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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, liberal construction to the language, aiming ever to show fidelity to the spirit and purpose."

This very matter of the reclamation of arid lands illustrates this: At the time of the adoption of the Constitution, within the known and conceded limits of the United States there were no large tracts of arid land, and nothing which called for any further action than that which might be taken by the legislature of the state in which any particular tract of such land was to be found; and the Constitution, therefore, makes no provision for a national control of the arid regions or their reclamation. But, as our national territory has been enlarged, we have within our borders extensive tracts of arid lands which ought to be reclaimed, and it may well be that no power is adequate for their reclamation other than that of the national government. But, if no such power has been granted, none can be exercised.

It does not follow from this that the national government is entirely powerless in respect to this matter. These arid lands are largely within the territories, and over them, by virtue of the second paragraph of § 3 of article 4, heretofore quoted, or by virtue of the power vested in the national government to acquire territory by treaties, Congress has full power of legislation, subject to no restrictions other than those expressly named in the Constitution, and, therefore, it may legislate in respect to all arid lands within their limits. As to those lands within the limits of the states, at least of the Western states, the national government is the most considerable owner and has power to dispose of and make all needful rules and regulations respecting its property. We do not mean that its legislation can override state laws in respect to the general subject of reclamation. While arid lands are to 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) than those within the limits of the original thirteen; and it would

"It may be observed that the purport of the previous acts is reflexively illustrated by the act of June 17, 1902 (32 Stat. at L. 388, chap. 1093, U. S. Comp. Stat. Supp. 1905, p. 349). That act appropriated the receipts from the sale and disposal of the public lands in certain states and territories to the construction of irrigation works for the reclamation of arid lands. The 8th section of the act is as follows:

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'Sec. 8. That nothing in this act shall be construed as affecting or intending to affect or to in any way interfere with the laws of any state or territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any state, or of the Federal government, or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, That the right to the use of the water acquired under the provisions of this act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right." "

But it is useless to pursue the inquiry further in this direction. It is enough for the purposes of this case that each state has full jurisdiction over the lands within its borders, including the beds of streams and other waters. Martin v. Waddell, 16 Pet. 367, 10 L. ed. 997; Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Goodtitle ex dem. Pollard v. Kibbe, 9 How. 471, 13 L. ed. 220; Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224; St. Louis v. Myers, 113 U. S. 566, 28 L. ed. 1131, 5 Sup. Ct. Rep. 640; Packer v. Bird, 137 U. S. 661, 34 L. ed. 819, 11 Sup. Ct. Rep. 210; Hardin v. Jordan, 140 U. S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838; Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173; Shively v. Bowlby, 152 U. S. 1, 38 L. ed. 331, 14 Sup. Ct. Rep. 548; St. Anthony Falls Water Power Co. v. St. Paul Water Comrs. 168

U. S. 349, 42 L. ed. 497, 18 Sup. Ct. Rep. | that that common law throws light on the 157; Kean v. Calumet Canal & Improv. | meaning and scope of the Constitution of Co. 190 U. S. 452, 47 L. ed. 1134, 23 Sup. Ct. Rep. 651. In Barney v. Keokuk, supra, Mr. Justice Bradley said (p. 338, L. ed. p. 228):

"And since this court, in the case of The Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. ed. 1058, has declared that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reasons for adhering to the old rule as to the proprietorship of the beds and shores of such waters. It properly belongs to the states by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond the limits of high water."

In Hardin v. Jordan, supra, the same justice, after stating that the title to the shore and lands under water is in the state, added (pp. 381, 382, L. ed. p. 433, Sup. Ct. Rep. p. 812):

.

the necessities and uses of commerce.

the United States, and is also in many states expressly recognized as of controlling force in the absence of express statute. As said by Mr. Justice Gray in United States v. Wong Kim Ark, 169 U. S. 649, 654, 42 L. ed. 890, 893, 18 Sup. Ct. Rep. 456, 459:

"In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162, 22 L. ed. 627; Ex parte Wilson, 114 U. S. 417, 422, 29 L. ed. 89, 91, 5 Sup. Ct. Rep. 935; Boyd v. United States, 116 U. S. 616, 624, 625, 29 L. ed. 746, 748, 749, 6 Sup. Ct. Rep. 524; Smith v. Alabama, 124 U. S. 465, 31 L. ed. 508, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564. The language of the Constitution, as has been well said, could

not be understood without reference to the common law. 1 Kent, Com. 336; Bradley, J., in Moore v. United States, 91 U. S. 270, 274, 23 L. ed. 346, 347."

In the argument on the demurrer counsel 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. 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. 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), and Colorado, by its legislation, has recognized the right of appropriating the flowing waters to the purposes of irrigation. Now the question arises between two states, one recognizing generally the common-law rule of riparian rights and the other prescribing the doctrine of the public ownership of flowing water. Neither state can legislate for, or impose its own policy upon the other. A stream flows through the two and a controversy is presented as to the flow of that stream. It does not follow, however, that because Congress cannot determine the rule which shall control between the two states, or because neither state can enforce its own policy upon the other, that the controversy ceases to be one of a justiciable nature, or that there is no power which can take cognizance of the controversy and determine the relative rights of the two states. Indeed, the disagreement, coupled with its effect upon a stream passing through the two states, makes a matter for investigation and determination by this court. It has been said that there is no common law of the

This right of the states to regulate and control the shores of tide waters, and the land under them, is the same as that which is exercised by the Crown in England. In this country the same rule has been extended to our great navigable lakes, which are treated as inland seas; and also, in some of the states, to navigable rivers, as the Mississippi, the Missouri, the Ohio, and, in Pennsylvania, to all the permanent rivers of the state; but it depends on the law of each state to what waters and to what extent this prerogative of the state over the lands under water shall be exercised."

It 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 appropriation of waters for the purposes of irrigation shall control. Congress cannot enforce either rule upon any state. It is undoubtedly true that the early settlers brought to this country the common law of England, and

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 of international law. International law is no alien in this tribunal. In The Paquete Habana, 175 U. S. 677, 700, 44 L. ed. 320, 328, 20 Sup. Ct. Rep. 290, 299, Mr. Justice Gray declared:

And in delivering the opinion in the demurrer in this case Chief Justice Fuller said (p. 146, L. ed. p. 846, Sup. Ct. Rep. p. 560):

"Properly understood, no exceptions can be taken to declarations of this kind. There is no body of Federal common law separate and distinct from the common law existing in the several states in the sense that there 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 commercial transactions are subject to no rules and burdened by no restrictions other than those expressed in the statutes of Congress. Can it be that the great multitude of interstate commercial transactions are freed from the burdens created by the common law, as so defined, and are subject to no rule except that to be found in the statutes of Congress? We are clearly of opinion that this cannot be so, and that the principles of the common law are operative upon all interstate commercial transactions, except so far as they are modified by congressional enactment."

"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."

One cardinal rule, underlying all the relations of the states to each other, is that of equality of right. Each state stands on the same level with all the rest. It can impose its own legislation on no one of the others, and is bound to yield its own views to none. 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, into the territory of another state, the question of the extent and the limitations of the rights of the two states becomes a mat

"The common law includes those principles, usages, and rules of action applicable to the government and security of persons and property, which do not rest for theirter of justiciable dispute between them, and authority upon any express and positive declaration of the will of the legislature."

As it does not rest on any statute or other written declaration of the sovereign, there must, as to each principle thereof, be a first statement. Those statements are found in the decisions of courts, and the first statement presents the principle as certainly as the last. Multiplication of declarations merely adds certainty. For after all, the common law is but the accumulated expressions of the various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes. As Congress cannot make compacts between the states, as it cannot, in respect to certain matters, by legislation compel their separate action, disputes between them must be settled either

this court is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them. In other words, through these successive disputes and decisions this court is practically building up what may not improperly be called interstate common law. This very case presents a significant illustration. Before either Kansas or Colorado was settled the Arkansas river was a stream running through the territory which now composes these two states. Arid lands abound in Colorado. Reclamation is possible only by the application of water, and the extreme contention of Colorado is that it has a right to appropriate all the waters of this stream for the purposes of irrigating its soil and making more valuable its own territory.

It is

But the appropriation of the entire flow of, evading the provisions of the 11th Amendthe river would naturally tend to make the ment to the Federal Constitution. 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.

It will be perceived that Kansas asserts a pecuniary interest as the owner of certain tracts along the banks of the Arkansas and as the owner of the bed of the stream. We need not stop to consider what rights such private ownership of property might give. In deciding this case on demurrer we said, referring to the opinion in Missouri v. Illinois (p. 142, L. ed. p. 844, Sup. Ct. Rep. p. 558):

secure as far as possible to Colorado the benefits of irrigation without depriving Kansas of the like beneficial effects of a flowing stream. A little reflection will make this clear. Suppose the controversy was between two individuals, upper and lower riparian owners on a little stream with rocky bank and rocky bottom. The question properly might be limited to the single one of the diminution of the flow by the upper riparian proprietor. The lower riparian proprietor might insist that he was entitled to the full, undiminished, and unpolluted flow of the water of the stream as it had been wont to run. It would not be a defense on the part of the upper riparian proprietor that, by the use to which he had appropriat

"As will be perceived, the court there ruled that the mere fact that a state had no pecuniary interest in the controversy would not defeat the original jurisdiction of this court, which might be invoked by the state as parens patriæ, trustee, guardian, or representative of all or a considered the water, he had benefited the lower proable portion of its citizens; and that the threatened pollution of the waters of a river flowing between states, under the authority of one of them, thereby putting the health and comfort of the citizens of the other in jeopardy, presented a cause of action justiciable under the Constitution.

"In the case before us, the state of Kansas files her bill as representing and on behalf of her citizens, as well as in vindication of her alleged rights as an individual owner, and seeks relief in respect of being deprived of the waters of the river accustomed to flow through and across the state, and the consequent destruction of the property of herself and of her citizens and injury to their health and comfort. The action complained of is state action, and not the action of state officers in abuse or excess of their powers."

It is the state of Kansas which invokes the action of this court, charging that, through the action of Colorado, a large portion of its territory is threatened with disaster. In this respect it is in no manner

prietor, or that the latter had received in any other respects an equivalent. The question would be one of legal right, narrowed to place, amount of flow, and freedom from pollution.

We do not intimate that entirely different considerations obtain in a controversy between two states. Colorado could not be upheld in appropriating the entire flow of the Arkansas river, on the ground that it is willing to give, and does give, to Kansas, something else which may be considered of equal value. That would be equivalent to this court's making a contract between the two states, and that it is not authorized to do. But we are justified in looking at the question not narrowly and solely as to the amount of the flow in the channel of the Arkansas river, inquiring merely whether any portion thereof is appropriated by Colorado, but we may properly consider what, in case a portion of that flow is appropriated by Colorado, are the effects of such appropriation upon Kansas territory. For instance, if there be many thousands of acres in Colo

tation, there will move eastward from Colorado an extension of the area of arable lands until, between the Missouri river and the mountains of Colorado, there shall be no land which is not as fully subject to cultivation as lands elsewhere in the country? Will not the productiveness of Kansas as a whole, its capacity to support an increasing population, be increased by the use of the water in Colorado for irrigation? May we not consider some appropriation by Colorado of the waters of the Arkansas to the irrigation and reclamation of its arid lands as a reasonable exercise of its sovereignty, and as not unreasonably trespassing upon any rights of Kansas? And here we must notice the local law of Kansas as declared by its supreme court, premising that the views expressed in this opinion are to be confined to a case in which the facts and the local law of the two states are as here disclosed. In Clark v. Allaman, 71 Kan. 206, 70 L.R.A. 971, 80 Pac. 571, is an exhaustive discussion of the question, Mr. Justice Burch delivering the unanimous opinion of the court. In the syllabus, which by statute (Kan. Comp. Laws, § 14, p. 317) is prepared by the justice writing the opinion, and states the law of the case, are these paragraphs:

rado destitute of vegetation, which, by
the taking of water from the Arkansas
river, and in no other way, can be made
valuable as arable lands producing an
abundance of vegetable growth, and this
transformation of desert land has the
effect, through percolation of water in
the soil, or in any other way, of giving
to Kansas territory, although not in the
Arkansas valley, a benefit from water as
great as that which would inure from keep-
ing the flow of the Arkansas in its channel
undiminished, then we may rightfully re-
gard the usefulness to Colorado as justify-
ing its action, although the locality of the
benefit from the flow of the Arkansas
through Kansas has territorially changed.
Science may not as yet be able to give posi-
tive information as to the processes by
which the distribution of water over certain
territory has operation beyond the mere lim-
its of the area in which the water is dis-
tributed, but they who have dwelt in the
West know that there are constant changes
in the productiveness of different portions of
the territory, owing, apparently, to a wider
and more constant distribution of water.
To illustrate, the early settlers of Kansas
territory found that farming was unsuccess-
ful unless confined to its eastern 100 or 120
miles. West of that crops were almost al-
ways a failure; but now that region is the
home of a large population, with crops as
certain as those elsewhere, and yet this
change has not been brought about by irri-
gation. A common belief is that the origi-prietor.
nal sod was largely impervious to water;
that when the spring rains came the water,
instead of sinking into the ground, filled the
water courses to overflowing and ran off to
the Gulf of Mexico. There was no water in
the soil to go up in vapor and come down
in showers, and the constant heat of sum-
mer destroyed the crops; but after the sod
had once been turned the water from those
rains largely sank into the ground, and then,
as the summer came on, went up in vapor
and came down in showers, and so, by con-
tinued watering, prevented the burning up
of the growing crops. We do not mean to
say that science has demonstrated this to be
the operating cause, or that other theories
are not propounded, but the fact is that, in-
stead of stopping at a distance of 120 miles
from the Missouri river, the area of culti-
vated and profitably cultivated land has ex-
tended from 150 to 200 miles further west,
and seems to be steadily moving towards the
western boundary of the state. Now, if
there is this change gradually moving west-
ward from the Missouri river, is it altogeth-
er an unreasonable expectation that, as the
arid lands of Colorado are irrigated and be-
come from year to year covered with vege-

"The use of the water of a running stream for irrigation, after its primary uses for quenching thirst and other domestic requirements have been subserved, is one of the common-law rights of a riparian pro

"The use of water by a riparian proprietor for irrigation purposes must be reasonable under all the circumstances, and the right must be exercised with due regard to the equal right of every other riparian owner along the course of the stream.

"A diminution of the flow of water over riparian land, caused by its use for irrigation purposes by upper riparian proprietors, occasions no injury for which damages may be allowed unless it results in subtracting from the value of the land by interfering with the reasonable uses of the water which the landowner is able to enjoy.

"In determining the quantity of land tributary to and lying along a stream which a single proprietor may irrigate, the principle of equality of right with others should control, irrespective of the accidental matter of governmental subdivisions of the land."

And in the opinion, on pages 242, 243, L.R.A. pp. 986, 987, Pac. p. 584, are quoted these observations of Chief Justice Shaw in the case of Elliot v. Fitchburg R. Co. 10 Cush. 191, 193, 196, 57 Am. Dec. 85, 87, 88:

"The right to flowing water is now well settled to be a right incident to property in the land; it is a right publici juris, of such

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