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character that, whilst it is common and parian proprietors; it is not an absolute and equal to all through whose land it runs, and exclusive right to all the water flowing past no one can obstruct or divert it, yet, as one their land, so that any obstruction would of the beneficial gifts of Providence, each give a cause of action; but it is a right to proprietor has a right to a just and reason the flow and enjoyment of the water, subject able use of it, as it passes through his land; to a similar right in all the proprietors, to and so long as it is not wholly obstructed the reasonable enjoyment of the same gift or diverted, or no larger appropriation of of Providence. It is, therefore, only for an the water running through it is made than abstraction and deprivation of this common a just and reasonable use, it cannot be said benefit, or for an unreasonable and unauto be wrongful or injurious to a proprietor thorized use of it, that an action will lie.” lower down. What is such a just and rea- As Kansas thus recognizes the right of sonable use may often be a difficult ques- appropriating the waters of a stream for the tion, depending on various circumstances. purposes of irrigation, subject to the conTo take a quantity of water from a large dition of an equitable division between the running stream for agriculture or manufac- riparian proprietors, she cannot complain if turing purposes would cause no sensible or the same rule is administered between herpracticable diminution of the benefit, to the self and a sister state. And this is especialprejudice of a lower proprietor; whereas, ly true when the waters are, except for dotaking the same quantity from a small run- mestic purposes, practically useful only for ning brook, passing through many farms, purposes of irrigation. The Arkansas river, would be of great and manifest injury to from its source to the eastern end of the those below, who need it for domestic sup- Royal gorge, is a mountain torrent, coming ply or watering cattle; and therefore it down between rocy banks and over a rocky would be an unreasonable use of the water, bed. Along this distance it is of comparaand an action would lie in the latter case, tively little use for irrigation purposes. Afand not in the former. It is, therefore, to a ter it debouches from the Royal gorge it enconsiderable extent a question of degree; ters a valley, in which it wanders from one still, the rule is the same, that each pro- side to the other through eastern Colorado, prietor has a right to a reasonable use of it, southwestern Kansas, and into Oklahoma, for his own benefit, for domestic use, and for with but a slight descent, and presenting manufacturing and agricultural purposes. but little opportunities for the develop
ment of water power through falls or by “That a portion of the water of a stream dams. Its length in Kansas is about 350 may be used for the purpose of irrigating miles, and the descent is only 2,320 feet, or land, we think is well established as one of less than 7 feet to a mile. There are subthe rights of the proprietors of the soil stantially no falls, no narrow passageways along or through which it passes. Yet a in which dams can be readily constructed proprietor cannot, under color of that right, for the development of water power; and or for the actual purpose of irrigating his while there are some in eastern Colorado, own land, wholly abstract or divert the yet they are of little elevation, and mainly water course, or take such an unreasonable to assist in the storing of water for purquantity of water, or make such unreason- poses of irrigation. So that, if the extreme able use of it, as to deprive other proprie- rule of the common law were enforced, Oktors of the substantial benefits which they lahoma, having the same right to insist that might derive from it, if not diverted or used there should be no diversion of the stream unreasonably.
in Kansas for the purposes of irrigation “This rule, that no riparian proprietor that Kansas has in respect to Colorado, the can wholly abstract or divert a water course, result would be that the waters, except for by which it would cease to be a running the meager amount required for domestic stream, or use it unreasonably in its pass- purposes, would flow through eastern Coloage, and thereby deprive a lower proprietor rado and Kansas of comparatively little adof a quality of his property deemed in law vantage to either state, and both would lose incidental and beneficial, necessarily flows the great benefit which comes from the use from the principle that the right to the rea of the water for irrigation. The drainage sonable and beneficial use of a running area of the Arkansas river in Colorado is stream is common to all the riparian pro- 26,000 suqare miles; in Kansas, 20,000 prietors, and so each is bound so to use his square miles; and all this area, unless the common right as not essentially to prevent stream can be used for purposes of irrigaor interfere with an equally beneficial en- tion, would be left to the slow development joyment of the common right by all the which comes from the cultivation of the soil. proprietors.
