KANSAS V. COLORADO, 206 U. S. 46 (1907)

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U.S. Supreme Court

Kansas v. Colorado, 206 U.S. 46 (1907)

Kansas v. Colorado

No. 3, Original

Argued December, 17-20, 1906

Decided May 13, 1907

206 U.S. 46


Kansas having brought in this Court an original suit to restrain Colorado and certain corporations organized under its laws from diverting the water of the Arkansas River for the irrigation of lands in Colorado, thereby, as alleged, preventing the natural and customary flow of the river into Kansas and through its territory, the United States filed an intervening petition claiming a right to control the waters of the river to aid in the reclamation of arid lands. It was not claimed that the diversion of the waters tended to diminish the navigability of the river.

Held, that:

The government of the United States is one of enumerated powers; that it has no inherent powers of sovereignty; that the enumeration of the powers granted is to be found in the Constitution of the United States, and in that alone; that the manifest purpose of the Tenth Amendment to the Constitution is to put beyond dispute the proposition that all powers not granted are reserved to the people, and that if, in the changes of the years, further powers ought to be possessed by Congress, they must be obtained by a new grant from the people. While Congress has general legislative jurisdiction over the territories, and may control the flow of waters in their streams, it has no power to control a like flow within the limits of a state except to preserve or improve the navigability of the stream; that the full control over those waters is, subject to the exception named, vested in the state. Hence, the intervening petition of the United States is dismissed, without prejudice to any action which it may see fit to take in respect to the use of the water for maintaining or improving the navigability of the river.

The controversy between the parties plaintiff and defendant is one of a justiciable nature. By the Constitution, the entire judicial power of the United States is vested in its courts, specifically included therein being a grant to the Supreme Court of jurisdiction over controversies between two or more states.

In a qualified sense and to a limited extent, the separate states are sovereign and independent, and the relations between them partake something of the nature of international law. This Court in appropriate cases enforces the principles of that law, and in addition, by its decisions of controversies between two or more states, is constructing what may not improperly be called a body of interstate law.

Page 206 U. S. 47

In a suit brought by a state which recognizes the right of riparian proprietors to the use of flowing waters for purposes of irrigation, subject to the condition of an equitable apportionment, against a state which affirms a public right in flowing waters, it is not unreasonable to enforce against the plaintiff its own local rule.

While from the testimony it is apparent that the diversion of the waters of the Arkansas River by Colorado for purposes of irrigation does diminish the volume of water flowing into Kansas, yet it does not destroy the entire flow. The benefit to Colorado in the reclamation of arid lands has been great, and ought not lightly to be destroyed.

The detriment to Kansas by the diminution of the flow of the water, while substantial, is not so great as to make the appropriation of the part of the water by Colorado an inequitable apportionment between the two states.

While a right to present relief is not proved, and this suit is dismissed, it is dismissed without prejudice to the right of Kansas to initiate new proceedings whenever it shall appear that, through a material increase in the depletion of the waters of the Arkansas River by the defendants, the substantial interests of Kansas are being injured to the extent of destroying the equitable apportionment of benefits between the two states.

On May 20, 1901, pursuant to a resolution passed by the Legislature of Kansas (Kan.Laws 1901, c. 425), and upon leave obtained, the State of Kansas filed its bill in equity in this Court against the State of Colorado. To this bill the defendant demurred. After argument on the demurrer, this Court held that the case ought not to be disposed of on the mere averments of the bill, and therefore overruled the demurrer without prejudice to any question defendant might present. Leave was also given to answer. 185 U. S. 185 U.S. 125. In delivering the opinion of the Court, the CHIEF JUSTICE disclosed in the following words the general character of the controversy, and the conclusions arrived at (p. 185 U. S. 145):

"The gravamen of the bill is that the State of Colorado, acting directly herself as well as through private persons thereto licensed, is depriving and threatening to deprive the State of Kansas and its inhabitants of all the water heretofore accustomed to flow in the Arkansas River through its channel on the surface, and through a subterranean course across the State of Kansas; that this is threatened not only by the impounding and the use of the water at the river's source, but as it flows

Page 206 U. S. 48

after reaching the river. Injury, it is averred, is being, and would be, thereby inflicted on the State of Kansas as an individual owner, and on all the inhabitants of the state, and especially on the inhabitants of that part of the state lying in the Arkansas Valley. The injury is asserted to be threatened, and as being wrought, in respect of lands located on the banks of the river, lands lying on the line of a subterranean flow, and lands lying some distance from the river, either above or below ground, but dependent on the river for a supply of water. And it is insisted that Colorado, in doing this, is violating the fundamental principle that one must use his own so as not to destroy the legal rights of another."

"The State of Kansas appeals to the rule of the common law that owners of lands on the banks of a river are entitled to the continual flow of the stream, and while she concedes that this rule has been modified in the Western states so that flowing water may be appropriated to mining purposes and for the reclamation of arid lands, and the doctrine of prior appropriation obtains, yet she says that that modification has not gone so far as to justify the destruction of the rights of other states and their inhabitants altogether, and that the acts of Congress of 1866 and subsequently, while recognizing the prior appropriation of water as in contravention of the common law rule as to a continuous flow, have not attempted to recognize it as rightful to that extent. In other words, Kansas contends that Colorado cannot absolutely destroy her rights, and seeks some mode of accommodation as between them, while she further insists that she occupies, for reasons given, the position of a prior appropriator herself, if put to that contention as between her and Colorado."

"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, and we are unwilling, in this case, to proceed on the mere technical admissions made by the demurrer. Nor do we regard it as necessary, whatever imperfections a close analysis of the pending

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bill may disclose, to compel its amendment at this stage of the litigation. We think proof should be made as to whether Colorado is herself actually threatening to wholly exhaust the flow of the Arkansas River in Kansas; whether what is described in the bill as the 'underflow' is a subterranean stream flowing in a known and defined channel, and not merely water percolating through the strata below; whether certain persons, firms, and corporations in Colorado must be made parties hereto; what lands in Kansas are actually situated on the banks of the river, and what, either in Colorado or Kansas, are absolutely dependent on water therefrom; the extent of the watershed or the drainage area of the Arkansas River; the possibilities of the maintenance of a sustained flow through the control of flood waters -- in short, the circumstances a variation in which might induce the court to either grant, modify, or deny the relief sought or any part thereof."

On August 17, 1903, Kansas filed an amended bill, naming as defendants Colorado and quite a number of corporations, who were charged to be engaged in depleting the flow of water in the Arkansas River. Colorado and several of the corporations answered. For reasons which will be apparent from the opinion, the defenses of these corporations will not be considered apart from those of Colorado. On March 21, 1904, the United States, upon leave, filed its petition of intervention. The issue between these several parties having been perfected by replications, a commissioner was appointed to take evidence, and, after that had been taken and abstracts prepared, counsel for the respective parties were heard in argument, and upon the pleadings and testimony, the case was submitted.

In order that the issue between the three principal parties, Kansas, Colorado, and the United States, may be fully disclosed -- although by so doing we prolong considerably this opinion -- we quote abstracts of the pleadings and statements thereof made by the respective counsel. Counsel for Kansas say:

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"The bill of complaint alleges that the State of Kansas was admitted into the Union on January 29, 1861, that the State of Colorado was admitted on August 1, 1876, and that the other defendants are corporations organized, chartered, and doing business in the State of Colorado; that the Arkansas River rises in the Rocky mountains, in the State of Colorado, and, flowing in a southeasterly direction for a distance of about 280 miles, crosses the boundary into the State of Kansas; that the river then flows in an easterly and southeasterly direction through the State of Kansas for a distance of about 300 miles, then through Oklahoma, Indian Territory, and Arkansas, on its way to the sea. Through the State of Kansas the Arkansas valley is a level plain but a few feet above the normal level of the river, and is from two to twenty-five miles in width. Back to the foothills on either side there are bottomlands which are saturated and sub-irrigated by the underflow from the river, and are fertile and productive almost beyond comparison. The Arkansas River is a meandered stream through the State of Kansas, and under the laws and departmental rules and regulations of the United States it is a navigable river through the State of Kansas, and was in fact navigable and navigated from the City of Wichita south to its mouth, and that the complainant is the owner of the bed of the stream between the meandered lines in trust for the people of the state; that the complainant is the owner of two tracts of land bordering upon the river, one at Hutchinson and one at Dodge City, upon which state institutions are maintained -- one as a reform school and the other as a soldiers' home. That when the State of Kansas was admitted into the Union, it became the owner, for school purposes, of sections 16 and 36 of each congressional township, of which the complainant still owns many thousand acres, much of which borders on the Arkansas River. That by act of Congress of March 3, 1863, the complainant became the owner of each odd-numbered section of land in the Arkansas Valley, and has since conveyed the whole of this land for the purposes specified. That, by the year 1868,

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the land in the Arkansas Valley began to be taken by actual settlers, and by the year 1875, practically all the bottom lands in the east or lower half of the valley were entered and settled, and title obtained from the United States or the State of Kansas, and by the year 1882, the west or upper half of the valley was so entered and settled and like titles obtained. By the year 1873, a railroad was built through the entire length of the valley, and immediately after their settlement, these bottom lands were extensively cultivated, large crops of agricultural products were raised, towns and cities sprang up, population rapidly increased, and by the year 1883, practically all the bottom lands of the Arkansas Valley were in a state of successful and prosperous cultivation; that the waters of the Arkansas River furnished the foundation for this prosperity. These waters furnished a wholesome and ample supply for domestic purposes, for the watering of stock, for power for operating mills and factories, for saturating and sub-irrigating the bottom lands back to the uplands on either side of the river, so that crops thereon were not only bounteous, but practically certain, and in the western portion of the valley these waters were appropriated and used for surface irrigation, to supplant the scanty rainfall in that region. That, by reason of these uses of the waters of the Arkansas River, and the almost unvarying water level beneath these bottom lands being near the surface, the lands in the Arkansas Valley in the State of Kansas were of great and permanent value to the owners and settlers thereon, and those upon the tax rolls of the State of Kansas yielded a large and increasing revenue to the complainant for state purposes."

"That after the lands in the Arkansas Valley had been settled and raised to a high State of cultivation, all the bottom lands in the valley being riparian lands and directly affected by the presence and flow of the river, and after parts of the flow of the river had been used for manufacturing and milling purposes, and after the riparian lands had been largely and extensively irrigated in the valley of the river in the western portion of

Page 206 U. S. 52

Kansas, and after portions of the land so belonging to the complainant had been sold and conveyed, the State of Colorado and other defendants began systematically appropriating and diverting the waters of the Arkansas River, in the State of Colorado, between Canon City and the Kansas state line, for the purpose of irrigating dry, barren, arid, nonriparian, and nonsaturated lands lying on either side of the river, and often many miles therefrom, and by the year 1891, all the natural and normal waters and a large portion of the flood waters of the Arkansas River were so appropriated and diverted and actually applied to these dry, barren, arid, nonriparian, and nonsaturated lands in the State of Colorado, said diversions increasing from year to year, as their means of diversion became more complete and perfect, so the average flow of the river was greatly and permanently diminished and the normal flow of the river, exclusive of floods, was wholly and permanently destroyed, the navigability of the river where navigable before has been ruined, the power for manufacturing purposes greatly diminished, the surface of the underflow beneath the bottom lands has been lowered about five feet, and the water for the irrigation ditches in the western part of Kansas has been entirely cut off. The loss sustained by the complainant and its citizens has been great and incalculable. The benefits of river navigation are gone; the cheap water power has been replaced by the costly steam power; the productiveness and value of the bottom lands have been greatly diminished; the irrigation ditches are left dry and the lands uncultivated, and the revenues of the State of Kansas and its municipalities have been materially decreased. Against this loss and injury the complainant prays the assistance of this Court."

