In a suit involving use of the waters of the Arkansas River,
brought by Colorado against Kansas and a Kansas user,
held:
1. Colorado is entitled to an injunction against further
prosecution of suits by the Kansas user against Colorado users. P.
320 U. S.
391.
2.
Kansas v. Colorado, 206 U. S.
46, made no allocation between the States of the waters
of the river. P.
320 U. S.
391.
3. Kansas is not entitled on the record to an apportionment in
second feet or acre feet. P.
320 U. S.
391.
4. In controversies involving the relative rights of States, the
burden on the complaining State is much heavier than that generally
required to be borne by private parties, and this Court will
intervene only where a case is fully and clearly proved. P.
320 U. S.
393.
5. Kansas' allegations that Colorado's use has materially
increased since the decision in
Kansas v. Colorado, and
that the increase has worked a serious detriment to the substantial
interests of Kansas, are not sustained by the evidence. P.
320 U. S.
400.
6. Relief other than the restraint of further prosecution of
suits by the Kansas user against Colorado users is denied to both
States. P.
320 U. S.
400.
Original suit in equity by Colorado against Kansas and the
Finney County (Kansas) Water Users' Association.
Page 320 U. S. 384
MR. JUSTICE ROBERTS delivered the opinion of the Court.
This suit is the latest of a series of litigations between
Kansas or her citizens, and Colorado, or her citizens, concerning
their respective rights to the beneficial use of the waters of the
Arkansas River.
The river has its origin in central Colorado, and is a mountain
torrent for 130 miles to a point near Canon City where it enters a
foothill region ending near Pueblo. Thence it traverses the high
plains of eastern Colorado and western Kansas. In the areas
mentioned, the stream is nonnavigable.
In 1901, Kansas brought suit against Colorado in this court for
an injunction restraining the latter from diverting, or permitting
anyone under her authority to divert, waters of the river within
Colorado, and for general relief.
Kansas v. Colorado,
206 U. S. 46.
[
Footnote 1] Kansas, in her
bill, alleged that the waters of the river had been used for
irrigation in her western counties and that, after establishment of
these uses, Colorado began systematically to appropriate
Page 320 U. S. 385
and divert them between Canon City and the Kansas state line for
irrigating nonriparian arid lands; that, by 1891, all the natural
flow, and much of the flood waters, had been appropriated in
Colorado, so that the average flow had been greatly reduced and the
natural flow completely cut off.
Colorado replied that the stream was not continuous except at
times of flood; that, in a state of nature, its bed east of Pueblo
was frequently dry; that Colorado and her citizens had diverted and
used only the perennial flow above Canon City, and what had been
done in effect conserved water for delivery into Kansas. She denied
she had substantially diminished the flow of the river at the state
line. She asserted she was entitled to consume the entire flow; but
alleged that, in any view, her total appropriations did not amount
to an infringement of Kansas' rights calling for judicial
interference.
The court denied Kansas' contention that she was entitled to
have the stream flow as it flowed in a state of nature. It denied
Colorado's claim that she could dispose of all the waters within
her borders, and owed no obligation to pass any of them on to
Kansas. It declared that, as each state had an equality of right,
each stood before the court on the same level as the other; that
inquiry was not confined to the question whether any portion of the
river waters were withheld by Colorado, but must include the effect
of what had been done upon the conditions in the respective states,
and that the court must adjust the dispute on the basis of equality
of rights to secure, so far as possible to Colorado the benefits of
irrigation, without depriving Kansas of the benefits of a flowing
stream. The measure of the reciprocal rights and obligations of the
states was declared to be an equitable apportionment of the
benefits of the river. The court added that, before the
developments in Colorado consequent upon irrigation
Page 320 U. S. 386
were to be destroyed or materially affected, Kansas must show
not merely some technical right, but one which carried
corresponding benefits.
