurrer. Nor do ter of the controversy, and the conclusions we regard it as necessary, whatever imperarrived at (p. 145, L. ed. p. 846, Sup. Ct. fections a close analysis of the pending bill Rep. p. 559):

may disclose, to compel its amendment at “The gravamen of the bill is that the this stage of the litigation. We think proof state of Colorado, acting directly herself as should be made as to whether Colorado is well as through private persons thereto li- herself actually threatening to wholly excensed, is depriving and threatening to de- haust the flow of the Arkansas river in prive the state of Kansas and its inhabi- Kansas; whether what is described in the tants of all the water heretofore accustomued bill as the 'underflow is a subterranean to flow in the Arkansas river through its stream flowing in a known and defined chanchannel on the surface, and through a sub- nel, and not merely water percolating terranean course across the state of Kansas; through the strata below; whether certain that this is threatened not only by the im- persons, firms, and corporations in Colorado pounding and the use of the water at the must be made parties hereto; what lands in river's source, but as it flows after reach- Kansas are actually situated on the banks ing the river. Injury, it is averred, is being, of the river, and what, either in Colorado or and would be, thereby inflicted on the state Kansas, are absolutely dependent on water of Kansas as an individual owner, and on all therefrom; the extent of the watershed or the inhabitants of the state, and especially the drainage area of the Arkansas river; the on the inhabitants of that part of the state possibilities of the maintenance of a suslying in the Arkansas valley. The injury tained flow through the control of flood is asserted to be threatened, and as being waters,-in short, the circumstances, a vawrought, in respect of lands located on the riation in which might induce the court to banks of the river; lands lying on the line either grant, modify, or deny the relief of a subterranean flow; and lands lying sought or any part thereof." some distance from the river, either above or On August 17, 1903, Kansas filed an below ground, but dependent on the river amended bill, naming as defendants Colofor a supply of water. And it is insisted rado and quite a number of corporations, that Colorado, in doing this, is violating who were charged to be engaged in depletthe fundamental principle that one must ing the flow of water in the Arkansas river. use his own so as not to destroy the legal Colorado and several of the corporations anrights of another.

swered. For reasons which will be apparent “The state of Kansas appeals to the rule from the opinion the defenses of these corpoof the common law that owners of lands on rations will not be considered apart from the banks of a river are entitled to the those of Colorado. On March 21, 1904, the continual flow of the stream; and while she United States, upon leave, filed its petition concedes that this rule has been modified in of intervention. The issue between these the Western states so that flowing water several parties having been perfected by repmay be appropriated to mining purposes lications, a commissioner was appointed to and for the reclamation of arid lands, and take evidence, and, after that had been the doctrine of prior appropriation obtains, taken and abstracts prepared, counsel for yet she says that that modification has not 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.

or lower half of the valley were entered and In order that the issue between the three settled, and title obtained from the United principal parties, Kansas, Colorado, and the States or the state of Kansas; and by the United States, may be fully disclosed, -al- year 1882 the west or upper half of the valthough by so doing we prolong considerably ley was so entered and settled and like this opinion,—we quote abstracts of the titles obtained. By the year 187,3 a railroad pleadings and statements thereof made by was built through the entire length of the the respective counsel. Counsel for Kansas valley, and immediately after their settlesay:

