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placed upon the power of Congress, that, be strange if, in the absence of a definite prohibition or limitation should be enforced grant of power, the national government in its spirit and to its entirety. It would could enter the territory of the states along be a strange rule of construction that lan- the Atlantic and legislate in respect to imguage granting powers is to be liberally proving, by irrigation' or otherwise, the construed, and that language of restriction lands within their borders. Nor do we is to be narrowly and technically construed. understand that hitherto Congress has actEspecially is this true when, in respect to ed in disregard to this limitation. As said grants of powers, there is, as heretofore no by Mr. Justice White, delivering the opinion ticed, the help found in the last clause of of the court in Gutierres v. Albuquerque the 8th section, and no such helping clause Land & Irrig. Co. 188 U. S. 545, 554, 47 in respect to prohibitions and limitations. L. ed. 588, 593, 23 Sup. Ct. Rep. 338, 341, The true spirit of constitutional interpreta- after referring to previous legislation: tion in both directions is to give full, lib- “It may be observed that the purport of eral construction to the language, aiming the previous acts is reflexively illustrated ever to show fidelity to the spirit and pur- | by the act of June 17, 1902 (32 Stat. at L. pose.”
388, chap. 1093, U. S. Comp. Stat. Supp. This very matter of the reclamation of 1905, p. 349). That act appropriated the arid lands illustrates this: At the time of receipts from the sale and disposal of the the adoption of the Constitution, within the public lands in certain states and territories known and conceded limits of the United to the construction of irrigation works for States there were no large tracts of aria the reclamation of arid lands. The 8th secland, and nothing which called for any fur- tion of the act is as follows: ther action than that which might be taken “ 'Sec. 8. That nothing in this act shall by the legislature of the state in which any be construed as affecting or intending to particular tract of such land was to be affect or to in any way interfere with the found; and the Constitution, therefore, laws of any state or territory relating to makes no provision for a national control the control, appropriation, use, or distribuof the arid regions or their reclamation. tion of water used in irrigation, or any But, as our national territory has been en- vested right acquired thereunder, and the larged, we have within our borders exten- Secretary of the Interior, in carrying out sive tracts of arid lands which ought to be the provisions of this act, shall proceed in reclaimed, and it may well be that no power conformity with such laws, and nothing is adequate for their reclamation other than herein shall in any way affect any right of that of the national government. But, if no any state, or of the Federal government, such power has been granted, none can be or of any landowner, appropriator, or user exercised.
of water in, to, or from any interstate It does not follow from this that the na- stream or the waters thereof: Provided, tional government is entirely powerless in that the right to the use of the water acrespect to this matter. These arid lands are quired under the provisions of this act shall largely within the territories, and over be appurtenant to the land irrigated, and them, by virtue of the second paragraph of beneficial use shall be the basis, the meas§ 3 of article 4, heretofore quoted, or by ure, and the limit of the right.' virtue of the power vested in the national But it is useless to pursue the inquiry government to acquire territory by treaties, further in this direction. It is enough for Congress has full power of legislation, sub- the purposes of this case that each state has ject to no restrictions other than those ex. full jurisdiction over the lands within its pressly named in the Constitution, and, there borders, including the beds of streams and fore, it may legislate in respect to all arid other waters. Martin v. Waddell, 16 Pet. lands within their limits. As to those lands 367, 10 L. ed. 997; Pollard v. Hagan, 3 within the limits of the states, at least of How. 212, 11 L. ed. 565; Goodtitle ex dem. the Western states, the national govern-Pollard v. Kibbe, 9 How. 471, 13 L. ed. 220; ment is the most considerable owner and Barney v. Keokuk, 94 U. S. 324, 24 L. ed. has power to dispose of and make all needful | 224; St. Louis v. Myers, 113 U. S. 566, 28 L. rules and regulations respecting its prop- ed. 1131, 5 Sup. Ct. Rep. 640; Packer v. erty. We do not mean that its legislation Bird, 137 U. S. 661, 34 L. ed. 819, 11 Sup. can override state laws in respect to the Ct. Rep. 210; Hardin v. Jordan, 140 U. S. general subject of reclamation. While arid 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, lands are to be found mainly, if not only, 838; Kaukauna Water Power Co. v. Green in the Western and newer states, yet the Bay & M. Canal Co. 142 U. S. 254, 35 L. powers of the national government within ed. 1004, 12 Sup. Ct. Rep. 173; Shively v. the limits of those states are the same (no Bowlby, 152 U. S. 1, 38 L. ed. 331, 14 Sup. greater and no less) than those within the ct. Rep. 548; St. Anthony Falls Water limits of the original thirteen; and it would | Power Co. v. St. Paul Water Comrs. 168 U. S. 349, 42 L. ed. 497, 18 Sup. Ct. Rep. I that that common law throws light on the 157; Kean v. Calumet Canal & Improv. meaning and scope of the Constitutin of Co. 190 U. S. 452, 47 L. ed. 1134, 23 Sup. the United States, and is also in many Ct. Rep. 651. In Barney v. Keokuk, su- states expressly recognized as of controlling pra, Mr. Justice Bradley said (p. 338, L. force in the absence of express statute. ed. p. 228):
As said by Mr. Justice Gray in United "And since this court, in the case of The States v. Wong Kim Ark, 169 U. S. 649, 654, Genesee Chief v. Fitzhugh, 12 How. 443, 13 42 L. ed. 890, 893, 18 Sup. Ct. Rep. 456, 459: L. ed. 1058, has declared that the Great "In this, as in other respects, it must be Lakes and other navigable waters of the interpreted in the light of the common law, country, above as well as below the flow of the principles and history of which were the tide, are, in the strictest sense, entitled familiarly known to the framers of the Conto the denomination of navigable waters, stitution. Minor v. Happersett, 21 Wall. and amenable to the admiralty jurisdiction, 162, 22 L. ed. 627; Ex parte Wilson, 114 there seems to be no sound reasons for ad-U. S. 417, 422, 29 L. ed. 89, 91, 5 Sup. Ct. hering to the old rule as to the proprietor- Rep. 935; Boyd v. United States, 116 U. S. ship of the beds and shores of such waters. 616, 624, 625, 29 L. ed. 746, 748, 749, 6 Sup. It properly belongs to the states by their Ct. Rep. 524; Smith v. Alabama, 124 U. S. inherent sovereignty, and the United States 465, 31 L. ed. 508, 1 Inters. Com. Rep. 804, 8 has wisely abstained from extending (if it Sup. Ct. Rep. 564. The language of the could extend) its survey and grants beyond Constitution, as has been well said, could the limits of high water."
not be understood without reference to the In Hardin v. Jordan, supra, the same jus common law. 1 Kent, Com. 336; Bradley, tice, after stating that the title to the shore J., in Moore v. United States, 91 U. S. 270, and lands under water is in the state, added 274, 23 L. ed. 346, 347.” (pp. 381, 382, L. ed. p. 433, Sup. Ct. Rep. In the argument on the demurrer counsel p. 812):
for plaintiff endeavored to show that Con"Such title being in the state, the lands gress had expressly imposed the common law are subject to state regulation and control, on all this territory prior to its formation under the condition, however, of not inter into states. See also the opinion of the fering with the regulations which may be Supreme Court of Kansas in Clark v. Allamade by Congress with regard to public nav- man, 71 Kan. 206, 70 L.R.A. 971, 80 Pac. igation and commerce.
Sometimes | 571. But when the states of Kansas and large areas so reclaimed are occupied by Colorado were admitted into the Union they cities, and are put to other public or private were admitted with the full powers of local uses, state control and ownership therein sovereignty which belonged to other states being supreme, subject only to the paramount (Pollard v. Hagan and Shively v. Bowlby, authority of Congress in making regulations supra; Hardin v. Shedd, 190 U. S. 508, 519, of commerce, and in subjecting the lands to 47 L. ed. 1156, 1157, 23 Sup. Ct. Rep. 685), the necessities and uses of commerce.
and Colorado, by its legislation, has recogThis right of the states to regulate and nized the right of appropriating the flowing control the shores of tide waters, and the waters to the purposes of irrigation. Now land under them, is the same as that which the question arises between two states, one is exercised by the Crown in England. In recognizing generally the common-law rule this country the same rule has been extend- of riparian rights and the other prescribing ed to our great navigable lakes, which are
the doctrine of the public ownership of flowtreated as inland seas; and also, in some of ing water. Neither state can legislate for, the states, to navigable rivers, as the Mis
or impose its own policy upon the other. sissippi, the Missouri, the Ohio, and, in
A stream flows through the two and a conPennsylvania, to all the permanent rivers of troversy is presented as to the flow of that
stream. the state; but it depends on the law of each because Congress cannot determine the rule
It does not follow, however, that state to what waters and to what extent which shall control between the two states, this prerogative of the state over the lands or because neither state can enforce its own under water shall be exercised."