On examination of the proofs, the court concluded that
diversions authorized by Colorado embraced more water than the
total flow at Canon City. It found, however, that no clear showing
was made as to what surplus water, if any, was contributed by the
tributaries below that point, or as to the proportion of the
diverted water returned to the river by seepage. The opinion
described the diversions in each state, analyzed the use made of
the water and the benefits derived from it in each, considered
population tables and agricultural statistics bearing upon the
growth of the communities adjacent to the river in each, and stated
conclusions, now material, as follows: that the result of
Colorado's appropriations had been beneficial reclamation of many
acres; that, while the influence of Colorado's diversions had been
of perceptible injury to portions of the Arkansas valley in Kansas,
yet, to the great body of the valley, the diminution of flow had
worked little, if any, detriment; that, regarding the interests of
both states and the right of each to receive benefit through
irrigation and otherwise from the waters of the stream, the court
was not satisfied that Kansas had made out a case entitling it to a
decree. The court added that, if depletion by Colorado continued to
increase, there would come a time when Kansas might justly say that
there was no longer an equitable distribution of benefits, and
might rightly call for relief against Colorado and her citizens.
Accordingly, the bill was dismissed without prejudice to future
action by Kansas. The taking of evidence ended June 16, 1905, and
the decision of the court was announced May 13, 1907.
October 30, 1909, the Finney County Water Users' Association,
which maintained the so-called Farmers Ditch in Kansas, applied to
a Kansas court for adjudication
Page 320 U. S. 387
of priorities as between various Kansas users of the river
water. One of the defendants, the United States Irrigating Company,
removed the cause to the United States District Court. A consent
decree was entered May 16, 1911, which provided for the allocation
and rotation of use amongst certain, but not all, the Kansas
ditches, including the Farmers' Ditch. It was, however, provided
that the settlement should remain binding upon the parties only
until the adjudication of other litigation next to be noticed.
August 27, 1910, United States Irrigating Company sued Graham
Ditch Co. and others holding Colorado priorities in the United
States District Court for Colorado to obtain an adjudication of
priorities as between Kansas users and Colorado users. The Finney
County Association was denied leave to intervene. Evidence was
taken, but the suit was settled by a contract of February 19, 1916.
By this settlement, the Colorado defendants agreed to recognize
priorities as of August 27, 1910, for all the Kansas ditches in
Finney County except the Farmers' Ditch; not to apply for, or
claim, priorities for storage purposes on the Purgatoire River, a
tributary of the Arkansas, or below the mouth of the Purgatoire, of
a date earlier than August 27, 1910, and to pay the costs of suit
and an additional sum to the Kansas interests. The Kansas ditches
agreed to accept the priority date of August 27, 1910, and the
quantities of water specified in the contract, as a definition and
determination of their rights. The defendants complied with the
terms of the contract.
The Finney County Association declined to become a party to the
contract, and, on November 27, 1916, brought suit in the United
States District Court for Colorado against the same defendants for
relief like that sought in the United States Irrigating Company's
suit. January 29, 1923, the Finney County Association brought a
second suit in the same court against other Colorado defendants
Page 320 U. S. 388
for similar relief. January 24, 1928, Colorado filed the present
bill against Kansas and the Finney County Association.
After formal recitals, the bill refers to our earlier decision,
states that, in reliance upon it, money has been spent in the
improvement of the irrigation systems in Colorado, recites the
prior and the pending private litigation against Colorado
appropriators, alleges that the establishment of an interstate
priority schedule sought in the pending suits would disrupt and
destroy Colorado's administration of the waters of the Arkansas
basin and result in conflict of state authority, asserts that no
proper settlement of the relative rights of the States can be
obtained in suits by Kansas appropriators against Colorado
appropriators, outlines other injury to Colorado threatened by
prosecution of the pending cases to judgment, and prays that the
Finney County Association be enjoined from further pressing those
suits, that Kansas and her citizens be enjoined from litigating, or
attempting to litigate, the relative rights of the two states and
their citizens to the waters of the river on claims similar to
those made by the Association in its pending suits, and that the
rights of Colorado and her citizens as determined by the judgment
in
Kansas v. Colorado be protected.
