Page:The Green Bag (1889–1914), Volume 17.pdf/618

 THE KANSAS-COLORADO WATER SUIT tion, etc., the state of Kansas and the owners of land upon the banks of the river acquired, and now have the right, to the unimpeded and uninterrupted flow of the water of the river into and across the state of Kansas and that these rights accrued prior to any appropriation of water in Colorado. 3. That Colorado, by its constitution and legislation, has attempted to grant to indi viduals the right to divert the waters of the Arkansas River in Colorado; that upwards of one thousand persons, firms, and corpo rations claim that under the Colorado con stitution and statutes they have derived rights to divert water for irrigating nonriparian arid lands, and in pursuance of those claims have constructed reservoirs, canals, and ditches, and do divert water which otherwise would flow through Kansas. 4. That the flow of water in the river bed in Kansas is valuable; because evapo ration therefrom tends to cool and moisten the surrounding atmosphere and to enhance the value of the lands, and not only con duces directly and materially to the public health, but makes the locality habitable. That the "underflow" of the Arkansas river in Kansas, i.e., the portion of the river which flows beneath the surface through the sand and gravel, when said underflow is at its usual height, is also of great and lasting benefit to the bottom lands, both those which abut on the river and those which do not, and is of great benefit to the people owning and occupying said lands, in that it furnishes moisture sufficient to grow ordinary farming crops in the absence of rainfall, and furnishes water at a moderate depth below the surface for domestic use and for the watering of animals. That the ordinary and usual rainfall in the major portion of the valley of the Arkansas River in Kansas is utterly inadequate to the grow ing and maturing of cultivated crops at any time, because the precipitation is very scanty, and because it does not fall during the growing season of the year; and that

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the diversion of water from the river in Colorado is carried to such an extent that no water flows in the bed of the river from Colorado into Kansas during the annual growing seaspn, and the underflow is dimin ishing and continuing to diminish, and if said diversion continues to increase a large part of the fertile bottom-lands of the Arkansas valley in Kansas will become arid desert. 5. That the diversion of the water of the river in Colorado not only has a bad effect upon agriculture and pasturage in Kansas, but also causes the channel of the river itself to fill, and, therefore, in times of fresh ets to allow adjacent land to be overflowed and injured by the deposits of debris and dirt. 6. That the state of Kansas owns lands along the Arkansas River in Kansas, and, on that account, is injured by the diversion of water in Colorado, and that, in addition, such diversion, by causing the value of the land in the Arkansas valley to shrink, dimin ishes the taxes which the state can collect. 7. That the state of Colorado itself di verts water, and is threatening to divert more water from said Arkansas River and said tributaries in Colorado. The amended bill prayed that the state of Colorado be enjoined from granting, issu ing, renewing, or permitting to be granted, any charter, license, permit, or authority, to any firm, person, or corporation, to divert the water of the Arkansas River or its trib utaries in Colorado, except for domestic use, and from itself diverting any; that the other defendants be enjoined from diverting any of said water; that the respective rights of the parties be defined and fixed, and that the complainant have general relief. While the allegations of the bill and the prayer for relief are so framed as to deny any right of appropriation of the water of the Arkansas River in Colorado for other than domestic purposes, the contention of Kansas does not in fact go so far. As was said by the United States Supreme Court in deciding on the demurrer: