1. The water of an interstate stream, used beneficially in each
of the two States through which it flows, must be equitably
apportioned between the two. P.
304 U. S.
101.
The claim that, on interstate streams, the upper State has such
ownership or control of the whole stream as entitles it to divert
all the water, regardless of any injury or prejudice to the lower
State, has been consistently denied by this Court. P.
304 U. S.
102.
2. A decree of a state court cannot confer a right in the water
of an interstate stream in excess of the State's equitable portion
of such water. P.
304 U. S.
102.
Page 304 U. S. 93
3. A decree of a state court adjudicating to a local user a
right in the water of an interstate stream in excess of the State's
equitable portion thereof is not
res judicata as to
another State and its citizens who claim the right to divert water
from the stream in such other State and who were not parties to the
proceedings. P.
304 U. S.
103.
4. It is not essential to the validity of a compact between
States for the apportionment of the water of an interstate stream
that there be judicial or
quasi-judicial decision in
respect of existing rights. P.
304 U. S.
104.
5. Whether the apportionment of the water of an interstate
stream be made by compact between the upper and lower States with
the consent of Congress or by a decree of this Court, the
apportionment is binding upon the citizens of each State and all
water claimants, including grantees whose rights antedate the
compact or decree. P.
304 U. S.
106.
6. A compact between two States for apportionment of the water
of an interstate stream may provide for division of the water at
times, and at other times for the use of the entire flow by one
State or the other in alternating periods, and authority may
validly be delegated to the States' engineers to determine when the
use should be rotated. P.
304 U. S.
108.
So
held where the evidence conclusively established
that, at the times when rotation was determined upon, the stream
could in that way be more efficiently used.
7. No vitiating infirmity being here shown in the proceedings
preliminary to the La Plata River Compact or in its application,
the apportionment made by it between Colorado and New Mexico of the
water of the La Plata River could not be held to deprive a Colorado
appropriator of any vested right, even though a right had
previously been adjudicated to him in a water proceeding in a court
of that State. P.
304 U. S.
108.
8. The assent of Congress to the La Plata River Compact between
Colorado and New Mexico does not make the compact a "treaty or
statute of the United States" within the meaning of § 237(a) of the
Judicial Code, and a decision of the state court against its
validity is not appealable to this Court. P.
304 U. S.
109.
9. A claim based on the equitable interstate apportionment of
water, like one based on the proper location of a state boundary,
is not within the provisions of § 237(a) of the Judicial Code. P.
304 U. S.
109.
10. The decision of the Supreme Court of Colorado in this case,
restraining the State Engineer from taking action required by the
La Plata River Compact, denied an important claim under the
Page 304 U. S. 94
Constitution, and is reviewable by this Court on certiorari
under § 237(b) of the Judicial Code. P.
304 U.S. 110.
11. Whether the water of stream must be apportioned between the
two States through which it flows is a federal question, upon which
neither the statutes nor decisions of either State can be
conclusive. P.
304 U.S.
110.
12. That the States which are parties to a compact are not
parties to the suit and cannot be made so does not deprive this
Court of jurisdiction to determine the validity and effect of the
compact. P.
304 U.S.
110.
101 Colo. 73, 70 P.2d 849, reversed.
Appeal from the affirmance of a judgment requiring water
officials of Colorado to permit diversion of water from the La
Plata River by the respondent Ditch Company, notwithstanding
contrary provisions of the La Plata River Compact. Appeal
dismissed; certiorari granted.
Page 304 U. S. 95
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
The La Plata River & Cherry Creek Ditch Company, a Colorado
corporation, owns a ditch by which it diverts from that river in
Colorado water for irrigation. On July 5, 1928, it brought in the
district court for La Plata county a suit which charged that, since
June 24, 1928, the defendants, Hinderlider, State Engineer of
Colorado, and his subordinates, have so administered the water of
the river as to deprive the plaintiff of water which it claims the
right to divert. A mandatory injunction was sought.
The defendants admit that, in administering the water of the
stream during the period named, they shut the headgate of the Ditch
Company so as to deprive it of water for purposes of irrigation,
but assert that they did so pursuant to the requirements of the La
Plata River Compact entered into by the States of Colorado and New
Mexico with the consent of the Congress of the United States.
