Page:The Green Bag (1889–1914), Volume 17.pdf/616

 THE KANSAS-COLORADO WATER SUIT

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THE KANSAS-COLORADO WATER SUIT BY GEORGE P. COSTIGAN, JR. ON May 20, 1901, the state of Kansas, eral abandonment by common law states by leave of court, filed in the Supreme of the old common law doctrine of riparian Court of the United States an original bill rights in streams. In Colorado, for instance, of complaint against the state of Colorado. water is no longer, as it was at common law, The general purpose of that bill was stated an incident to the land over which it flows, to be to get a decree preventing the state of but on the contrary, is of such nature that Colorado from diverting, or from authoriz it may be appropriated in the stream in ing any person, firm, or corporation, to divert which it runs by wholly non-riparian pro any of the waters of the Arkansas River or prietors, if they are the first appropriators, its tributaries for any purpose except for and when appropriated, may be entirely domestic use. The Arkansas River takes it? used up by them for beneficial purposes, rise in Colorado, where the doctrine of the such as farming and mining, despite the appropriation of water for mining and irri protests of the riparian owners.1 It has gating purposes is fully established, and flows long been agreed that it is only because of into Kansas, where the common law doc this doctrine of appropriation — a doctrine trine of riparian rights largely prevails; and several times recognized and sanctioned by the suit raises broadly the question of the Congress and by the United States Supreme proper adjustment of the rights of water Court — that Colorado and the other states users in such an interstate stream. Pre and territories of the arid region have en liminary to a somewhat detailed reference joyed any sort of prosperity. to the suit, a word should be said about the In the petition in intervention filed by appropriation of water doctrine and the im the United States in the Kansas-Colorado water suit, it is pointed out that under portance of this particular litigation. West of the 99th meridian lies what is the 'appropriation of water doctrine, the in known as the arid region of the United habitants of Colorado and of Kansas have, States — a part of the country which, be "within the watershed of the Arkansas cause of altitude, of mountain ranges which River, reclaimed and made productive and deflect storms, and of inland situation, has profitable about two hundred thousand so dry a climate that the soil, if watered acres of land, which have provided, and only by rainfall, is unproductive. The re now provide, homes for and support a pop sult is that in all that region, with a few ulation of many thousands " and that un exceptions that. simply emphasize the rule, der that doctrine the inhabitants of the agriculture is carried on wholly by irriga whole arid region have "reclaimed and tion, i.e., by the diversion of water from the made productive and profitable not less various streams and rivers — all too few than ten million acres of land, which now in number —• which are found there, and provide homes for and support a population the application of that water to the other 1 In Colorado water-rights do not necessarily wise dry and thirsty soil sought to be culti pass as appurtenances of lands granted, though vated. Even in the mountains, where the they pass as such if the intention of the parties melting snows furnish the source of supply to have them do so can be ascertained. Bessemer of many of the streams, the exigencies of Irrlg. Ditch Co. v. Wooley, 76 Pac. 1053. Under mining require the diversion and using up the Reclamation Act of Congress of June 17, 1902, the right to the use of water acquired under that of much of the water. The consequence act is made by the act appurtenant to the land has been that in the arid part of the United irrigated. 32 U. S. Statutes at Large, Part I, States necessity has given rise to the gen- page 390, Sec. 8.