Kansas v. Colorado et al. Defendants, and the United States, 206 U.S. 46 (1907)

Mr. Justice Brewer,

after making the foregoing statement, delivered the opinion of the court.

While we said in overruling the demurrer that “ this court, speaking broadly,' has jurisdiction,” we contemplated further consideration of both the fact and the extent of our jurisdiction, to be fully, determined after the facts' were presented. We therefore commence with this inquiry. And first of our jurisdiction of the controversy between Kansas and Colorado.

This suit' involves no question of boundary or of the limits of territorial jurisdiction. Other and incorporeal rights • are claimed by the respective litigants. Controversies between the States are becoming frequent, and in the rapidly changing conditions of life and business are likely to become still more so. Involving as they do the rights of. political communities, which in many respects are sovereign and independent, they present not infrequently questions of far-reaching import and of exceeding difficulty.

It is well, therefore, to consider the foundations of our jurisdiction over controversies between States. It is no longer open to question that by the Constitution a nation was brought into being, and that that instrument was not merely operative to establish a closer union, or league of States. Whatever powers of government were granted to the Nation or reserved to the States (and for the description and limitation of those powers we must always accept the Constitution as alone and absolutely controlling), there was created a nation to be known as the United States of America, and as such then assumed its place among the nations of the World.

The first resolution passed by the convention that framed the Constitution, sitting as a committee of- the whole, was: “Resolved, That it is the opinion of this committee that a national government ought to be established, consisting of a

supreme legislative, judiciary, and executive.” 1 Eliot’s Debates, 151.

In M’Culloch v. State of Maryland, 4 Wheat. 316, 404, Chief Justice Marshall said:

See also Martin v. Hunter’s Lessee, 1 Wheat. 304, 324, opinion by Mr. Justice Story.

In Dred Scott v. Sandford, 19 How. 393, 441, Chief Justice Taney observed:

And in Miller on the-Constitution of the United States, p. 83, referring to the adoption of the Constitution, that learned jurist said: “It was then that a nation was born.”

In the Constitution are provisions in separate articles for the three great departments of government — legislative, executive and judicial. But there is this significant difference in the grants of powers to these departments: The first article, treating of legislative powers, does not make a general grant of legislative power. It reads: “Article I, Section 1. AlJ legislative powers herein granted shall be vested in a Congress,” etc.; and then in Article VIII mentions and defines the legislative powers that are granted. By reason of the fact that there is no general grant of legislative power it has become an accepted constitutional rule that this is a government'of enumerated powers.'

In M’Culloch v. State of Maryland, supra, 405, Chief Justice Marshall said:

On the other hand, in Article III, which treats of the judicial' department — and this is important for bur present consideration — we find that section 1 reads that ' “ the judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Gongress may. from time.to' time ordain and establish.” By this is granted the entire judicial power of the Nation. Section 2, which provides that "the •judicial power shall extend to all cases, in Jaw and equity, arising under this Constitution, the laws .of the United States,” etc., is not a limitation nor an enumeration. It is a definite declaration, a provision that the judicial- power shall, extend to —that is, shall include — the several matters particularly mentioned, leaving unrestricted the general grant of the entire judicial power. There may be, of course, limitations on that grant of power, but if there are any they must be expressed, for otherwise the general grant would vest in the courts all the judicial power which the new Nation was capable of exercising. Construing this article in the early case of Chisholm v. Georgia, 2 Dall. 419, the court held that the judicial power of the Supreme Court extended to a suit brought against a State by a citizen of another State. In announcing his opinion in the case, Mr. Justice Wilson said (p. 453):

In referencé to this question- attention may, however, properly be called to Hans v. Louisiana, 134 U. S. 1.

The decision in Chisholm v. Georgia led to the adoption of the Eleventh Amendment to the Constitution, withdrawing from the judicial power of the United States every suit in law or equity commenced or prosecuted against one of the United States by citizens of another State or citizens or subjects of a foreign state. This Amendment refers only to suits and actions by individuals, leaving undisturbed the jurisdiction- over suits or actions by one State against another. As said by Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 407: “The amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by States.” See also South Dakota v. North Carolina, 192 U. S. 286.

Speaking generally, it may be observed that the judicial power of a nation extends to all controversies justiciable in their nature, the parties to which or the property involved in. which may be reached by judicial process, and when the judicial power of the United States was vested in the Supreme arid other courts all the judiciaLpower which the Nation was capable of exercising was vested in those tribunals, and unless there be some limitations expressed in the Constitution it must be held to embracé all controversies of a justiciable - nature arising within the territorial limits of the Nation, no matter who may be the parties thereto. This general truth is not inconsistent with the decisions that no suit or action- can be maintained against the Nation in any of its courts without its consent, for they only recognize the obvious truth that a nation is not'without its consent subject to the controlling action of any of its instrumentalities or agencies. The creature cannot rule the creator. Kawananakoa v. Polyblank, Trustee, &c., 205 U. S. 349. Nor is it inconsistent with the ruling in Wisconsin v. Pelican Insurance Company, 127 U. S. 265, that an original action cannot be maintained in this court by one State to enforce its penal laws against a citizen of another State. That was no denial of the jurisdiction of the court, but a decision upon the merits of the claim of the State.

These considerations lead to the propositions that when a

legislative power is claimed for the National Government the question is whether that power is one of those granted by the Constitution, either in terms or by necessary implication, whereas in respect to judicial functions the question is whether there be any limitations expressed in the Constitution on the general grant of national power.

We may also notice a matter in respect thereto referred to at length in Missouri v. Illinois & Chicago District, 180 U. S. 208, 220. The ninth article of the Articles of Confederation provided that “the United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two- dr more States, concerning boundary, jurisdiction or any other cause whatever.” In the early drafts of the Constitution provision was made giving to the Supreme Court “jurisdiction of controversies between two or more States, except such as- shall regard territory or jurisdiction,” and -also that the Senate should have exclusive power to regulate the manner of deciding the disputes and controversies between the States respecting jurisdiction or territory. As finally adopted, the Constitution omits all provisions for the Senate taking cognizance of disputes between the States and leaves out the exception referred to in the jurisdiction granted to the Supreme Court. That carries with it a very direct recognition of the fact that to the Supreme Court is granted jurisdiction of all controversies between the States which are justiciable in their nature. “All the States have transferred the decision .of their controversies to this court; each had a right to demand of it the exercise of the power which they had made judicial by the Confederation of 1781 and 1788; that we should do that which neither States nor Congress could do, settle the controversies between them.” Rhode Island v. Massachusetts, 12 Pet. 657, 743.

Under the same general grant of judicial power jurisdiction over suits brought by the United States has been sustained. United States v. Texas, 143 U. S. 621; S. C., 162 U. S. 1; United States v. Michigan, 190 U. S. 379.

The exemption of the United States to suit in one of its own courts without its consent has been repeatedly recognized. Kansas v. United States, 204 U. S. 331, 341, and cases cited.

Turning now to the controversy as here presented,- it is whether Kansas has a right to the continuous flow of the waters of the Arkansas River, as that flow existed before any human interference therewith, or Colorado the right tó appropriate the waters of that stream so as to prevent that continuous flow,, or that the amount of the flow is subject to the superior authority and supervisory control of the United States. While several of the defendant corporations have answered, it is unnecessary to specially consider their defenses, for if the case against Colorado fails it fails also as against them. Colorado denies that it is in any substantial manner • diminishing the flow of the Arkansas River into Kansas. If -that be true then it is in no way infringing upon the rights of Kansas. If it is diminishing that flow has it an absolute right to determine for itself the extent to which it will diminish it, even to the entire appropriation of the water? And if it has not that absolute right is the amount of appropriation that it is now making such an infringement upon the rights of Kansas as to call for judicial interference? Is the question one solely between the States or is the matter subject to national legislative regulation, and, if the latter, to what extent has that regulation been carried? Clearly this controversy is one of a justiciable nature. The right to the flow of a stream was one recognized at common law, for a trespass upon which a cause of action existed.

The primary question is, of course, of national control. For, _if the Nation has a right to regulate the flow of the waters, we must inquire what it has done in the way of regulation. If it has donp nothing the further question will then arise, what are the respective rights of the two States in the absence of national regulation? Congress has, by virtue'of the grant to it of power to regulate commence “among the several States,” extensive control over the highways, natural or artificial, upon which such commerce may be carried. It may prevent or remove

obstructions in the natural waterways and preserve the navigability of those ways. In United States v. Rio Grande Irrigation Company, 174 U. S. 690, in which was considered the validity of the appropriation of the water of a stream by virtue of local legislation, so far as such appropriation affected the navigability of the stream, we said (p. 703):

It follows from this that if in the present case the National Government was asserting, as against either Kansas or Colorado, that the appropriation for the purposes of irrigation of the waters of the Arkansas was affecting the navigability of the stream, it would become our duty to determine the truth of the charge. But the Government makes no such contention. On the contrary, it distinctly asserts that the Arkansas River is not now and never was practically navigable beyond Fort Gibson in the Indian Territory, and nowhere claims that any appropriation of the waters by Kansas or Colorado affects its navigability.

It rests its petition of intervention upon its alleged duty of legislating for the reclamation of arid lands; alleges that in or near the Arkansas River, as it runs through Kansas and Colo

rado, are large tracts of those lands; that the National Government is itself the owner of many thousands of acres; that it has the right to make such legislative provision as in its judgment is needful for the reclamation of all these arid lands and for that purpose to appropriate the accessible waters.

In support of the main proposition' it is stated in the brief of its counsel:

In other words, the determination of the rights of-the two States inter sese in regard to the flow of waters in the Arkansas River is subordinate to a superior right on the part of the National Government to control the whole system of the reclamation of arid lands. That involves the .question whether the reclamation of arid lands is one of the powers granted to-the General Government. As heretofore stated, the constant declaration of this court from the beginning is that this Government is one of enumerated powers. “The Government, then, of the United States, can claim no powers which are not granted to it by the Constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication.” Story, J., in Martin v. Hunter’s Lessee, 1 Wheat. 304, 326. “The Government of the United States is one of delegated, limited, and enumerated powers.” United States v. Harris, 106 U. S. 629, 635.

Turning to the enumeration of the powers granted to Congress by the eighth section of the first article of the Constituí

tion, it is enough to say that no one of them by any implication refers to the reclamation of arid lands. The last paragraph of the section which authorizes Congress to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or -in any department or office thereof, is not the delegation of a new and independent power, but simply provision for making effective the powers theretofore mentioned. The construction of that paragraph was precisely stated by Chief Justice Marshall in these words: “We think the sound construction of the Constitution must allow to the national legislature .that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the .scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional” — a statement which has become the settled rule of construction.' From this and other declarations it is clear that the Constitution is not to be construed technically and narrowly, as an indictment, or even as a grant presumably against the interest of the grantor, and passing only that which is clearly included within its language, but as creating a system of government whose provisions are designed to make' effective and operative all the governmental powers granted. Yet while so construed it still is true that no independent and unmentioned power, passes to the National Government or can rightfully be exercised by the Congress.

We must look beyond section 8 for Congressional authority over arid lands, and it is said to be found in the second paragraph of section 3 of Article IY, reading: “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging

to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the.Uni ted States, or of any particular State;”

The full scope of this paragraph has never been definitely settled. Primarily, at least, it is a grant of power to the United States of control over its property. That is implied by the words' “ territory or other property.” It is true it has been referred to in some decisions as granting political and . legislative control over the Territories as distinguished from the States of the Union. It is unnecessary in the present case to consider whether the language justifies this construction. Certainly we have no disposition to limit or qualify the expressions which have heretofore fallen from this court in.respect thereto. But clearly it does not grant to Congress any legislative control over the States, and must, so far as they are concerned, be limited to authority over the property belonging to the United States within their limits. Appreciating the force of this, counsel for the Government relies upon “'the doctrine of sovereign and inherent power,” adding “I am aware that in advancing this doctrine.I seem to challenge great decisions of the court, and I speak with deference.” His argument rims substantially along this line: All legislative power must be vested in either the state or the National Government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that State; consequently all powers which are national in their scope must be found vested in the Congress of the United States. But the proposition that there are legislative powers affecting the Nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers! That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise these would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain

by the Tenth Amendment. This amendment, which was seemingly adopted with prescience of just such, contention as the present, disclosed the widespread fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if in the future further powers seemed necessary they should be granted by the people in the manner they had provided for amending that act. It reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved, to the States respectively, or to the people.” The argument of counsel ignores the principal factor in this article, to wit, “ the people.” Its principal purpose was not the distribution of power between the United States and the States, but - a reservation 'to the people of all powers not granted. The preamble of the Constitution declares who framed it,' “we the people of the United States,” not the people of one State, but the people of all the States, and Article X reserves to the people of all the States the powers not delegated to the United States. The powers affecting the internal affairs of the States not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, and all powers of a national character which are not delegated to the National Government by the Constitution are reserved to the people of the United States. The people who adopted the Con-' stitution knew that in the nature of things they could not foresee all the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and after making provision for an amendment to the Constitution by which any needed additional powers would be granted, they reserved to themselves all powers not so delegated. This Article X is not to be shorn of its meaning by any narrow or technical construction, but is ■ to be considered fairly and

liberally so as- to give effect to its scope and meaning. As we said, construing an express limitation on the powers of Congress, in Fairbank v. United States, 181 U. S. 283, 288:

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 prevision 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 section 3 of Article IV 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 be strange if, in the absence of a definite grant of power, the 'National Government could enter the territory of the States along the Atlantic and legislate in respect to improving by irrigation or otherwise the lands within their borders. Nor do we understand that hitherto Congress has acted in disregard to’this limitation. As said by Mr. Justice White, delivering the opinion of the court in Gutierres v. Albuquerque Land Company, 188 U. S. 545, 554, after referring to previous legislation:

to the construction of irrigation works for the reclamation of arid lands. The eighth section of the act is as follows:

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; Pollard v. Hagan, 3 How. 212; Goodtitle v. Kibbe, 9 How. 471; Barney v. Keokuk, 94 U. S. 324; St. Louis v. Myers, 113 U. S. 566; Packer v. Bird, 137 U. S. 661; Hardin v. Jordan, 140 U. S. 371; Kaukauna Water Power Company v. Green Bay & Mississippi Canal Company, 142 U. S. 254; Shively v. Bowlby, 152 U. S. 1; Water Power Company v. Water Commissioners, 168 U. S. 349; Kean v. Calumet Canal Company, 190 U. S. 452. In Barney v. Keokuk, supra, Mr. Justice Bradley said (p. 338):

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):

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 that that common law throws light on the meaning and scope of the Constitution of 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:

In the argument on the demurrer counsel for plaintiff endeavored to show that Congress had expressly imposed the common law on all this territory prior to its formation into States. See also the opinion of the Supreme Court of Kansas in Clark v. Allaman, 71 Kansas, 206. But when the States of Kansas and Colorado were admitted into the Union they were admitted with the full powers of local sovereignty which belonged to other States, Pollard v. Hagan, supra; Shively v. Bowlby, supra; Hardin v. Shedd, 190 U. S. 508, 519; 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 ncommon law of the United States as distinguished from the common law of the several States. This contention was made in Western Union Telegraph Company v. Call Publishing Company, 181 U. S. 92, in which it was asserted that, as Congress having sole jurisdiction over interstate commerce had prescribed no rates for interstate telegraph communications, there was no limit on the power of a telegraph company in respect thereto. After referring to the general contention, we said (pp. 101, 102):

What is the common law? Kent says (vol. 1, p. 471):

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 deci

sions 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 lawris hut 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 com-. pacts between the States, as it., cannot, in respect to certain matters/by legislation, eompel their separate-action; disputes between them must be settled either by force or else by appeal to tribunals empowered, to determine the right and wrong thereof. Force under bur system of Government is eliminated. The clear language of the Constitution vests in this court the power to settle those disputes. We have exercised that power in a variety of instances, determining in the several instances the justice of the dispute. Nor is our jurisdiction ousted, even if, because Kansas and Colorado are States sovereign and independent in local matters, the relations between 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, Mr. Justice Gray declared:

And in delivering the opinion on the demurrer in this case Chief. Justice Fuller said (185 U. S. 146):

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. Illinois, 180 U. S. 208, the action of one State 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 matter of justiciable dispute between them,- and ¿his 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. But the appropriation of the entire flow of the river would naturally tend to make the lands along the stream in Kansas less arable. - It would be taking from the adjacent territory- that which had been the customary natural means of preserving its arable- character. On the other hand, the possible contention of Kansas, that the flowing water in the Arkansas must, in accordance with the extreme doctrine of the common law of England, be left to. flow as it was wont.to flow, no portion of it being appropriated in Colorado for-the purposes of irrigation, would have the effect to perpetuate a desert condition in portions of Colorado .beyond the power of reclamation. Surely here is a dispute of a justiciable nature which must and ought to be tried and determined. If the two States were absolutely independent nations it would be settled by treaty, or by force. Neither of these ways being practicable, it must be settled by decision of this court.

In deciding this case on demurrer we said (185 U. S. 142), referring to the opinion in Missouri v. Illinois:

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 evading the provisions of the Eleventh Amendment to the Federal. Constitution. It is not acting directly and solely for the benefit of any individual citizen to protect his riparian rights. Beyond its property rights it has an interest as a State in this large tract of land bordering on the Arkansas River. -Its prosperity affects the general welfare of the State. The controversy rises, therefore, above a mere question of local private right and involves a matter of state interest, and must be considered from that standpoint. Georgia v. Tennessee Copper Co., decided "this day, post, p. 230.

This changes in some respect the scope of our inquiry. It is not limited to the simple-matter of whether any portion of the

waters of the Arkansas is withheld by Colorado. We must consider- the effect of what has been done upon the conditions in the respective States and so adjust the dispute upon the basis of equality; of- rights as to 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 appropriated the water he had benefited the lower proprietor, 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 -Colorado 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 enure by keeping the flow of the Arkansas in its channel undiminished, then we may .rightfully regard the usefulness to Colorado as justifying its action, although the locality of the benefit which the flow of the Arkansas through Kansas has territorially changed. Science may not as yet be able to give positive information as to the processes by which the distribution of water over certain territory has operation beyond the mere limits of the area in which the water is distributed, 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 unsuccessful unless confined to its eastern 100' or 120 miles. West of that crops were almost always 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 irrigation. A common belief is that the original sod was largely impervious to water, that when the spring rains came the water, instead of sinking into the ground, filled the watercourses 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-summer 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 continued 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, instead of stopping at a distance of 120 miles from- the Missouri River, the area of cultivated and

•profitably cultivated land has extended 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 westward from the Missouri River, is it altogether an unreasonable expectation that as the arid lands of Colorado are irrigated and become from year to year covered with vegetation,. 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 hot 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 Kansas, 206, is an exhaustive discussion of the question, Mr. Justice Burch delivering the unanimous opinion of the court. In the syllabus, which by statute (Compiled Laws, Kansas, p. 317, sec. 14) is prepared by the.justice writing the opinion, and states' the law of the case, are these paragraphs:

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.

And in the opinion, on pages 242, .243, are quoted these observations of Chief Justice Shaw in the casé of Elliott v. Fitchburg Railroad Company, 10 Cush. 191, 193, 196:

his own benefit, for domestic use, and for manufacturing and agricultural purposes. . . .