policy upon the other, that the controversy It may determine for itself whether the ceases to be one of a justiciable nature, or common-law rule in respect to riparian that there is no power which can take cogrights or that doctrine which obtains in the nizance of the controversy and determine arid regions of the West of the appropria- the relative rights of the two states. Intion of waters for the purposes of irrigation deed, the disagreement, coupled with its efshall control. Congress cannot enforce ei- fect upon a stream passing through the two ther rule upon any state. It is undoubtedly states, makes a matter for investigation and true that the early settlers brought to this determination by this court. It has been country the common law of England, and said that there is no common law of the
United States as distinguished from the , by force or else by appeal to tribunals emcommon law of the several states. This con- powered to determine the right and wrong tention was made in Western U. Teleg. Co. thereof. Force, under our system of govv. Call Pub. Co. 181 U. S. 92, 45 L. ed. 765, ernment, is eliminated. The clear language 21 Sup. Ct. Rep. 561, in which it was as- of the Constitution vests in this court the serted that, as Congress, having sole juris- power to settle those disputes. We have diction over interstate commerce, had pre-exercised that power in a variety of inscribed no rates for interstate telegraphic stances, determining in the several instances communications, there was no limit on the the justice of the dispute. Nor is our jurispower of a telegraph company in respect diction ousted, even if, because Kansas and thereto. After referring to the general con Colorado are states sovereign and independtention, we paid (pp. 101, 102, L. ed. pp.ent in local matters, the relations between 770, 771, Sup. Ct. Rep. pp. 564, 565): them depend in any respect upon principles
“Properly understood, no exceptions can of international law. International law is be taken to declarations of this kind. There no alien in this tribunal. In The Paquete is no body of Federal common law separate Habana, 175 U. S. 677, 700, 44 L. ed. 320, and distinct from the common law existing 328, 20 Sup. Ct. Rep. 290, 299, Mr. Justice in the several states in the sense that there Gray declared : is a body of statute law enacted by Con- "International law is part of our law, gress separate and distinct from the body and must be ascertained and administered of statute law enacted by the several states. by the courts of justice of appropriate juBut it is an entirely different thing to hold risdiction as often as questions of right dethat there is no common law in force gen- pending upon it are duly presented for their erally throughout the United States, and determination.” that the countless multitude of interestate And in delivering the opinion in the decommercial transactions are subject to no murrer in this case Chief Justice Fuller said rules and burdened by no restrictions other (p. 146, L. ed. p. 846, Sup. Ct. Rep. p. 560): than those expressed in the statutes of Con- “Sitting, as it were, as an international, gress.
Can it be that the great as well as a domestic, tribunal, we apply multitude of interstate commercial transac- Federal law, state law, and international tions are freed from the burdens created law, as the exigencies of the particular case by the common law, as so defined, and are may demand.” subject to no rule except that to be found in One cardinal rule, underlying all the relathe statutes of Congress? We are clearly of tions of the states to each other, is that of opinion that this cannot be so, and that the equality of right. Each state stands on the principles of the common law are operative same level with all the rest. It can impose upon all interstate commercial transactions, its own legislation on no one of the others, except so far as they are modified by con- and is bound to yield its own views to none. gressional enactment.”
Yet, whenever, as in the case of Missouri v. What is the common law? Kent says Illinois, supra, the action of one state (vol. 1, p. 471):
reaches, through the agency of natural laws, “The common law includes those princi- into the territory of another state, the quesples, usages, and rules of action applicable tion of the extent and the limitations of to the government and security of persons the rights of the two states becomes a mat and property, which do not rest for their ter of justiciable dispute between them, and authority upon any express and positive dec- this court is called upon to settle that dislaration of the will of the legislature." pute in such a way as will recognize the
As it does not rest on any statute or equal rights of both and at the same time other written declaration of the sovereign, establish justice between them. In other there must, as to each principle thereof, be words, through these successive disputes and a first statement. Those statements are decisions this court is practically building found in the decisions of courts, and the up what may not improperly be called infirst statement presents the principle as terstate common law. This very case precertainly as the last. Multiplication of sents significant illustration. Before declarations merely adds certainty. For either Kansas or Colorado was settled the after all, the common law is but the accumu- | Arkansas river
stream running lated expressions of the various judicial tri. through the territory which now composes bunals in their efforts to ascertain what is these two states. Arid lands abound in right and just between individuals in re- Colorado. Reclamation is possible only by spect to private disputes. As Congress can- the application of water, and the extreme not make compacts between the states, as it contention of Colorado is that it has a right cannot, in respect to certain matters, by to appropriate all the waters of this stream legislation compel their separate action, dis- for the purposes of irrigating its soil and putes between them must be settled either making more valuable its own territory.