In the brief of counsel for Colorado, it is said:

"The contention of the defendant, State of Colorado, as to the facts, may be concisely stated as follows: the Arkansas River, popularly so called, is substantially two rivers -- one a perennial stream rising in the mountains of Colorado and flowing down to the plains, and this Colorado Arkansas, when the

Page 206 U. S. 53

river was permitted to run as it was accustomed to run, prior to the period of irrigation, poured into the sands of western Kansas, and at times of low water the river as a stream entirely disappeared. Its waters were to some extent evaporated, and, as to the residue, were absorbed and swallowed up in the sands. So that from the vicinity of the state line between Kansas and Colorado on eastwardly, as far, at least, as Great Bend, if not farther at such times of low water there was no flowing Arkansas River. Farther east, however, a new river arose, even at such times of low water, and partly from springs, partly from the drainage of the water table of the country supplied by rainfall, and partly from the surface drainage of an extensive territory, this river gradually again became a perennial stream, so that south of Wichita, and from there on to the mouth of the river, the Kansas Arkansas, as a new and separate stream, had a constant flow. Such, as the river was accustomed to flow, was the Arkansas of the period prior to irrigation. It was a 'broken river.' It is true that at all times in early years, and now, the Arkansas River at times of flood, or of what might be called high water, has a continuous flow from its source to its mouth, but a flow, even in times of flood or high water, which diminishes through the sandy waste east of the Colorado state line above described, so that oftentimes even a flood in Colorado would be completely lost before it had passed over this arid stretch of sandy channel, and high water would always be diminished in flow through the same stretch of country. This river is as if it were a current of water passing over a sieve -- if the current be slow and the volume not excessive, all of it sinks through the sieve and none passes on beyond; when the current is rapid and the volume is large, still a large amount sinks in the sieve, and the residue passes on beyond."

"Now the irrigators of Colorado have confined their actions to the Colorado Arkansas above described. They have taken the waters of the perennial stream before it reaches this sieve, through which it wasted; they have lifted that stream out of

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the sandy channel in which it had flowed, and applied it to beneficial uses upon the land; carried the body of it along at a higher level than where it was accustomed to run, and they finally restore it, practically undiminished in volume so far as regards practical use at points in the ancient channel farther east than the river at low water was accustomed to flow before the period of irrigation. The effect of the diversion of this water in Colorado, the carrying of it forward on a higher level, the return of waters, partly through seepage and partly through direct delivery at waste gates, and the effect of this process in extending eastward the perennial flow, will be fully discussed in the course of the argument to follow. It is sufficient in this preliminary statement to say that it is admitted by the complainant that, in the course of a twelve-month, there is a vast amount of high and flood waters of the Arkansas that are never captured by man, that are of no use, but are rather of injury to Kansas riparian proprietors, and, so far as any beneficial use is concerned, are absolutely wasted and lost. Kansas does not claim that she has not abundance of water in times of flood or in times of high water; her complaint is based upon the alleged fact that she does not have what she was accustomed to have in periods of low water, whereas, in fact as contended by the State of Colorado, the diversion of water in Colorado into ditches and reservoirs, continuing, as it does, throughout the year, in times of flood and in times of high water, has the effect, through seepage and return waters, to give perennial vitality to portions of this stream during what would otherwise be periods of depression or suspension of flow."

The substance of the petition in intervention is thus stated by counsel for the government:

"The first paragraph of the said petition describes the Arkansas River from its source to its mouth, and alleges that it is not navigable in the States of Colorado and Kansas, nor the Territory of Oklahoma, but is navigable in the State of Arkansas and the Indian Territory."

"In the second paragraph, it is alleged that the lands located

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within the watershed of the river west of the ninety-ninth degree of longitude are arid lands."

"The third paragraph alleges that within said watershed there are 1,000,000 acres of public lands that are uninhabitable and unsalable."