The testimony in this case is voluminous, “The right to the use of flowing water is amounting to 8,559 typewritten pages, with publici juris, and common to all the ri- '122 exhibits, and it would be impossible to
make a full statement of facts without an | jacent to those upon which water is poured, extravagant extension of this opinion, which is something proof of which must necesis already too long; and yet some facts must sarily be almost impossible. We may note be stated to indicate the basis for the cun- the fact that a tract bordering upon land clusion to which we have come. It must which has been flooded shows by its increasalso be noted that, as might be expected ing vegetation that it has received in some in such a volume of testimony, coming as it way the benefit of water, and yet the does from three hundred and forty-seven amount of water passing by seepage may witnesses, there is no little contradiction never be definitely known. The underand a good deal of confusion, and this con- ground movement of water will always be tradiction is to be found, not merely in the a problem of uncertainty. We know that testimony of witnesses, but also in the ex. when water is turned upon dry and barren hibits, among which are reports from the soil the barrenness disappears, vegetation officials of the government and the two is developed, and that which was a desert states. We have endeavored to deduce from becomes a garden. It is the magic of transthis volume those matters which seem most formation; the wilderness budding and clearly proved, and must, as to other mat- blossoming as the rose. The writer of this ters, be content to generalize and state that opinion recalls a conversation with Bayard which seems to be the tendency of the evi- Taylor, the celebrated traveler, in which the dence.
latter stated that nothing had contributed Colorado is divided into five irrigating divi- so much to secure the steady control of the sions, each of which is in charge of a division French in Algiers as the fact that, after engineer. That which includes the drainage taking possession of that territory, they area of the Arkansas is District No. 2, di- sank artesian wells on the borders of the vided into eleven districts. Under the laws desert, and thus reclaimed portions of it; of Colorado, irrigating ditches have been for the Arabs believed that people who could established in this district and the amount reclaim the desert were possessed of a power of water which each may take from the riv- that could not be withstood. er decreed. In addition some reservoirs Further, adjacent barren ground is slowly have been built for storing the surplus wat- but surely affected, and itself begins to iners which come down in times of flood, and crease its vegetation. We may not be enthis adds largely to the amount available tirely sure as to the methods by which this for irrigation. The storage capacity of six change is accomplished, although the result of these reservoirs is shown to be 8,527,673,- is undoubted. It may be that water perco652 cubic feet. The significance and value lating under the surface has reached this of these reservoirs can be appreciated when adjacent ground. Perhaps the vegetation, we remember that the Arkansas, like many which we know attracts moisture from the other streams, has its origin in the moun- air, may increase the rainfall, and thus aftain districts of Colorado, and that, by the fect the adjacent barren regions. melting of the snows, almost every year It appears that prior to 1885 there was there is a flood. The amount of water au: comparatively little water taken from the thorized to be taken by the ditches from the Arkansas for irrigation purposes,-certainly river is, as alleged in the bill, 4,200 cubic not enough to make any perceptible impresfeet, and from its affluents and tributaries sion on the flow of the river,-but about 4,300 feet. (Whenever this term is used in that time certain corporations commenced reference to the flow of water it means the the work of irrigation on a large scale, with number of cubic feet that pass in a second.) ditches some of which might well be called The average flow of the river as it comes out canals. Thus, in 1884, work was commenced of the Royal gorge at Cañon City is, as
on ditches capable of carrying off 450 cubic shown by official measurements for a series feet; in 1887 others capable of carrying off of years, 750 cubic feet. So that it appears 1,481 cubic feet; and in 1890 still others, that the irrigating ditches are authorized to take from the Arkansas river much more carrying 1,705 cubic feet. Most of these were to take from the Arkansas river much more completed within two years after the comwater than passes in the channel into the valley. It is not clear what surplus water,
