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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, would be of great and manifest injury to those below, who need it for domestic supply or watering cattle; and therefore it would be an unreasonable use of the water, and an action would lie in the latter case, and not in the former. It is, therefore, to a considerable extent a question of degree; still, the rule is the same, that each proprietor has a right to a reasonable use of it, for his own benefit, for domestic use, and for manufacturing and agricultural purposes.

"That a portion of the water of a stream may be used for the purpose of irrigating land, we think is well established as one of the rights of the proprietors of the soil along or through which it passes. Yet a proprietor cannot, under color of that right, or for the actual purpose of irrigating his own land, wholly abstract or divert the water course, or take such an unreasonable quantity of water, or make such unreasonable use of it, as to deprive other proprietors of the substantial benefits which they might derive from it, if not diverted or used unreasonably.

"This rule, that no riparian proprietor can wholly abstract or divert a water course, by which it would cease to be a running stream, or use it unreasonably in its passage, and thereby deprive a lower proprietor of a quality of his property deemed in law incidental and beneficial, necessarily flows from the principle that the right to the reasonable and beneficial use of a running stream is common to all the riparian proprietors, and so each is bound so to use his common right as not essentially to prevent or interfere with an equally beneficial enjoyment of the common right by all the proprietors.

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"The right to the use of flowing water is publici juris, and common to all the ri

purposes of irrigation. The Arkansas river, from its source to the eastern end of the Royal gorge, is a mountain torrent, coming down between rocy banks and over a rocky bed. Along this distance it is of comparatively little use for irrigation purposes. After it debouches from the Royal gorge it enters a valley, in which it wanders from one side to the other through eastern Colorado, southwestern Kansas, and into Oklahoma, with but a slight descent, and presenting but little opportunities for the development of water power through falls or by dams. Its length in Kansas is about 350 miles, and the descent is only 2,320 feet, or less than 7 feet to a mile. There are sub

stantially no falls, no narrow passageways in which dams can be readily constructed for the development of water power; and while there are some in eastern Colorado, yet they are of little elevation, and mainly to assist in the storing of water for purposes of irrigation. So that, if the extreme rule of the common law were enforced, Oklahoma, having the same right to insist that there should be no diversion of the stream in Kansas for the purposes of irrigation that Kansas has in respect to Colorado, the result would be that the waters, except for the meager amount required for domestic purposes, would flow through eastern Colorado and Kansas of comparatively little advantage to either state, and both would lose the great benefit which comes from the use of the water for irrigation. The drainage area of the Arkansas river in Colorado is 26,000 suqare miles; in Kansas, 20,000 square miles; and all this area, unless the stream can be used for purposes of irrigation, would be left to the slow development which comes from the cultivation of the soil.

The testimony in this case is voluminous, amounting to 8,559 typewritten pages, with 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 already too long; and yet some facts must be stated to indicate the basis for the conclusion to which we have come. It must also be noted that, as might be expected in such a volume of testimony, coming as it does from three hundred and forty-seven witnesses, there is no little contradiction and a good deal of confusion, and this contradiction is to be found, not merely in the testimony of witnesses, but also in the exhibits, among which are reports from the officials of the government and the two states. We have endeavored to deduce from this volume those matters which seem most clearly proved, and must, as to other matters, be content to generalize and state that which seems to be the tendency of the evidence.

Colorado is divided into five irrigating divisions, each of which is in charge of a division engineer. That which includes the drainage area of the Arkansas is District No. 2, divided into eleven districts. Under the laws of Colorado, irrigating ditches have been established in this district and the amount of water which each may take from the river decreed. In addition some reservoirs have been built for storing the surplus waters which come down in times of flood, and this adds largely to the amount available for irrigation. The storage capacity of six of these reservoirs is shown to be 8,527,673,652 cubic feet. The significance and value of these reservoirs can be appreciated when we remember that the Arkansas, like many other streams, has its origin in the mountain districts of Colorado, and that, by the melting of the snows, almost every year there is a flood. The amount of water authorized to be taken by the ditches from the river is, as alleged in the bill, 4,200 cubic feet, and from its affluents and tributaries 4,300 feet. (Whenever this term is used in reference to the flow of water it means the number of cubic feet that pass in a second.) The average flow of the river as it comes out of the Royal gorge at Cañon City is, as shown by official measurements for a series of years, 750 cubic feet. So that it appears that the irrigating ditches are authorized

to take from the Arkansas river much more water than passes in the channel into the valley. It is not clear what surplus water, if any, comes out of the tributaries. There are some twenty-five of them, the average flow from four of which into the Arkansas is 313 cubic feet. Aside from this surplus water some may be returned through overflow of the ditches or from seepage. What either of these amounts may be is not disclosed. Indeed, the extent to which seepage operates in adding to the flow of a stream, or in distributing water through lands ad

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is something proof of which must necessarily be almost impossible. We may note the fact that a tract bordering upon land which has been flooded shows by its increasing vegetation that it has received in some way the benefit of water, and yet the amount of water passing by seepage may never be definitely known. The underground movement of water will always be a problem of uncertainty. We know that when water is turned upon dry and barren soil the barrenness disappears, vegetation is developed, and that which was a desert becomes a garden. It is the magic of transformation; the wilderness budding and blossoming as the rose. The writer of this opinion recalls a conversation with Bayard Taylor, the celebrated traveler, in which the latter stated that nothing had contributed so much to secure the steady control of the French in Algiers as the fact that, after taking possession of that territory, they sank artesian wells on the borders of the desert, and thus reclaimed portions of it; for the Arabs believed that people who could reclaim the desert were possessed of a power that could not be withstood.