Page 304 U. S. 96
The Compact provides that each State shall receive a definite
share of water under the varying conditions which obtain during the
year, and, among other things: [
Footnote 1]
"1. At all times between the 1st day of December and the 15th
day of the succeeding February, each State shall have the
unrestricted right to the use of all water which may flow within
its boundaries."
"2. By reason of the usual annual rise and fall, the flow of
said river between the 15th day of February and the 1st day of
December of each year shall be apportioned between the States in
the following manner:"
"(a) Each State shall have the unrestricted right to use all the
waters within its boundaries in each day when the mean daily flow
at the interstate station is one hundred cubic feet per second or
more."
"(b) On all other days, the State of Colorado shall deliver at
the interstate station a quantity of water equivalent
Page 304 U. S. 97
to one-half of the mean flow at the Hesperus station for the
preceding day, but not to exceed one hundred cubic feet per
second."
"3. Whenever the flow of the river is so low that, in the
judgment of the State engineers of the States, the greatest
beneficial use of its waters may be secured by distributing all of
its water successively to the lands in each State in alternating
periods, in lieu of delivery of water as provided in the second
paragraph of this article, the use of the waters may be so rotated
between the two States in such manner, for such periods, and to
continue for such time as the State Engineers may jointly
determine."
For the administration of water rights, Colorado and New Mexico
each set up an administrative system with the State Engineers at
its head. The State Engineers agreed that, in order to put the
water to its most efficient use in the hot summer months of 1928,
when the river was very low, the whole of the available supply
should be rotated between the two States. In other words, that each
State should be permitted to enjoy the entire flow of the river
during alternating ten-day periods. During the ten days commencing
June 24, 1928, all the water of the river (except small amounts
diverted in Colorado for domestic and stock requirements) was thus
allowed to pass to New Mexico, and, during the succeeding ten-day
period, all the water in the stream was similarly allowed to be
diverted in Colorado. The defendant water officials contend that,
in so rotating the water of the stream, they administered it as
required by the Compact, and wisely.
The La Plata River rises in the mountains of Colorado, flows in
a southerly direction until it reaches the boundary of New Mexico
and in the latter State until it empties into the San Juan River.
The stream is nonnavigable; has a narrow watershed, and a large
run-off in the early spring. Then the quantity flowing begins to
fall rapidly,
Page 304 U. S. 98
and, during the summer months, little water is available for
irrigation. In each State, the water of the stream has long been
used for irrigation, and each adopted the so-called appropriation
doctrine of water use. [
Footnote
2] Under that doctrine, the first person who acts toward the
diversion of water from a natural stream and the application of
such water to a beneficial use has the first right, provided he
diligently continues his enterprise to completion and beneficially
applies the water. The rights of subsequent appropriations are
subject to rights already held in the stream.
The relative rights of all claimants to divert in Colorado water
from the La Plata River were adjudicated in a proceeding under the
Colorado statutes. By decree therein of January 12, 1898 (and later
amended), the Ditch Company was declared entitled to divert 39 1/4
cubic feet of water per second, subject to five senior priorities
aggregating 19 second feet. On June 24, 1928, there was in the
stream at the recognized Colorado gauging station, 57 second feet
of water. The Ditch Company claimed that, by reason of the 1898
decree, it was entitled to all the water in the stream except that
required to satisfy the Colorado priorities. If it had been
permitted to draw all that water, none would have been available to
the New Mexico water claimants, who, under similar laws, had made
appropriations. Some of them were earlier in date than the Ditch
Company's.
Page 304 U. S. 99
The case was first heard in the District Court on evidence in
1930. The Ditch Company objected at the trial to the admission or
consideration of the Compact. It insisted that the Compact
attempted to surrender to New Mexico, and thus destroy, vested
property rights of Colorado citizens; that this is a violation of
the obligations of its contract, and that the Compact insofar as
it
"applies or is intended to apply to private rights of the
individuals or citizens of Colorado, or to be used as a defense of
or justification for the acts of the State Engineer or his
subordinates in interfering with or violating the private rights of
citizens of Colorado, or in attempting to disregard, ignore or set
aside the decrees of this [District] Court for the distribution of
water in accordance with the decrees, is unconstitutional and
void,"
in violation of the due process clauses of the Fifth and
Fourteenth Amendments of the Federal Constitution and of article 2,
§ 25 of the Constitution of Colorado.
The District Court overruled the objection, found in substance
the facts stated above, held that the Compact justified the action
of defendants, and entered a decree that the bill be dismissed,
each party to bear its own costs. That judgment was reversed by the
Supreme Court of the State (one judge dissenting),
La Plata
River & Cherry Creek Ditch Co. v. Hinderlider, 93 Colo.
128, 25 P.2d 187, 189. The opinion declared:
"There is not the slightest pretense, either in this compact
itself or in the proceedings leading up to it, to a decision of the
question of what water Colorado owns, or what water New Mexico
owns, or what their respective citizens own. It is a mere
compromise of presumably conflicting claims, a trading therein, in
which the property of citizens is bartered, without notice or
hearing and with no regard to vested right."
An appeal to this Court was dismissed for want of final judgment
below.
Hinderlider v. La Plata River & Cherry
Page 304 U. S. 100
Creek Ditch Co., 291 U.S. 650. The case was then
retried by the District Court on the same pleadings and evidence
and, pursuant to the opinion of the Supreme Court of Colorado, a
decree was entered which, after reciting in substance the facts
above stated, declared:
"6. That the said La Plata River Compact, entered into between
the States of Colorado and New Mexico with the consent of the
Congress of the United States of America, does not constitute a
defense to the actions of said defendant water officials complained
of by plaintiff, and is not available to said defendant water
officials, as a legal defense or justification for their acts in
closing and shutting down the headgate of plaintiff and depriving
the said plaintiff thereby of its right to the use of the waters
from said La Plata River for irrigation purposes, as provided by
the terms and provisions of said decree of adjudication of January
12, 1898."
The decree specifically:
"(3) Enjoined and commanded [the defendants] to permit the
diversion through the plaintiff's headgate [of] water for
plaintiff's ditch in accordance with the terms of said decree at
any and all times when there is water in said stream to which said
decree, under its terms and conditions would apply. . . ."
This second judgment of the trial court was affirmed by the
Supreme Court of the State, an additional opinion being delivered
by the court, and a dissent by a different justice. 101 Colo. 73,
70 P.2d 849. An appeal to this Court was allowed by the Acting
Chief Justice of the State. [
Footnote 3] Pursuant to the Act of Congress, August 24,
1937, c. 754, 50 Stat. 751, the attention of the Attorney
General
Page 304 U. S. 101
of the United States was directed to the contention that the
validity of a federal statute is involved, 302 U.S. 646. He filed
memoranda in which he contended that:
"(1) This Court is included in the courts to which section 1 of
the Act of August 24, 1937 is applicable; (2) the constitutionality
of the compact is drawn in question whether or not a decision on
this point is necessary; (3) a compact is an Act of Congress, and
(4) it is an Act 'affecting the public interest.'"
Opposing some of the views expressed by the Attorney General, a
brief was filed on behalf of Delaware, Maryland, New Jersey, New
York, Virginia, the Port of New York Authority and the Delaware
River Joint Commission.
The Ditch Company moved to dismiss the appeal, contending, among
other things, that the mere fact that the Compact was approved by
Congress does not make it a federal statute within the meaning of
the jurisdictional act authorizing appeals. Decision on the motion
to dismiss was postponed to the hearing on the merits. For reasons
to be stated, we are of opinion that the case is not reviewable on
appeal; that it presents a federal question reviewable on
certiorari; that, because of its importance, certiorari should be
granted, and that the judgment must be reversed.
First. As the La Plata River flows from Colorado into
New Mexico and in each State the water is used beneficially, it
must be equitably apportioned between the two. The decision below
in effect ignores that rule. It holds immaterial the fact that the
acts complained of were being done in compliance with the Compact,
and does so on the ground that the Compact, in authorizing
diversion and rotation, violated rights awarded by the January 12,
1898, decree in the Colorado water proceeding; holds that the
decree awarded to the Ditch Company the right to divert from the
river 39 1/4 cubic feet per second (subject
Page 304 U. S. 102
only to the senior Colorado priorities of 19 second feet), even
if, by so doing, it exhausts the whole flow of the stream and
leaves nothing for the New Mexico claimants, and holds that the
right so awarded is a vested property right which the two States,
although acting with the consent of the United States, lacked power
to diminish or modify except by a condemnation proceeding and
payment of compensation. No such proceeding was provided for in the
Compact, and none was had otherwise.
It may be assumed that the right adjudicated by the decree of
January 12, 1898, to the Ditch Company is a property right,
indefeasible so far as concerns the Colorado, its citizens, and any
other person claiming water rights there. But the Colorado decree
could not confer upon the Ditch Company rights in excess of
Colorado's share of the water of the stream, and its share was only
an equitable portion thereof.
The claim that, on interstate streams, the upper State has such
ownership or control of the whole stream as entitles it to divert
all the water, regardless of any injury or prejudice to the lower
State, has been made by Colorado in litigation concerning other
interstate streams, but has been consistently denied by this Court.
The rule of equitable apportionment was settled by
Kansas v.
Colorado, 206 U. S. 46,
206 U. S. 97. It
was discussed again in
Wyoming v. Colorado, 259 U.
S. 419,
259 U. S. 466,
where the Court said:
"The contention of Colorado that she as a state rightfully may
divert and use, as she may choose, the waters flowing within her
boundaries in this interstate stream, regardless of any prejudice
that this may work to others having rights in the stream below her
boundary, cannot be maintained. The river throughout its course in
both states is but a single stream, wherein each state has an
interest which should be respected by the other. A like contention
was set up by Colorado in her answer in
Page 304 U. S. 103
Kansas v. Colorado, and was adjudged untenable. Further
consideration satisfies us that the ruling was right."
And in
New Jersey v. New York, 283 U.
S. 336,
283 U. S.
342-343, the Court said of an interstate stream:
"It offers a necessity of life that must be rationed among those
who have power over it. New York has the physical power to cut off
all the water within its jurisdiction. But clearly the exercise of
such a power to the destruction of the interest of lower States
could not be tolerated. And, on the other hand, equally little
could New Jersey be permitted to require New York to give up its
power altogether in order that the river might come down to it
undiminished. Both States have real and substantial interests in
the River that must be reconciled as best they may."
The decree obviously is not
res judicata so far as
concerns the New Mexico and its citizens who claim the right to
divert water from the stream in New Mexico. As they were not
parties to the Colorado proceedings, they remain free to challenge
the claim of the Ditch Company that it is entitled to take in
Colorado all the water of the stream and leave nothing for them.
[
Footnote 4]
Second. The declared purpose of the Compact was, as the
preamble recites, equitable apportionment:
"The State of Colorado and the State of New Mexico, desiring to
provide for the equitable distribution of the waters of the La
Plata River and to remove all causes of present and future
controversy between them with respect thereto, and being moved by
considerations of interstate comity, pursuant to Acts of their
respective legislatures, have resolved to conclude a compact for
these purposes and have named as their Commissioners Delph
Page 304 U. S. 104
E. Carpenter, for the Colorado, and Stephen B. Davis, Junior,
for the New Mexico, who have agreed upon the following
articles."
The Supreme Court of Colorado held the Compact unconstitutional
because, for aught that appears, it embodies not a judicial, or
quasi-judicial, decision of controverted rights, but a
trading compromise of conflicting claims. The assumption that a
judicial or
quasi-judicial decision of the controverted
claims is essential to the validity of a compact adjusting them
rests upon misconception. It ignores the history and order of
development of the two means provided by the Constitution for
adjusting interstate controversies. The compact -- the legislative
means -- adapts to our Union of sovereign States the age-old
treatymaking power of independent sovereign nations. Adjustment by
compact without a judicial or
quasi-judicial determination
of existing rights had been practiced in the Colonies, [
Footnote 5] was practiced by the States
before the adoption of the Constitution, [
Footnote 6] and had been extensively practiced in the
United States for nearly half a century before this Court first
applied the judicial means in settling the boundary dispute in
Rhode Island v.
Massachusetts, 12 Pet. 657,
37 U. S.
723-725. [
Footnote
7]
The extent of the existing equitable right of Colorado and of
New Mexico in the La Plata River could obviously
Page 304 U. S. 105
have been determined by a suit in this Court, as was done in
Kansas v. Colorado, supra, in respect to rights in the
Arkansas River, and in
Wyoming v. Colorado, supra, in
respect to the Laramie. [
Footnote
8] But resort to the judicial remedy is never essential to the
adjustment of interstate controversies, unless the States are
unable to agree upon the terms of a compact, or Congress refuses
its consent. The difficulties incident to litigation have led
States to resort with frequency to adjustment of their
controversies by compact, even where the matter in dispute was the
relatively simple one of a boundary. In two such cases, this Court
suggested "that the parties endeavor with consent of Congress to
adjust their boundaries."
Minnesota v. Wisconsin,
252 U. S. 273,
252 U. S. 283;
Washington v. Oregon, 214 U. S. 205,
214 U. S.
217-218. [
Footnote
9] In
New York v. New Jersey, 256 U.
S. 296,
256 U. S. 313,
which involved a more intricate problem of rights in interstate
waters, the recommendation that treatymaking be resorted to was
more specific; [
Footnote 10]
and compacts for the apportionment
Page 304 U. S. 106
of the water of interstate streams have been common. [
Footnote 11]
Third. Whether the apportionment of the water of an
interstate stream be made by compact between the upper and lower
States with the consent of Congress or by a decree of this Court,
the apportionment is binding upon the citizens of each State and
all water claimants, even where the State had granted the water
rights before it entered into the compact. That the private rights
of grantees of a State are determined by the adjustment by compact
of a disputed boundary was settled a century ago in
Poole v.
Fleeger, 11 Pet. 185,
36 U. S. 209,
where the Court said:
"It cannot be doubted that it is a part of the general right of
sovereignty belonging to independent nations to establish and fix
the disputed boundaries between their respective territories, and
the boundaries so established and fixed by compact between nations
become conclusive upon all the subjects and citizens thereof and
bind their rights, and are to be treated to all intents and
purposes as the true and real boundaries. This is a doctrine
universally recognized in the law and practice of nations. It is a
right equally belonging to the states of this Union unless it has
been surrendered under the constitution of the United States. So
far from there being any pretense of such a general surrender of
the right, that it is expressly recognized by the constitution, and
guarded in its exercise by a single limitation or restriction
requiring the consent of congress."
In
Rhode Island v.
Massachusetts, 12 Pet. 657,
37 U. S. 725,
discussing the origin and scope of the Compact clause, said:
Page 304 U. S. 107
"If Congress consented, then the states were in this respect
restored to their original inherent sovereignty, such consent being
the sole limitation imposed by the Constitution, when given, left
the states as they were before, as held by this Court in
Poole
v. Fleeger, 11 Pet.
36 U. S. 209, whereby their
compacts became of binding force, and finally settled the boundary
between them, operating with the same effect as a treaty between
sovereign powers. -- that is, that the boundaries so established
and fixed by compact between nations become conclusive upon all the
subjects and citizens thereof, and bind their rights, and are to be
treated to all intents and purposes, as the true real
boundaries."
See also Garcia v. Lee,
12 Pet. 511,
37 U. S. 521;
Coffee v. Groover, 123 U. S. 1,
123 U. S. 29-31;
Virginia v. Tennessee, 148 U. S. 503,
148 U. S.
525.
The rule as applied to the apportionment by judicial decree of
the water of an interstate stream was stated in
Wyoming v.
Colorado, 286 U. S. 494,
286 U. S.
508:
"But it is said that water claims other than the tunnel
appropriation could not be, and were not, affected by the decree,
because the claimants were not parties to the suit or represented
therein. In this, the nature of the suit is misconceived. It was
one between states, each acting as a
quasi-sovereign and
representative of the interests and rights of her people in a
controversy with the other. Counsel for Colorado insisted in their
brief in that suit that the controversy was 'not between private
parties,' but 'between the two sovereignties of Wyoming and
Colorado,' and this Court, in its opinion, assented to that view,
but observed that the controversy was one of immediate and deep
concern to both states, and that the interests of each were
indissolubly linked with those of her appropriators. 259 U.S.
259 U. S. 468. Decisions in
other cases also warrant the conclusion that the water claimants in
Colorado
Page 304 U. S. 108
and those in Wyoming were represented by their respective
states, and are bound by the decree."