ment 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 Oko 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 mear dered 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 nav- "That after the lands in the Arkansas igated from the city of Wichita south to its valley had been settled and raised to a mouth; and that the complainant is the high state of cultivation, all the bottom owner of the bed of the stream between the lands in the valley being riparian lands and meandered lines in trust for the people of the directly affected by the presence and flow of state; that the complainant is the owner of the river, and after parts of the flow of the two tracts of land bordering upon the river, river had been used for manufacturing and one at Hutchinson and one at Dodge City, milling purposes, and after the riparian upon which state institutions are main- lands had been largely and extensively irtained,-one as a reform school and the rigated in the valley of the river in the other as a soldiers' home. That when the western portion of Kansas, and after porstate of Kansas was admitted into the Un- tions of the land so belonging to the comion it became the owner, for school purposes, plainant had been sold and conveyed, the of sections 16 and 36 of each congressional state of Colorado and other defendants betownship, of which the complainant still gan systematically appropriating and diowns many thousand acres, much of which verting the waters of the Arkansas river, borders on the Arkansas river. That by act in the state of Colorado, between Cañon of Congress of March 3, 1863 [12 Stat. at City and the Kansas state line, for the purL. 772, chap. 98], the complainant became pose of irrigating dry, barren, arid, nonrithe owner of each odd-numbered section of parian, and nonsaturated lands lying on land in the Arkansas valley and has since either side of the river, and often many conveyed the whole of this land for the pur-miles therefrom and by the year 1891 all poses specified. That by the year 1868 the the natural and normal waters and a large land in the Arkansas valley began to be tak- portion of the flood waters of the Arkansas en by actual settlers, and by the year 1875' river were so appropriated and diverted and actually applied to these dry, barren, arid, times in early years, and now, the Arkansas nooriparian, 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 arıd 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 compasses 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; “Now, the irrigators of Colorado have the productiveness and value of the bottom confined their actions to the Colorado Arlands have been greatly diminished; the ir- kansas above described. They have taken rigation ditches are left dry and the lands the waters of the perennial stream before it uncultivated; and the revenues of the state reaches this sieve, through which it wasted; of Kansas and its municipalities have been they have lifted that stream out of the materially decreased. Against this loss and sandy channel in which it had flowed, and injury the complainant prays the assistance applied it to beneficial uses upon the land; of this court."

27 S. C.-42.

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, tomed to flow before the period of

a perennial stream rising in the irrigation. The effect of the diversion mountains of Colorado and flowing down to of this water in Colorado, the carrying the plains, and this Colorado Arkansas, of it forward on a higher level, the return when the river was permitted to run as it of waters, partly through seepage and partwas accustomed to run, prior to the period ly through direct delivery at waste gates, of irrigation, poured into the sands of west- and the effect of this process in extending ern Kansas, and at times of low water the eastward the perennial flow, will be fully river as a stream entirely disappeared. Its discussed in the course of the argument to waters were to some extent evaporated, and, follow. It is sufficient in this preliminary as to the residue, were absorbed and swal- statement to say that it is admitted by the lowed up in the sands. So that from the complainant that in the course of a twelvevicinity of the state line between Kansas month there is a vast amount of high and and Colorado on eastwardly, as far, at flood waters of the Arkansas that are never least, as Great Bend, if not farther, at such captured by man, that are of no use, but are times of low water there was no flowing Ar- rather of injury to Kansas riparian propriekansas river. Farther east, however, a new tors, and, so far as any beneficial use is river arose, even at such times of low water, concerned, are absolutely wasted and lost. and partly from springs, partly from the Kansas does not claim that she has not drainage of the water table of the country abundance of water in times of flood or in supplied by rainfall, and partly from the times of high water; her complaint is based surface drainage of an extensive territory, upon the alleged fact that she does not this river gradually again became a peren- have what she was accustomed to have in nial stream, so that south of Wichita, and periods of low water, whereas, in fact, as from there on to the mouth of the river the contended by the state of Colorado, the diKansas Arkansas, as a new and separate version of water in Colorado into ditches stream, had a constant flow. Such, as the and reservoirs, continuing, as it does, river was accustomed to flow, was the Ar- throughout the year, in times of flood and kansas of the period prior to irrigation. It in times of high water, has the effect, was a broken river.' It is true that at all' 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 and that the inhabitants of Colorado and depression or suspension of flow."