Kansas' answer admits some allegations of the bill and denies
others, sets forth her alleged rights in the waters of the river,
recites appropriations by Kansas residents and citizens, diversions
by Colorado citizens under appropriations junior in time and
inferior in right to those made in Kansas, and asserts that, since
the filing of the complaint in
Kansas v. Colorado,
Colorado users have largely increased their appropriations and
diversions, and threaten further to increase them, to the injury of
Kansas users. She prays that the court protect and quiet her rights
and those of her citizens and residents, including the Finney
Page 320 U. S. 389
County Association, to their appropriations, that the rights of
her citizens and residents to divert water from the river for
irrigation be decreed in second feet, and that Colorado, her
officers, agents, and citizens be perpetually enjoined from
diverting any waters from the river or its tributaries in Colorado
until the rights of Kansas, her citizens and residents, are
satisfied.
The Finney County Association filed an answer admitting and
denying averments of the bill and affirmatively praying that
Colorado and her citizens be enjoined from diverting water from the
river until the Association's right to 250 second feet is
satisfied. The issues were made up by Colorado's reply.
Pursuant to our order, evidence was taken by a Commissioner.
Thereupon, the cause was referred to a Master with leave to take
additional evidence, and direction, in the light of all the
evidence, to state findings of fact, conclusions of law, and to
recommend a form of decree. The evidence consists of some seven
thousand typewritten pages of testimony and 368 exhibits covering
thousands of pages.
The Master states that the "evidence is voluminous and
conflicting on many of the material issues of fact," but his report
contains no discussion or analysis of the proofs. Apart from formal
recitals, the report consists of fourteen findings of fact -- more
properly conclusions of fact -- nine conclusions of law, and a
recommended form of decree. Each party has filed exceptions.
Three questions emerge from the pleadings. (1) Is Colorado
entitled to an injunction against the further prosecution of
litigation by Kansas users against Colorado users? (2) Does the
situation call for allocation of the waters of the basin as between
Colorado and Kansas in second feet or acre feet? (3) Has Kansas
proved that Colorado has substantially and injuriously
aggravated
Page 320 U. S. 390
conditions which existed at the time of her earlier suit?
The Master concluded that the first question should be answered
in the affirmative. Kansas has not excepted to the conclusion or to
the corresponding provisions of the proposed decree.
Bearing upon the second question, the Master found that "the
average annual natural flow of the river and its tributaries" is
1,240,000 acre feet, and the "average annual dependable and fairly
continuous water supply and flow" 1,110,000 acre feet. He
recommends that the dependable flow be allocated 925,000 acre feet
to Colorado and 185,000 acre feet to Kansas, 150,000 thereof
between April 1 and October 1, and 35,000 between October 1 and
April 1 of each year, -- that is, five-sixths to Colorado and
one-sixth to Kansas. He submits a form of decree embodying this
allocation and adjusting required deliveries in the same
proportions upward or downward in accordance with annual flows in
excess of, or less than, the stated average annual dependable flow.
He has not attempted to define flood waters or the extent to which
they are unusable by either state, and suggests no provision
whereby their occurrence may be taken into account in defining
Colorado's obligation to deliver water to Kansas. The form of
decree requires measurement of flow by gauges, one at Canon City
and the other at the mouth of the Purgatoire, and deliveries to
Kansas prorated to the total of the flows at those points.
Both States except to these features of the decree as ambiguous
and impossible of administration. Kansas, while asserting that the
award to her is inadequate, professes her willingness to accept the
recommended allocation, but insists that the decree require
Colorado to deliver the quantity of water awarded to Kansas when
and as demanded by her. Colorado asserts that the recommended
decree -- much more Kansas' proposed amendment --
Page 320 U. S. 391
would entail serious and unjustified damage to her interests, if
indeed compliance with its terms were possible.
In respect of the third question, the Master finds:
"There has been since the taking of testimony in the case of
Kansas against Colorado cited in
206 U. S.
206 U.S. 46, in 1907, a material increase in the river
depletion by Colorado of the water supply of the Arkansas River,
which has been consumed and used by Colorado users for irrigation
purposes and which has diminished the flow of the water into the
Kansas, and that, by reason thereof, there has been injuries to the
substantial interests in Kansas."
No exception is taken to the Master's recommendation that an
injunction issue against further prosecution of the Finney County
Association suits against Colorado users. In our view, such an
injunction is appropriate, and should be granted.
Colorado urges that our decision in
Kansas v. Colorado,
supra, amounted to an allocation of the flow of the Arkansas
River between the two States. We cannot accept this view. In that
case, Kansas labored under a burden of proof applicable in
litigation between
quasi-sovereign states, of which more
hereafter. The dismissal of her bill resulted from the conclusion
that she had failed to sustain the burden. But, from the decision
then rendered it follows that, unless Kansas can show a present
situation materially different from that disclosed in the earlier
case, she cannot now obtain relief.
The prayer of Kansas for an apportionment in second feet or acre
feet cannot be granted. In our former decision, we ruled that
Kansas was not entitled to a specific share of the waters as they
flowed in a state of nature, that it did not then appear that
Colorado had appropriated more than her equitable share of the
flow, and that, if Kansas were later to be accorded relief, she
must show additional takings working serious injuries to her
substantial
Page 320 U. S. 392
interests. This was in accord with other decisions in similar
controversies. [
Footnote 2]
The reason for judicial caution in adjudicating the relative
rights of states in such cases is that, while we have jurisdiction
of such disputes, [
Footnote 3]
they involve the interests of
quasi-sovereigns, present
complicated and delicate questions, and, due to the possibility of
future change of conditions, necessitate expert administration,
rather than judicial imposition of a hard and fast rule. Such
controversies may appropriately be composed by negotiation and
agreement, pursuant to the compact clause of the Federal
constitution. We say of this case, as the court has said of
interstate differences of like nature, that such mutual
accommodation and agreement should, if possible, be the medium of
settlement, instead of invocation of our adjudicatory power.
[
Footnote 4]
It follows that the Master erred in attempting to divide what he
designated as the "average annual dependable" water supply of the
Arkansas River in Colorado into fractions
Page 320 U. S. 393
and awarding those fractions to the states respectively. Such a
controversy as is here presented is not to be determined as if it
were one between two private riparian proprietors or appropriators.
[
Footnote 5]
The lower state is not entitled to have the stream flow as it
would in nature regardless of need or use. [
Footnote 6] If, then, the upper state is devoting the
water to a beneficial use, the question to be decided, in the light
of existing conditions in both states, is whether, and to what
extent, her action injures the lower state and her citizens by
depriving them of a like, or an equally valuable, beneficial use.
[
Footnote 7]
We come now to the vital question whether Kansas has made good
her claim to relief founded on the charge that Colorado has, since
our prior decision, increased depletion of the water supply to the
material damage of Kansas' substantial interests. The question must
be answered in the light of rules of decision appropriate to the
quality of the parties and the nature of the suit.
In such disputes as this, the court is conscious of the great
and serious caution with which it is necessary to approach the
inquiry whether a case is proved. Not every matter which would
warrant resort to equity by one citizen against another would
justify our interference with the action of a state, for the burden
on the complaining state is much greater than that generally
required to be borne by private parties. Before the court will
intervene, the case must be of serious magnitude, and fully and
clearly proved. [
Footnote 8]
And, in determining whether one state
Page 320 U. S. 394
is using, or threatening to use, more than its equitable share
of the benefits of a stream, all the factors which create equities
in favor of one state or the other must be weighed as of the date
when the controversy is mooted.
On this record, there can be no doubt that a decree such as the
Master recommends, or an amendment or enlargement of that decree in
the form Kansas asks, would inflict serious damage on existing
agricultural interests in Colorado. How great the injury would be
it is difficult to determine, but certainly the proposed decree
would operate to deprive some citizens of Colorado, to some extent,
of their means of support. It might indeed result in the
abandonment of valuable improvements and actual migration from
farms. Through practice of irrigation, Colorado's agriculture in
the basin has grown steadily for fifty years. With this development
has gone a large investment in canals, reservoirs, and farms. The
progress has been open. The facts were of common knowledge.
The controversy was litigated in 1901. Kansas was denied relief
in 1907. The dispute between appropriators in the two states was
brought into court in 1910, and settled in 1916. The Finney County
Association sued Colorado appropriators in 1916 and 1923. Even if
Kansas' claims of increased depletion and ensuing damage are taken
at face value, it is nevertheless evident that, while improvements
based upon irrigation went forward in Colorado for twenty-one
years, Kansas took no action until Colorado filed the instant
complaint in 1928.
These facts might well preclude the award of the relief Kansas
asks. But, in any event, they gravely add to the burden she would
otherwise bear, and must be weighed in estimating the equities of
the case. [
Footnote 9]
The Master concludes that there has been a material increase in
depletion by Colorado, a consequent diminution
Page 320 U. S. 395
of flow across the state line, and injury to the substantial
interests of Kansas. His report does not state what he considers
material, or the extent of the diminution of flow, or the interests
of Kansas which have been injured and the extent of the injury. We
must therefore turn to the evidence to resolve the issues.
Kansas asserts that, since the decision of
Kansas v.
Colorado, supra, Colorado has increased her consumptive use of
the water of the Arkansas River by an annual average of between
300,000 and 400,000 acre feet. Witnesses so testified, and, to
support their conclusions, submitted elaborate calculations and
analyses exhibiting the alleged total water supply of the river
basin in Colorado and the alleged amount of water passing in the
bed of the stream across the state line. A witness submitted tables
covering the period 1895-1930 from which he deduced an average
yearly water supply of 1,240,000 acre feet and an average annual
dependable supply of 1,110,000 acre feet. He presented figures to
show that Colorado's consumptive use had increased to the extent of
an annual average of 300,000 acre feet. He reached this result by
using estimated flow across the state line between 1895 and 1908
and measured flow between 1908 and 1930, during which period a
gauging station was maintained at Holly near the line. Measurements
indicate that, during the latter period, the average annual state
line flow was 260,700 acre feet. [
Footnote 10] If, as claimed, this flow remained after an
additional average annual depletion of 300,000 acre feet by
Colorado, the average annual flow in the earlier period, 1895 to
1908, would necessarily have been greater by 300,000, or would have
averaged 560,700 acre feet. The witness' own exhibit shows that he
assumed an average annual state line flow for the period
Page 320 U. S. 396
1895-1899 of 300,000 acre feet, for 1900-1904, of 470,000 acre
feet, and, for 1905-1909, of 454,000 acre feet, or an annual
average over the total period, 1895-1909, of 408,000 acre feet. On
his own estimates, the claimed average annual depletion of 300,000
acre feet could not have taken place. Moreover, the force of this
evidence is weakened by Kansas' allegations in
Kansas v.
Colorado, supra. In her bill in that case, she alleged
Colorado had totally destroyed the normal flow of the river
exclusive of floods, whereas she now asserts that the flow at the
time of the earlier suit was such that Colorado has been able to
deplete it on an annual average of 300,000 acre feet.
The records of Colorado's consumption and ditch diversions, and
the Colorado and Kansas exhibits showing the divertible and usable
state line flow, rebut such an increase as Kansas asserts. Kansas'
expert witness himself testified that the diversion records show no
material change in Colorado diversions since 1905, and that, if
acreage in Colorado has expanded under the ditches on the main stem
of the river, it has done so because of an improved duty of water;
that, during the period, the river gains due to return flow have
increased, the consumptive use of water has declined, and,
relatively, the stream flows have improved.
The Kansas ditches are capable of diverting water only up to
2,000 c.f.s. When the flow is greater, the excess cannot be
diverted and used. It is admitted that the character of the flow of
the river in Colorado is variable from year to year, from season to
season, and from day to day, and the main river below Canon City
may be almost without water one day, run a flood the next day, and,
on the following day, be in practically its original condition.
Thus, it appears that, both in Colorado and in Kansas, there may at
one time be flood water unavailable for direct diversion and, at
another, not enough water to supply the capacity of diversion
ditches. The critical matter is
Page 320 U. S. 397
the amount of divertible flow at times when water is most needed
for irrigation. Calculations of average annual flow, which include
flood flows, are therefore not helpful in ascertaining the
dependable supply of water usable for irrigation. That supply has,
in Colorado, been supplemented by the extensive use of reservoirs
for storage of flood waters and winter flows not usable or needed
for irrigation. Though western Kansas affords sites for similar
storage reservoirs, but one small basin has been constructed in
that State. On the other hand, the storage in Colorado, and the
release of stored water to supplement the natural flow of the
stream in times of need, operates by seepage and return to the
channel to stabilize and improve the flow at the state line and, to
that extent, benefits irrigation in Kansas.