Fourth. As the States had power to bind by compact
their respective appropriators by division of the flow of the
stream, they had power to reach that end either by providing for a
continuous equal division of the water from time to time in the
stream or by providing for alternate periods of flow to the one
State and to the other of all the water in the stream. To secure
"the greatest beneficial use of" the water in the stream, the
Compact provided that the water may be "rotated between the two
States, in such manner for such periods, and to continue for such
time as the State Engineers may jointly determine." That such
alternate rotating flow was then a more efficient use of the stream
than if the flow had been steadily divided equally between the
Colorado and the New Mexico appropriators was conclusively
established by the evidence. That is, the rotating supply which the
Compact authorized, and the two State Engineers agreed upon, was
clearly more beneficial to the Ditch Company than to have given to
it and other Colorado appropriators steadily one-half of the water
in the river. The delegation to the State Engineers of the
authority to determine when the waters should be so rotated was a
matter of detail clearly within the constitutional power. There is
no claim that the authority conferred was abused.
Fifth. As Colorado possessed the right only to an
equitable share of the water in the stream, the decree of January
12, 1898, in the Colorado water proceeding did not award to the
Ditch Company any right greater than the equitable share. Hence,
the apportionment made by the Compact cannot have taken from the
Ditch Company any vested right unless there was in the proceedings
leading up to the Compact or in its application some vitiating
infirmity. No such infirmity or illegality
Page 304 U. S. 109
has been shown. There is no allegation in the pleadings, no
evidence in the record, no suggestion in brief or argument that the
apportionment agreed upon by the commissioners was entered into
without due enquiry, or that it was not an honest exercise of
judgment, or even that it was, or is, inequitable. The fact that
the appointment of the Joint Commissioners was authorized in 1921,
that their agreement was not adopted by the States until 1923, and
that it was not approved by Congress until 1925 shows that there
was ample time for consideration by all concerned. There is no
suggestion that the Ditch Company, or indeed anyone else, was
denied by the commissioners opportunity to be heard, or even that
any water claimant objected to the terms of the Compact. It appears
that, although the Colorado was not permitted to intervene in this
litigation,
Colorado v. La Plata River & Cherry Creek Ditch
Co., 101 Colo. 368, 73 P.2d 997, its Attorney General
represented the State's water officials. Moreover, the Compact
provides in Article VI that it "may be modified or terminated at
any time by mutual consent," and there is not even a suggestion
that either State or the Ditch Company has expressed a desire to
modify or terminate it.
Sixth. The water officials rely for their defense upon
the rule requiring equitable apportionment of the water of an
interstate stream and the action of Congress in approving the
adjustment of the equitable apportionment which the States made by
their compacts. The assent of Congress to the compact between
Colorado and New Mexico does not make it a "treaty or statute of
the United States" within the meaning of section 237(a) of the
Judicial Code, as amended, and no question as to the validity of
the consent is presented.
People v. Central
Railroad, 12 Wall. 455. A claim based on the
equitable interstate apportionment of water, like one based on the
proper location of a State boundary, is not within the provisions
of
Page 304 U. S. 110
§ 237(a).
Rust Land & Lumber Co. v. Jackson,
250 U. S. 71. The
appeal must therefore be dismissed. But, in holding that the State
Engineer and his subordinates should be enjoined from taking action
required by the Compact, the State Court denied an important claim
under the Constitution which may be reviewed on certiorari by this
Court under § 237(b), as amended. For the decision below
necessarily rests upon the premise that, at the time the compact
was made, Colorado was absolutely entitled to at least 58 1/4 cubic
feet of water per second, regardless of the amount left for New
Mexico. The judgment cannot stand if this determination is
erroneous. For whether the water of an interstate stream must be
apportioned between the two States is a question of "federal common
law" upon which neither the statutes nor the decisions of either
State can be conclusive.
Kansas v. Colorado, 206 U. S.
46,
206 U. S. 95,
206 U. S. 97-98;
Connecticut v. Massachusetts, 282 U.
S. 660,
282 U. S.
669-671;
New Jersey v. New York, 283 U.
S. 336,
283 U. S.
342-343;
Washington v. Oregon, 297 U.
S. 517,
297 U. S. 528.
Jurisdiction over controversies concerning rights in interstate
streams is not different from those concerning boundaries. These
have been recognized as presenting federal questions. [
Footnote 12]
It has been suggested that this Court lacks jurisdiction to
determine the validity and effect of the Compact because Colorado
and New Mexico, the parties to it, are not
Page 304 U. S. 111
parties to this suit and cannot be made so. The contention is
unsound. The cases are many where title to land dependent upon the
boundary between States has been passed upon by this Court upon
review of judgments of federal and of State courts in suits between
private litigants. [
Footnote
13]
Reversed.