Further, adjacent barren ground is slowly but surely affected, and itself begins to increase its vegetation. We may not be entirely sure as to the methods by which this change is accomplished, although the result is undoubted. It may be that water percolating under the surface has reached this adjacent ground. Perhaps the vegetation, which we know attracts moisture from the air, may increase the rainfall, and thus affect the adjacent barren regions.

It appears that prior to 1885 there was comparatively little water taken from the Arkansas for irrigation purposes,-certainly not enough to make any perceptible impression on the flow of the river, but about that time certain corporations commenced the work of irrigation on a large scale, with ditches some of which might well be called canals. Thus, in 1884, work was commenced on ditches capable of carrying off 450 cubic feet; in 1887 others capable of carrying off 1,481 cubic feet; and in 1890 still others, carrying 1,705 cubic feet. Most of these were

completed within two years after the com

mencement of the several works. By the year 1902, according to the report of the Census Bureau of the United States, there were 300,115 acres, in 4,557 farms, actually irrigated.

The counties in Colorado from Cañon City eastward through which the Arkansas runs are Fremont, Pueblo, Otero, Bent, and Prowers. The following tables prepared by the defendants from various census reports show the population, number of acres cul

tivated, and total value of farm products | that it has had in Kansas, and that the barin these several counties for the years 1880, renness which characterized portions of the 1890, and 1900: territory of Colorado would have continued

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rigation.

Turning to Kansas, the counties along the Arkansas river, commencing from the Colorado line, are: Hamilton, Kearney, Finney, Gray, Ford, Edwards, Pawnee, Barton, Rice, Reno, Sedgwick, Sumner, Cowley. Taking the same years as are given for the Colorado counties, the population is shown to be:

These tables disclose a very marked de- | for an indefinite time unless relieved by irvelopment in the population, area of land cultivated, and amount of agricultural products. Whatever has been effective in bringing about this development is certainly entitled to recognition, and should not be wantonly or unnecessarily destroyed or interfered with. That this development is largely owing to irrigation is something of which, from a consideration of the testimony, there can be no reasonable doubt. It has been a prime factor in securing this result, and before, at the instance of a sister state, this effective cause of Colorado's development is destroyed or materially interfered with, it should be clear that such sister state has not merely some technical right, but also a right with a corresponding benefit.

It may be asked why cultivation in Colorado without irrigation may not have the same effect that has attended the cultivation in Kansas west of where it was productive when the territory was first settled. It may possibly have such effect to some degree, but it must be remembered that the land in Colorado is many hundred feet in elevation above that in Kansas; that large portions of it are absolutely destitute of sod, and that cultivation would have comparatively little effect upon the retention of water. Add further the fact that the rainfall in Colorado is less than that in Kansas, and it would seem almost certain that reliance upon mere cultivation of the soil would not have anything like the effect in Colorado

Population

County

1880

1890

1900

Hamilton

168

2,027

1,426

Kearney

159

1,571

1,107

Finney

3,350

3,469

Gray
Ford

2,415

1,264

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Edwards

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Pawnee
Barton
Rice.

Reno
Sumner
Sedgwick
Cowley.

12,826 27,079 18,753 43,626 44,037 20,812 30.271 25,631 21,538 34,478 30,156 101,793 186,552 178,909

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YEAR

Acreage and Production of Corn and Wheat in Kansas-13 Counties.

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Totals....

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Totals......

1,025,799 22,159,038

1,073,353 3,149,731

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YEAR

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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 all 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 detrithis 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 that territory, coming from all parts of the West, and especially from the state of Kansas, induced by glowing reports of its great possibilities. The population of Oklahoma, as shown by the United States census, was, in 1890, 61,834, and in 1900, 348,331.

Turning to the tables of the corn and wheat products, they do not disclose any marked injury which can be attributed to a diminution of the flow of the river. While there is a variance in the amount produced in the different counties from year to year, it is a variance no more than that which will be found in other parts of the Union, and although the population from 1890 to 1900 in fact diminished, the amount of both the corn and wheat product largely increased. Not only was the total product increased, but the productiveness per acre seems to have been materially improved. Take the corn crop, and per acre, it was, in 1890, 12 bushels and a fraction; in 1895, 21 and a fraction; in 1900, 15; and in 1904, 28 bushels. Of wheat, the product per acre in 1890 was nearly 15 bushels; in 1895 it was only about 3 bushels. (For some reason, while that was a good year for corn, it seems to have been a bad year for wheat.) But in 1900 the product per acre rose to 19 bushels, and in 1904 it was 12 bushels.

Many other matters have been presented and discussed. We have examined and fully considered them, but, as heretofore stated, we shall have to content ourselves with merely general observations respecting them. Evidence has been offered of an alleged underflow of the river as it passes through the state of Kansas, and it seems to be the contention on the part of Kansas that beneath the surface there is, as it were, a second river, with the same course as that on the surface, but with a distinct and continuous flow as of a separate stream. We are of the opinion that the testimony does not warrant the finding of such second and subterranean stream. If the bed of a stream is not solid rock, but earth, through which water will percolate, and, as alleged in plaintiff's bill, the "valley of the river in the state of Kansas is composed of sand covered with alluvial soil," undoubtedly water will be found many feet below the surface, and the lighter the soil the more easily will it find its way downward and the more water will be discoverable by wells or other modes of exploring the subsurface. Undoubtedly, too, in many cases there may be, corresponding to the flow on the surface, a current beneath the surface; but the presence of such subsurface water, even though in places of considerable amount and runThese 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 will always be found bebeing 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

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