Kansas relies heavily upon the increase of irrigated acreage in
Colorado since our decision in 1907. The testimony in the earlier
case was closed in 1905. The then latest available census -- for
1902 -- reported 300,115 acres under irrigation in the Arkansas
basin in Colorado. In its opinion, the court referred to this
figure. The next census -- for 1909 -- gives the Colorado acreage
as 464,236. The later reports disclose an addition of less than
5,000 acres between 1909 and 1939. Thus, a total of about 170,000
additional acres has been put under irrigation since 1902. On its
face, this record would seem to indicate a large increase of
consumptive use by Colorado, but the acreage under irrigation does
not afford a reliable measure of actual consumption. When first
turned in, the water is rapidly absorbed by the subsoil, with
consequent high consumption. By continued irrigation, the subsoil
becomes saturated, the water table rises, and water, in increasing
quantities, flows back to the stream. Ultimately consumption falls
well below diversion. The returned water again may be diverted, and
again supply return flows. Since the decision in the earlier case,
studies
Page 320 U. S. 398
of return flows have been made which indicate a steady reduction
in the quantity of water consumed per acre of irrigated land.
Practically all of the affected Kansas ditches are in three
western counties. Tables taken from the United States census show
that, in 1899, acreage irrigated in these counties was 6% of that
irrigated in the Colorado basin. In 1909, it was 7%, in 1929, 9.7%,
and in 1939, 10.7%. It seems that Colorado cannot have depleted the
usable supply passing into Kansas if acreage under irrigation is
any measure of depletion.
Whatever may be said of the practices of Colorado since 1905,
Kansas is not entitled to relief unless she shows they clearly have
entailed serious damage to her substantial interests and those of
her citizens. It is not necessary to quote the findings of this
court made in the earlier case. We need only say they disclose that
some ditches in western Kansas has been abandoned for lack of
available water, and all ditches were suffering from shortages of
flow. The court pointed out that Colorado had authorized diversions
in excess of the flow at Canon City. And the record in the present
case indicates that, except for seepage and return flow, the
appropriations Colorado has authorized from the basin, as a whole,
exceed the available dependable flow of the stream and its
tributaries, and this appears to have been true also in 1901. It
appears, nevertheless, that, since 1904, an increased quantity of
usable water has passed the state line, for it is testified by
Kansas' expert witness that, between 1895 and 1902, no divertible
water passed the line and none between 1903 and 1907, except in
1903 and 1905, whereas, in each year since 1908, divertible water
has crossed the state line in varying quantities and, in most
years, in substantial amounts.
Kansas, however, insists that 414,000 acres in western Kansas
are susceptible of successful irrigation, and much of this land
would have been irrigated had Colorado not
Page 320 U. S. 399
deprived Kansas of her equitable share of the flow. The evidence
is that the acreage now irrigated in Kansas lies close to the river
and along the river bottom. The land claimed to be susceptible of
irrigation extends many miles from the bed of the river. We are
asked to speculate as to how much of this land would have been put
under irrigation under more favorable circumstances.
As has been pointed out, despite Colorado's alleged increased
depletion, the acreage under irrigation in western Kansas through
existing ditches has steadily increased, over the period 1895-1939,
from approximately 15,000 acres to approximately 56,000 acres.
Moreover, the arid lands in western Kansas are underlaid at shallow
depths with great quantities of groundwater available for
irrigation by pumping at low initial and maintenance cost. There is
persuasive testimony that farmers who could be served from existing
ditches have elected not to take water therefrom, but to install
pumping systems because of lower cost.
Again, there is serious question whether lands which are not
riparian may divert the water from the stream for irrigation. In
the earlier suit, Kansas asserted, [
Footnote 11] and the court held, [
Footnote 12] that the common law prevailed in
Kansas and governed the rights of riparian owners. It is true that
the rule as to riparian rights has been expanded by the common law
of Kansas to permit a riparian proprietor reasonable use of the
waters of a stream for irrigation. [
Footnote 13] But such use is subject to the rights of
other riparian owners to a like reasonable use. What is reasonable
must in each instance be determined in the light of total supply
and total need of all riparian owners. [
Footnote 14] It is also true that, beginning in 1886,
Kansas, by statute, recognized appropriation
Page 320 U. S. 400
for irrigation. But there is doubt whether the privilege is not
restricted to riparian owners in some portions of the state. The
Supreme Court of Kansas has held that, where a title originates in
a grant antedating the Act of 1886, the right of appropriation is
limited by the common law as to riparian rights, which are rights
of property derived from the original patent or deed in the line of
title. [
Footnote 15] It
seems that title to much of the land along the Arkansas Valley in
western Kansas was originally granted or patented prior to 1886.