mencement of the several works. By the if any, comes out of the tributaries. There year 1902, according to the report of the are some twenty-five of them, the average
Census Bureau of the United States, there flow from four of which into the Arkansas were 300,115 acres, in 4,557 farms, actually is 313 cubic feet. Aside from this surplus
irrigated. water some may be returned through over
The counties in Colorado from Cañon City flow of the ditches or from seepage. What 'eastward through which the Arkansas runs either of these amounts may be is not dis- are Fremont, Pueblo, Otero, Bent, and closed. Indeed, the extent to which seepage Prowers. The following tables prepared by operates in adding to the flow of a stream, | the defendants from various census reports or in distributing water through lands ad. show the population, number of acres cul
tivated, and total value of farm products that it has had in Kansas, and that the bar. in these several counties for the years 1880, renness which characterized portions of the 1890, and 1900:
territory of Colorado would have continued
These tables disclose a very marked de- | for an indefinite time unless relieved by irvelopment in the population, area of land rigation. cultivated, and amount of agricultural prod- Turning to Kansas, the counties along the ucts. Whatever has been effective in bring. Arkansas river, commencing from the Coloing about this development is certainly en- rado line, are: Hamilton, Kearney, Finney, titled to recognition, and should not be wan-Gray, Ford, Edwards, Pawnee, Barton, Rice, tonly or unnecessarily destroyed or interfered | Reno, Sedgwick, Sumner, Cowley. Taking with. That this development is largely ow- the same years as are given for the Colorado ing to irrigation is something of which, counties, the population is shown to be: from a consideration of the testimony, there can be no reasonable doubt. It has been a prime factor in securing this result, and
Population before, at the instance of a sister state, this County effective cause of Colorado's development is
1880 1890 1900 destroyed or materially interfered with, it should be clear that such sister state has Hamilton
168 2,027 1,426
Kearney not merely some technical right, but also a
159 1,571 1,107 Finney
3,350 3,469 right with a corresponding benefit.
3,122 5,308 5,497
2,409 3,600 3,682 rado without irrigation may not have the Pawnee
5,396 5,204 5,084
Barton same effect that has attended the cultivation
10,318 13,172 13,784 Rice.
9,292 14,451 14,745 in Kansas west of where it was productive Reno
12,8:26 27,079 29,027 when the territory was first settled. It may Sunner
18,753 43,426 44,037
20,812 30,271 25,6 31 possibly have such effect to some degree, but Cowley
30, 156 it must be remembered that the land in
101,793 186,552 178,909 Colorado is many hundred feet in elevation above that in Kansas; that large portions of it are absolutely destitute of sod, and We have been furnished by the United that cultivation would have comparatively States Census Office with statistics of the little effect upon the retention of water. corn and wheat crops of those counties from Add further the fact that the rainfall in the years 1889 to 1904.
the years 1889 to 1904. Corn, wheat, and Colorado is less than that in Kansas, and hay are the leading crops in Kansas. It it would seem almost certain that reliance would unnecessarily prolong this opinion to upon mere cultivation of the soil would not copy these tables in full, so we give the have anything like the effect in Colorado' figures for 1890, 1895, 1900, and 1904:
Acreage and Production of Corn and Wheat in Kansas—13 Counties.
Hamilton Kearney FinneyGray Ford Edwards. Pawnee. Barton.. Rice....... Reno.. Sedgwick. Sumner. Cowley
3,990 11,298 18,195 50,015 145,795 325,416 146,313 261,192
427 4,023 23,416 43,525 115,931 254,130 148,597 110,404 123,339 288,133 79,948
1,550 5,492 4,234 59,615 444,904
696,400 1,969,801 5,081,352 3,120,537 2,097,276 2,589,811 5,761,260 1,439,064
Hamilton... Kearney. Finney Gray.. Ford Edwards Pawnee. Barton. Rice. Reno.. Sedgwick Sumner Cowley
2,297 6,244 87,382 69,590 365,299 1,302,8:34 1,629,246 3,414,731 2,251,838 3,518,752 1,971,255 3,828, 192 821,652
538 1,213 2,001 11,215 25,0:32 16,257 32,649 71, 151 199,150 153,635 102,057 121,398
355,755 1,991,500 2,766,430 2,143,197 2,792,154
759 1,579 10,631 23,396 13,272 26,981 59,851 138,899 132,374 779,808 109,708
1,800 6,120 7,500) 25,264 170,096 584,900 331,800
728,568 1,556,126 4,0:28,071 3,111,724 1,995,200 2,962, 116
536 7,012 17,268 72,917 130,313 162,970 262,673 160,853 207,002 151,635 294,489 68,477