"The fourth paragraph alleges that said lands can only be made habitable, productive, and salable by impounding and storing flood and other waters in said watershed to the end that the said waters may be used to reclaim said land."

"The fifth paragraph alleges that there is not sufficient moisture from rainfall to render the soil capable of producing crops in paying quantities in the watershed so described, and that they can only be made to produce crops by irrigation; that the common law doctrine of riparian rights is not applicable to conditions in the arid region, and has been abolished by statute and by usage and custom; that there has been established in its stead in said region a doctrine to the effect that the waters of natural streams and the flood and other waters may be impounded, appropriated, diverted, and used for the purpose of reclaiming and irrigating the arid land, therein, and that the prior appropriation of such waters for such purpose gives a prior and superior right to the water of the stream."

"The sixth paragraph alleges that legislation of Congress, decisions of courts, and acts of the executive department have sanctioned and approved the use of water for irrigation purposes in the arid region, and that he who is prior in time is prior in right, and that it is recognized that the common law doctrine of riparian rights is not applicable to the public land owned by the United States in the arid region."

"The seventh paragraph alleges that, in accordance with and in reliance upon the doctrine of the use of water for irrigation purposes, the inhabitants of the arid portion of the United States have appropriated and used the waters of streams therein to reclaim and make productive and profitable about 10,000,000 acres of land, which now support a population of many millions, and that the inhabitants of Colorado and Kansas

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within the watershed of the Arkansas River have, by irrigation from said river, made productive and profitable about 200,000 acres of land, which provide homes for and support a population of many thousands."

"The eighth paragraph alleges that the common law doctrine of riparian rights is not applicable to riparian lands within the arid region, and that only by the use of waters of natural streams and flood waters for irrigation and other beneficial purposes can the lands in the arid region be made productive, and only by such use can additional areas be reclaimed and rendered productive and salable."

"The ninth paragraph recites the passage of the so-called Reclamation Act of June 17, 1902."

"The tenth paragraph alleges that about 60,000,000 acres of land belonging to the United States within the arid region can be reclaimed under the provisions of the so-called reclamation act."

"The eleventh paragraph alleges that the amount of land that can be so reclaimed will support a population of many millions."

"The twelfth paragraph alleges that, under the operation of the said Reclamation Act, 100,000 acres of public land can be reclaimed within the watershed of the Arkansas River west of the ninety-ninth degree west."

"The thirteenth paragraph alleges that the lands, when so reclaimed, will support a population of not less that 50,000."

"The fourteenth paragraph alleges that, under the operation of the so-called Reclamation Act, about $1,000,000 has been expended in exploring, procuring, and setting apart sites upon which reservoirs and dams contemplated by the act can be constructed and maintained; that contracts have been let for the construction of reservoirs which, when completed, will cost over two millions and will have a storage capacity to reclaim 500,000 acres of arid land, which land, when reclaimed, will sustain a population of not less than 250,000; that plans are contemplated for the expenditure of $20,000,000 under

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said act, to irrigate about 1,000,000 acres of arid public lands."

"The fifteenth paragraph recites that there are $16,000,000 available under the so-called Reclamation Act."

"The sixteenth paragraph sets forth the contention of Kansas as seen in its amended bill of complaint -- viz., that it is entitled to have the waters of the Arkansas River, which rises in Colorado, flow uninterrupted and unimpeded into Kansas."

"The seventeenth paragraph sets forth the contention of Colorado in respect to its claim of ownership -- viz., that, under the provisions of its Constitution, it is the owner of all waters within that state."

"The eighteenth paragraph is as follows:"

" That neither the contention of the State of Colorado nor the contention of the State of Kansas is correct; nor does either contention accord with the doctrine prevailing in the arid region in respect to the waters of natural streams and of flood and other waters. That either contention, if sustained, would defeat the object, intent, and purpose of the Reclamation Act, prevent the settlement and sale of the arid lands belonging to the United States, and especially those within the watershed of the Arkansas River west of the ninety-ninth degree west longitude, and would otherwise work great damage to the interests of the United States. "

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