The brief and argument of Kansas, while referring to the statutes
of the state authorizing appropriation, make no reference to the
Kansas decisions and no showing with respect to the right of
nonriparian owners to appropriate waters against objection by other
such owners.
The official census figures submitted bearing upon population of
the western counties of Kansas, and the agricultural production in
them, give no support to a claim that the inhabitants have suffered
for lack of arable and productive land. Generally speaking, the
population has steadily increased, and the agricultural production
has also risen throughout the period in question.
All these considerations persuade us that Kansas has not
sustained her allegations that Colorado's use has materially
increased, and that the increase has worked a serious detriment to
the substantial interests of Kansas.
A decree should be entered enjoining the further prosecution of
the Finney County Association's suits, and dismissing the prayers
of both States for other relief. The parties may submit such a
decree.
[
Footnote 1]
The court overruled a demurrer to the bill and required Colorado
to answer.
Kansas v. Colorado, 185 U.
S. 125.
[
Footnote 2]
[
Footnote 3]
Missouri v. Illinois, 180 U. S. 208;
Kansas v. Colorado, 206 U. S. 46,
206 U. S.
95-96.
[
Footnote 4]
See Washington v. Oregon, 214 U.
S. 205,
214 U. S. 218;
Minnesota v. Wisconsin, 252 U. S. 273,
252 U. S. 283;
New York v. New Jersey, 256 U. S. 296,
256 U. S. 313.
Compare the Colorado River Compact of Nov. 24, 1922,
authorized by Act of August 19, 1921, 42 Stat. 171, and dismissed
in
Arizona v. California, 292 U.
S. 341,
292 U. S. 345,
and compare Hinderlider v. La Plata River Co.,
304 U. S. 92.
[
Footnote 5]
Kansas v. Colorado, supra, 206 U. S.
100.
[
Footnote 6]
Kansas v. Colorado, supra, 206 U. S. 85,
206 U. S.
101-102;
Connecticut v. Massachusetts,
282 U. S. 660,
282 U. S.
669-670;
Washington v. Oregon, 297 U.
S. 517,
297 U. S.
523-526.
[
Footnote 7]
Cases cited in
Note 8
[
Footnote 8]
Missouri v. Illinois, 200 U. S. 496,
200 U. S.
520-521
; New York v. New Jersey, 256 U.
S. 296,
256 U. S. 309;
North Dakota v. Minnesota, 263 U.
S. 365,
263 U. S. 374;
Connecticut v. Massachusetts, 282 U.
S. 660,
282 U. S. 669;
Alabama v. Arizona, 291 U. S. 286,
291 U. S. 292;
Washington v. Oregon, 297 U. S. 517,
297 U. S.
522.
[
Footnote 9]
Washington v. Oregon, 297 U. S. 517,
297 U. S.
526.
[
Footnote 10]
In computing average annual flows, flood waters are included in
the reckoning. As later shown, such annual averages do not
represent the quantities of water usable by diversion ditches for
irrigation.
[
Footnote 11]
206 U. S. 206
U.S. 51,
206 U. S. 52,
58-61 [argument of counsel -- omitted].
[
Footnote 12]
Ibid., 206 U. S. 95,
206 U. S. 99,
206 U. S. 102,
206 U. S.
104.
[
Footnote 13]
Campbell v. Grimes, 62 Kan. 503, 64 P. 62.
[
Footnote 14]
Clark v. Allaman, 71 Kan. 206, 80 P. 571.
[
Footnote 15]
Frizell v. Bindley, 144 Kan. 84, 58 P.2d 95.
Cf.
Smith v. Miller, 147 Kan. 40, 75 P.2d 273.