Page:The Green Bag (1889–1914), Volume 17.pdf/617

 588

THE GREEN BAG

of several millions." It is further pointed out in that petition that under the reclama tion act of Congress of June 17, 1902 whereby irrigation reservoirs and dams are to be erected by the United States, about one hundred thousand acres of land belonging to the United States within the watershed of the Arkansas river west of the ggth me ridian, which are now uninhabitable, un productive, and unsalable, can be reclaimed and rendered habitable, productive, and sal able, "provided that under said act reser voirs and dams are erected and maintained to catch, store, and impound the unappro priated waters of natural streams in said region, and to catch, store, and impound the flood and other waters therein, and pro vided such waters, when stored and im pounded, are conducted to and used upon such arid land as by said act intended;" that these one hundred thousand acres when reclaimed and irrigated will be ca pable of supporting a population of not less than fifty thousand; and that in the whole arid region not less than sixty million acres of land now uninhabitable, unproductive, and unsalable can be reclaimed and rendered productive by irrigation under that act; and that these sixty million acres when re claimed will provide homes for and support a population of many millions. It is further pointed out that if the common law doctrine of riparian rights were to be held applicable to riparian lands within the arid region, the aforesaid sixty million acres of land in said region belonging to the United States would forever remain uninhabitable, unproductive, and unsalable, and the area of ten million acres now irrigated therein and supporting a population of several mil lion people must be deprived of water for irrigation and be returned to its original desert condition. The appropriation of water doctrine is thus shown to be of vital importance to the arid region.1 1 It should be borne in mind, of course, that the Kansas-Colorado water litigation affects only interstate streams and their tributaries, and that

And now to scrutinize more closely the suit of the state of Kansas against the state of Colorado. To the bill in that case a de murrer was filed, attacking the jurisdiction of the court. On April 7, 1902, that de murrer was overruled.1 Thereafter the bill was amended by adding as defendants a number of Colorado corporations which own and operate ditches or canals in Colorado and divert therein a large amount of the waters of the Arkansas River and its tribu taries; and the issues in the cause were made up on that amended bill and on a petition in intervention filed in behalf of the United States. By motion the attack on the jurisdiction of the court was also renewed. The amended bill is primarily one to maintain the right of riparian proprietors along the Arkansas River in Kansas (the state of Kansas itself claiming to be one of such proprietors) to prevent the appro priation in Colorado for irrigation of any more of the waters of the Arkansas River than have heretofore been appropriated. The amended bill alleged in substance : 1. That the Arkansas River rises, and all its tributaries rise, in Colorado; that it flows in Colorado for about 280 miles; that it then flows in Kansas for about 310 miles, and that it has a drainage area of about 22,000 square miles. 2. That when the territory of Kansas was organized in 1854, it included all the drainage area of the Arkansas River now in Colorado, and that the common law, in cluding the doctrine of riparian rights, ex tended over the whole Arkansas valley; that by reason of prior settlement, occupaas to streams which lie wholly within appropria tion-law states, the doctrine of appropriation will not be affected by that suit. The destructive effect of a strict application of the common law riparian-right doctrine to interstate streams in the arid region can, however, hardly be overesti mated; as the petition in intervention points out, many thousands in the Arkansas River valley alone would have their farms desolated thereby. 1 Kansas v. Colorado, 185 U. S. 125.