27 S. C.-43.
Comparing the tables of population it will in these western counties, which promised be perceived that both the counties in Colo- to be valuable in supplying water, and thus rado and Kansas made a considerable in increasing the productiveness of the lands in crease in the years from 1880 to 1890; that the vicinity of the stream, and it is true while the Colorado counties continued their that those ditches have ceased to be of much increase from 1890 to 1900, the Kansas value, the flow in them having largely dicounties lost. As the withdrawal of water minished. in Colorado for irrigating purposes became It cannot be denied, in view of alı the tessubstantially effective about the year 1890, timony (for that which we have quoted is it might, if nothing else appeared, not un- but a sample of much more bearing upon reasonably be concluded that the diminished the question), that the diminution of the flow of the river in Kansas, caused by the flow of water in the river by the irrigation action of Colorado, had resulted in making of Colorado has worked some detriment to the land more unproductive, and hence in the southwestern part of Kansas, and yet, duced settlers to leave the state. As against when we compare the amount of this detri. this it should be noted, as a matter of his- ment with the great benefit which has obtory, that in the years preceding 1890, Kan- viously resulted to the counties in Colorado, sas passed through a period of depression, it would seem that equality of right and with crops largely a failure in different equity between the two states forbids any parts of the state. But, more than that, in interference with the present withdrawal of 1889 Oklahoma, lying directly south of Kan- water in Colorado for purposes of irrigasas, was opened for settlement and imme- tion. diately there was a large immigration into Many other matters have been presented that territory, coming from all parts of the and discussed. We have examined and fully West, and especially from the state of Kan- considered them, but, as heretofore stated, sas, induced by glowing reports of its great we shall have to content ourselves with possibilities. The population of Oklahoma, merely general observations respecting them. as shown by the United States census, was, Evidence has been offered of an alleged unin 1890, 61,834, and in 1900, 348,331.
derflow of the river as it passes through Turning to the tables of the corn and the state of Kansas, and it seems to be the wheat products, they do not disclose any contention on the part of Kansas that bemarked injury which can be attributed to a neath the surface there is, as it were, a diminution of the flow of the river. While second river, with the same course as that there is a variance in the amount produced on the surface, but with a distinct and conin the different counties from year to year, tinuous flow as of a separate stream. We it is a variance no more than that which are of the opinion that the testimony does will be found in other parts of the Union, not warrant the finding of such second and and although the population from 1890 to subterranean stream. If the bed of a stream 1900 in fact diminished, the amount of both is not solid rock, but earth, through which the corn and wheat product largely, in water will percolate, and, as alleged in creased. Not only was the total product in plaintiff's bill, the “valley of the river in creased, but the productiveness per acre the state of Kansas is composed of sand seems to have been materially improved. covered with alluvial soil,” undoubtedly Take the corn crop, and per acre, it was, water will be found many feet below the in 1890, 12 bushels and a fraction; in 1895, surface, and the lighter the soil the more 21 and a fraction; in 1900, 15; and in 1904, easily will it find its way downward and the 28 bushels. Of wheat, the product per acre more water will be discoverable by wells or in 1890 was nearly 15 bushels; in 1895 it other modes of exploring the subsurface. was only about 3 bushels. (For some rea- Undoubtedly, too, in many cases there may son, while that was a good year for corn, be, corresponding to the flow on the surface, it seems to have been a bad year for wheat.) a current beneath the surface; but the presBut in 1900 the product per acre rose to ence of such subsurface water, even though 19 bushels, and in 1904 it was 12 bushels. in places of considerable amount and run
These are official figures taken from the ning in the same direction, is something United States census reports, and they tend very different from an independent subsurstrongly to show that the withdrawal of the face river flowing continuously from the water in Colorado for purposes of irrigation Colorado line through the state of Kansas. has not proved a source of serious detriment It is not properly denominated a second and to the Kansas counties along the Arkansas subsurface stream. It is rather to be river. It is not strange that the western regarded as merely the accumulation of counties show the least development, for, water which will always be found be. being nearest the irrigation in Colorado, neath the bed of any stream whose bottom they would be most affected thereby. At is not solid rock. Naturally, the more one time there were some irrigating ditches abundant the flow of the surface stream and