But the appropriation of the entire flow of evading the provisions of the 11th Amend. the river would naturally tend to make the ment to the Federal Constitution. It is lands along the stream in Kansas less ar- not acting directly and solely for the beneable. It would be taking from the adjacent fit of any individual citizen to protect his territory that which had been the custom riparian rights. Beyond its property rights ary natural means of preserving its arable it has an interest as a state in this large character. On the other hand, the possible tract of land bordering on the Arkansas rivcontention of Kansas, that the flowing water er. Its prosperity affects the general welfare in the Arkansas must, in accordance with of the state. The controversy rises, therethe extreme doctrine of the common law of fore, above a mere question of local private England, be left to flow as it was wont to right and involves a matter of state interflow, no portion of it being appropriated in est, and must be considered from that standColorado for the purposes of irrigation, point. Georgia v. Tennessee Copper Co. 206 U. would have the effect to perpetuate a desert S. 230, 51 L. ed. 1038, 27 Sup. Ct. Rep. 618. condition in portions of Colorado beyond the This changes in some respects the scope power of reclamation. Surely here is a dis- of our inquiry. It is not limited to the pute of a justiciable nature which might and simple matter of whether any portion of the ought to be tried and determined. If the waters of the Arkansas is withheld by Colotwo states were absolutely independent na- rado. We must consider the effect of what tions it would be settled by treaty or by has been done upon the conditions in the reforce. Neither of these ways being prac- spective states, and so adjust the dispute ticable, it must be settled by decision of this upon the basis of equality of rights as to court.
secure as far as possible to Colorado the It will be perceived that Kansas asserts a benefits of irrigation without depriving pecuniary interest as the owner of certain Kansas of the like beneficial effects of a tracts along the banks of the Arkansas and flowing stream. A little reflection will make as the owner of the bed of the stream. We this clear. Suppose the controversy was need not stop to consider what rights such between two individuals, upper and lower private ownership of property might give. riparian owners on a little stream with
In deciding this case on demurrer we said, rocky bank and rocky bottom. The question referring to the opinion in Missouri v. Illi- properly might be limited to the single one nois (p. 142, L. ed. p. 844, Sup. Ct. Rep. p. of the diminution of the flow by the upper 558) :
riparian proprietor. The lower riparian pro“As will be perceived, the court there prietor might insist that he was entitled to ruled that the mere fact that a state had the full, undiminished, and unpolluted flow no pecuniary interest in the controversy of the water of the stream as it had been would not defeat the original jurisdiction wont to run. It would not be a defense on of this court, which might be invoked by the part of the upper riparian proprietor the state as parens patriæ, trustee, guard- that, by the use to which he had appropriatian, or representative of all or a considered the water, he had benefited the lower proable portion of its citizens; and that the prietor, or that the latter had received in threatened pollution of the waters of a river any other respects an equivalent. The flowing between states, under the authority question would be one of legal right, narof one of them, thereby putting the health rowed to place, amount of flow, and freedom and comfort of the citizens of the other in from pollution. jeopardy, presented a cause of action jus- We do not intimate that entirely differticiable under the Constitution.
ent considerations obtain in a controversy "In the case before us, the state of Kansas between two states. Colorado could not be files her bill as representing and on behalf upheld in appropriating the entire flow of of her citizens, as well as in vindication of the Arkansas river, on the ground that it is her alleged rights as an individual owner, willing to give, and does give, to Kansas, and seeks relief in respect of being de- something else which may be considered of priveu of the waters of the river accustomed equal value. That would be equivalent to to flow through and across the state, and this court's making a contract between the the consequent destruction of the property two states, and that it is not authorized to of herself and of her citizens and injury to do. But we are justified in looking at the their health and comfort. The action com- question not narrowly and solely as to the plained of is state action, and not the action amount of the flow in the channel of the of state officers in abuse or excess of their Arkansas river, inquiring merely whether powers."