Kansas within the watershed of the ArkanThe substance of the petition in interven- sas river have, by irrigation from said river, tion is thus stated by counsel for the gov- made productive and profitable about 200,ernment:

000 acres of land, which provide homes for “The first paragraph of the said petition and support a population of many thoudescribes the Arkansas river from its source sands. to its mouth, and alleges that it is not nav- “The eighth paragraph alleges that the igable in the states of Colorado and Kansas common-law doctrine of riparian rights is nor the territory of Oklahoma, but is navi- not applicable to riparian lands within the gable in the state of Arkansas and the In- arid region, and that only by the use of dian territory.

waters of natural streams and flood waters "In the second paragraph it is alleged for irrigation and other beneficial purposes that the lands located within the watershed can the lands in the arid region be made of the river west of the 99th degree of lon- productive, and only by such use can addigitude are arid lands.

tional areas be reclaimed and rendered pro“The third paragraph alleges that within ductive and salable. said watershed there are 1,000,000 acres of “The ninth paragraph recites the passpublic lands that are uninhabitable and un- age of the so-called reclamation act of June salable.

17, 1902. [32 Stat. at L. 388, chap. 1093, "The fourth paragraph alleges that said U. S. Comp. Stat. Supp. 1905, p. 349.] lands can only be made habitable, produc- “The tenth paragraph alleges that about tive, and salable by impounding and storing 60,000,000 acres of land belonging to the flood and other waters in said watershed United States within the arid region can be to the end that the said waters may be reclaimed under the provisions of the soused to reclaim said land.

called reclamation act. “The fifth paragraph alleges that there “The eleventh paragraph alleges that the is not sufficient moisture from rainfall to amount of land that can be so reclaimed render tne soil capable of producing crops in will support a population of many millions. paying quantities in the watershed so de- “The twelfth paragraph alleges that, unscribed, and that they can only be made to der the operation of the said reclamation produce crops by irrigation; that the com- act, 100,000 acres of public land can be mon-law doctrine of riparian rights is not reclaimed within the watershed of the Arapplicable to conditions in the arid region kansas river west of the 99th degree west. and has been abolished by statute and by “The thirteenth paragraph alleges that usage and custom; that there has been es- the lands, when so 'reclaimed, will support tablished in its stead in said region a doc- a population of not less that 50,000. trine to the effect that the waters of natu- “The fourteenth paragraph alleges that, ral streams and the flood and other waters under the operation of the so-called reclamamay be impounded, appropriated, diverted, tion act, about $1,000,000 has been expended and used for the purpose of reclaiming and in exploring, procuring, and setting apart irrigating the arid land, therein, and that sites upon which reservoirs and dams conthe prior appropriation of such waters for templated by the act can be constructed and such purpose gives a prior and superior maintained; that contracts have been let right to the water of the stream.

for the construction of reservoirs which, “The sixth paragraph alleges that legis- when completed, will cost over two millions lation of Congress, decisions of courts, and and will have a storage capacity to reclaim acts of the executive department have sanc- 500,000 acres of arid land, which land when tioned and approved the use of water for reclaimed will sustain a population of not irrigation purposes in the arid region, and less than 250,000; that plans are contemplatthat he who is prior in time is prior in ed for the expenditure of $20,000,000 under right, and that it is recognized that the said act, to irrigate about 1,000,000 acres of common-law doctrine of riparian rights is arid public lands. not applicable to the public land owned by “The fifteenth paragraph recites that the United States in the arid region. there are $16,000,000 available under the

"The seventh paragraph alleges that, in so-called reclamation act. accordance with and in reliance upon the “The sixteenth paragraph sets forth the doctrine of the use of water for irrigation contention of Kansas as seen in its amended purposes, the inhabitants of the arid por- bill of complaint, viz., that it is entitled to tion of the United States have appropriat- have the waters of the Arkansas river, which ed and used the waters of streams therein rises in Colorado, flow uninterrupted and to reclaim and make productive and profit- unimpeded into Kansas. able about 10,000,000 acres of land, which “The seventeenth paragraph sets forth the

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