As Kansas thus recognizes the right of appropriating the waters of'a stream for the purposes of irrigation, subject to the condition of an equitable division between the riparian proprietors, she cannot complain if the same rule is administered

between herself and a sister State. And this is especially true when the waters are, except for domestic purposes, practically useful only for purposes of irrigation. The Arkansas River, from its source to the eastern end of the Royal Gorge, is a mountain torrent,, coming down between rocky 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 three hundred and fifty miles, and the descent is only 2,320 feet, or less than seven feet to a mile. There are substantially no falls, no., narrow passageways in which darns can be readily constructed for the development of water power;'and while there are some- in eastern Colorado, yet they aré. 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 meagre amount required for domestic purposes,, would flow through eastern Colorado and Kansas and be 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 square 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 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 tbose 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 eaeh 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, hasffits 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 Cañón 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 adjacent to those upon which water is poured, 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 the 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 .commencéd 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 commencement 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 Canon 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 cultivated and total value of farm products in these several counties for the years 1880, 1890' and 1900:

[figure]

These tables disclose a very marked development 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 Colo

rado that it has had in Kansas, and that the barrenness which characterized portions of the territory of Colorado would have continued for an indefinite time unless relieved by irrigation.

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:

We have been furnished by the United States Census Office with statistics of the corn and wheat crops of those counties from the years 1889 to 1904. Corn, wheat and hay are the leading crops in Kansas. It would unnecessarily prolong this opinion to copy these tables in full, so we -give the figures for 1890, 1895, 1900 and 1904:

[figure]

[figure]

Comparing the tables of population it will be perceived that both the 'counties in Colorado and Kansas made a considerable incréase in the years from 1880 to 1890-; that while the Colorado counties continued their increase from 1890 to 1900, the Kansas counties lost. As the withdrawal* of water in Colorado for irrigating purposes became substantially effective about the year 1890; it might, if nothing else appeared, not unreasonably, be concluded that the diminished flow of the river in Kansas', 'causéd by the action of Colorado, had resulted in making the land more unproductive, and hence induced settlers to leave the State. As against this it should be noted, as a matter of history, that in the years preceding 1890, Kansas passed shrough a period .of depression, with crops largely a failure in different parts of the State. But, more than that, in 1889 Oklahoma, lying directly south of Kansas, was opened for settlement and immediately 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 190Ó, 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 thé 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 tne 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 Í895 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.

These are official figures taken from the United States census reports, and they tend strongly to show that the withdrawal of the water in Colorado for purposes of irrigation has not proved a source of serious detriment to .the Kansas' counties along the Arkansas River. It is not strange that the western counties show the least development, for being nearest the irrigation in Colorado, they would be" most affected thereby. At one time there were some irrigating ditches in these western counties, which promised to be valuable in supplying water and thus increasing- the productiveness of the lands in the vicinity of the stream, and it is true that those ditches have ceased to be of much .value, the flow in them having largely diminished.

It cannot be denied in view of all the testimony (for that-which we have quoted is but a sample of much more bearing upon the question), that the diminution of the flow of water in the river by the irrigation of Colorado has worked somé

detriment to the southwestern part of Kansas, and yet when we compare the amount of this detriment with the great benefit which has obviously resulted to the counties in Colorado, it would seem that equality of right and equity between the two States forbids any interference with the present withdrawal of water in Colorado for purposes of irrigation.

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 places 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 running in the same direction, is something very different from an independent subsurface river flowing continuously from the Colorado line through the State of Kansas. It is not properly denominated a second and subsurface stream. It is rather to be regarded as merely the accumulation of water which will always be found beneath the bed of any stream whose bottom is not solid rock. Naturally, the more abundant the flow of the surface stream and the wider its channel the more of this subsurface water there will be. . If

the entire volume of wáter passing down the surface was taken away the subsurface water would gradually disappear^ and in that way the amount of the flow in the surface channel coming from Colorado into Kansas may affect the amount of water beneath the subsurface. As subsurface water, it percolates on either side as well as moves along the course of the-river, and-the more abundant the subsurface water the further it will reach in its percolations on either side as well as more distinct will be its movement down the course of the stream. The testimony, therefore, given in reference to this subsurface water, its amount and its flow bears only upon the question of the diminution of the flow from Colorado into Kansas caused by the appropriation - in the former State of the waters for the purposes of irrigation. •