any portion thereof is appropriated by ColoIt is the state of Kansas which invokes rado, but we may properly consider at, in the action of this court, charging that, case a portion of that flow is appropriated through the action of Colorado, a large por- by Colorado, are the effects of such approtion of its territory is threatened with dis- | priation upon Kansas territory. For instance, aster. In this respect it is in no manner if there be many thousands of acres in Colo
rado destitute of vegetation, which, by, tation, there will move eastward from Colothe taking of water from the Arkansas rado an extension of the area of arable lands river, and in no other way, can be made until, between the Missouri river and the valuable as arable lands producing an mountains of Colorado, there shall be no abundance of vegetable growth, and this land which is not as fully subject to cultitransformation of desert land has the vation as lands elsewhere in the country! effect, through percolation of water in Will not the productiveness of Kansas as a the soil, or in any other way, of giving whole, its capacity to support an increasto Kansas territory, although not in the ing population, be increased by the use of Arkansas valley, a benefit from water as the water in Colorado for irrigation? May great as that which would inure from keep- we not consider some appropriation by Coloing the flow of the Arkansas in its channel rado of the waters of the Arkansas to the undiminished, then we may rightfully re- irrigation and reclamation of its arid lands gard the usefulness to Colorado as justify- as a reasonable exercise of its sovereignty, ing its action, although the locality of the and as not unreasonably trespassing upon benefit from the flow of the Arkansas any rights of Kansas ? And here we must through Kansas has territorially changed. notice the local law of Kansas as declared Science may not as yet be able to give posi- by its supreme court, premising that the tive information as to the processes by views expressed in this opinion are to be which the distribution of water over certain confined to a case in which the facts and the territory has operation beyond the mere lim- local law of the two states are as here disits of the area in which the water is disclosed. In Clark v. Allaman, 71 Kan. 206, tributed, but they who have dwelt in the 70 L.R.A. 971, 80 Pac. 571, is an exhaustive West know that there are constant changes discussion of the question, Mr. Justice in the productiveness of different portions of Burch delivering the unanimous opinion of the territory, owing, apparently, to a wider the court. In the syllabus, which by statute and more constant distribution of water. (Kan. Comp. Laws, $ 14, p. 317) is prepared To illustrate, the early settlers of Kansas by the justice writing the opinion, and territory found that farming was unsuccess-states the law of the case, are these paraful unless confined to its eastern 100 or 120 graphs: miles. West of that crops were almost al- “The use of the water of a running ways a failure; but now that region is the stream for irrigation, after its primary uses home of a large population, with crops as for quenching thirst and other domestic recertain as those elsewhere, and yet this quirements have been subserved, is one of change has not been brought about by irri- the common-law rights of a riparian progation. A common belief is that the origi- prietor. nal sod was largely impervious to water; “The use of water by a riparian propriethat when the spring rains came the water, tor for irrigation purposes must be reasoninstead of sinking into the ground, filled the able under all the circumstances, and the water courses to overflowing and ran off to right must be exercised with due regard to the Gulf of Mexico. There was no water in the equal right of every other riparian ownthe soil to go up in vapor and come down er along the course of the stream. in showers, and the constant heat of sum- “A diminution of the flow of water over mer destroyed the crops; but after the sod riparian land, caused by its use for irrigahad once been turned the water from those tion purposes by upper riparian proprietors, rains largely sank into the ground, and then, occasions no injury for which damages may as the summer came on, went up in vapor be allowed unless it results in subtracting and came down in showers, and so, by con- from the value of the land by interfering tinued watering, prevented the burning up with the reasonable uses of the water which of the growing crops. We do not mean to the landowner is able to enjoy. say that science has demonstrated this to be “In determining the quantity of land tribthe operating cause, or that other theories utary to and lying along a stream which a are not propounded, but the fact is that, in single proprietor may irrigate, the principle stead of stopping at a distance of 120 miles of equality of right with others should confrom the Missouri river, the area of culti-trol, irrespective of the accidental matter vated and profitably cultivated land has ex- of governmental subdivisions of the land." tended from 150 to 200 miles further west, And in the opinion, on pages 242, 243, and seems to be steadily moving towards the L.R.A. pp. 986, 987, Pac. p. 584, are quoted western boundary of the state. Now, if these observations of Chief Justice Shaw in there is this change gradually moving west- the case of Elliot v. Fitchburg R. Co. 10 ward from the Missouri river, is it altogeth. Cush. 191, 193, 196, 57 Am. Dec. 85, 87, 88: er an unreasonable expectation that, as the “The right to flowing water is now well arid lands of Colorado are irrigated and be settled to be a right incident to property in come from year to year covered with vege- the land; it is a right publici juris, of such