Equally untenable is the contention of Colorado ■ that there are really two rivers, one commencing in the mountains of Colorado and terminating at or near the state line, and the other commencing at or near the place where the- former ends, and from springs and branches starting a new stream to flow onward through Kansas and Oklahoma towards the Gulf of Mexico. From time immemorial the existence of a single continuous river has been recognized by .geographers, explorers and travelers. That there is a great variance in the amount of water flowing down the channel at different seasons of the year and in different years is undoubted; that at times the entire bed of the channel has been in places dry is evident from the testimony. In that way it may be called a broken river. But this is a fact common to all streams having their origin in a mountainous region, and whose volume is largely affected by the melting of the mountain snows. Thus, -from one of complainant’s exhibits furnished by the United States Geological Survey, the mean monthly flow at Cañón City at the mouth of the Royal Gorge for the years 1890, 1895 and 1900 is as follows:

[figure]

Doubtless the variance at different seasons of the year is more regular and more pronounced than in those streams whose sources are only slightly elevated and the rise and fall of whose, waters is mainly owing to rains. Contrasting, for instance, the Hudson with the Missouri, illustrates this. When the June flood'comes down the Missouri River it is a mighty torrent. One can stand on the bluffs at Kansas City and see an enormous volume of water, extending in-width from two to five miles to the bluffs on the other side of the river, flowing onward with tremendous velocity and force, and yet at other times the entire flow of the Missouri River passes between two piers of the railroad bridge across the river at that point. No such difference between high and low1 water appears in the Hudson. In the days when navigation west of the Mississippi was largely by steamboats on the Missouri River, it was familiar experience for the flat-bottomed steamboats, drawing but little water, to be aground on sandbars and detained for hours in efforts to cross them. Gen. Doniphan commanded an-expedition which marched from Fort Leavenworth in 1846 up the 'Arkansas Valley and into the Territory of New Mexico. He did not enter the valley again until shortly before his death in 1887, and when asked what he recognized replied that there

were one or two natural objects like Pawnee rock that appeared as they did when he marched up the valley; the river was the same but all else was changed, and the-valley instead of being -destitute of human occupation 'was filled with farm houses and farms, villages and cities — something that he had never expected would be seen in his day.

Summing up our conclusions, we are of the opinion that the contention of Colorado of two streams cannot be sustained; that the .appropriation of the waters of the Arkansas by- Colo-rádo, for purposes of irrigation, has diminished the flow of water into the State of Kansas; that the result of that appropriation has been the reclamation of large areas in Colorado, transforming thousands of acres into fertile fields and rendering possible their -occupation and cultivation when otherwise they would have continued barren and unoccupied; that while -the influence of such diminution has been of perceptible injury to portions of the Arkansas Valley in Kansas, particularly those portions closest to the Colorado line, yet to the great body of the valley it has worked little, if any, detriment, and regarding the interests of both States and the right of each to receive benefit through irrigation and in any other manner from the waters of this, stream, we are not satisfied that Kansas has made out a case entitling it to a deeree. At the same time' it is obvious that if the depletion of the waters of the river by Colorado continues to increase there will come a time when Kansas may justly say that' there is no longer an equitable division of benefits and may rightfully call for relief against the action of Colorado, its corporations and citizens in appropriating the waters of the Arkansas for irrigation purposes.

The decree which, therefore, will be entered will be one dismissing the petition of the intervenor, without prejudice to the rights of the United States to take such action as it shall deem necessary to preserve or improve the navigability of the Arkansas River. The decree will also dismiss the bill of the State of Kansas as against all the defendants, without prejudice to the right of the plaintiff to institute new proceedings when

ever it shall appear that through a material increase in the depletion of the waters of the Arkansas by Colorado, its corporations or citizens, the substantial interests of Kansas are being injured to the extent of destroying the equitable apportionment of benefits between the two States resulting from the flow of the river. Each party will pay its own costs.

In closing, we may say that the parties to this litigation have approached the investigation of the questions in the most honorable spirit, seeking to present' fully the facts as they could be ascertained from witnesses and discussing the evidence and questions of law with marked research and ability.

Mr. Justice White and Mr. Justice McKeNna concur in the result.

Mr. Justice Moody took no part in the decision of this case.