MR. JUSTICE CARDOZO took no part in the consideration or
decision of this case.
[
Footnote 1]
The Compact had its inception in 1921, when the legislature of
each state authorized the appointment of a commissioner who shall
represent the State
"upon a Joint Commission . . . to be constituted by said states
for the purpose of negotiating and entering into a compact or
agreement between said states, with consent of Congress, respecting
the future utilization and disposition of the waters of the La
Plata River, and all streams tributary thereto, and fixing and
determining the rights of each of said states to the use, benefit,
and disposition of the waters of said stream, provided, however,
that any compact or agreement so entered into on behalf of said
states shall not be binding or obligatory upon either of said
states or the citizens thereof unless and until the same shall have
been ratified and approved by the Legislatures of both states, and
by the Congress of the United States."
Colo.Session Laws, 1921, p. 803, § 1; Session Laws of New
Mexico, 1921, c. 147, p. 323, § 1.
The compact drafted by the commissioners was ratified by the
General Assembly of New Mexico on February 7, 1923, Session Laws of
New Mexico, 1923, c. 7, p. 13, and by the General Assembly of
Colorado on April 13, 1923, Colorado Session Laws, 1923, p. 696.
The consent of Congress was granted by Act of January 29, 1925, 43
Stat. 796.
[
Footnote 2]
Colorado Constitution, art. 16, § 5, provides:
"The water of every natural stream, not heretofore appropriated,
within the state of Colorado, is hereby declared to be the property
of the public, and the same is dedicated to the use of the people
of the state, subject to appropriation as hereinafter
provided."
Article 16, § 6, provides in part:
"The right to divert the unappropriated waters of any natural
stream to beneficial uses shall never be denied. Priority of
appropriation shall give the better right as between those using
the water for the same purpose."
For the law of New Mexico,
see its Constitution, art.
16, §§ 2 and 3.
[
Footnote 3]
The first judgment in the trial court was entered June 16, 1930;
the first judgment of the Supreme Court of Colorado on July 3,
1933; the dismissal by this Court of the first appeal on March 12,
1943; the second judgment in the trial court on May 12, 1936; the
second judgment of the Supreme Court of Colorado on July 6,
1937.
[
Footnote 4]
Washington v. Oregon, 297 U. S. 517,
297 U. S. 528.
Compare 3 U. S.
Lindsey, 3 Dall. 411,
3 U. S. 412;
Arkansas v. Tennessee,
246 U. S. 158,
246 U. S.
176.
[
Footnote 5]
Nine colonial boundary agreements are listed by Frankfurter and
Landis, The Compact Clause of the Constitution -- A Study in
Interstate Adjustments (1925) 34 Yale L.J. 685, 730-732.
[
Footnote 6]
Five agreements made under the Articles of Confederation have
been found.
See Frankfurter and Landis,
supra,
note 5 at 732-734.
[
Footnote 7]
Nine compacts were apparently executed in this period (although
five of these were without express Congressional consent).
See Frankfurter and Landis,
supra, note 5 at 735-737, 749-752.
See also
Ely, Oil Conservation through Interstate Agreement (1933) 371, 372,
389-391; (June 1936) 9 State Government 118; Dodd, Interstate
Compacts (1936) 70 U.S.L.Rev. 557, 574. The agreement between New
Jersey and New York in 1833 put an end to the boundary suit begun
in 1829.
New Jersey v. New
York, 3 Pet. 461;
30 U. S. 5 Pet.
284;
31 U. S. 6 Pet.
323.
[
Footnote 8]
See also Connecticut v. Massachusetts, 282 U.
S. 660;
283 U. S. 789
(Connecticut River);
New Jersey v. New York, 283 U.
S. 336;
283 U. S. 805
(Delaware River);
Wyoming v. Colorado, 286 U.
S. 494;
298 U. S. 298 U.S.
573 (Laramie River);
Washington v. Oregon, 297 U.
S. 517 (Walla Walla River). Three other water
apportionment suits are pending in this Court.
Colorado v.
Kansas, Original No. 6 (Arkansas River);
Nebraska v.
Wyoming, 295 U. S. 40,
Original No. 9 (North Platte River);
Texas v. New Mexico,
Original No. 11 (Rio Grande).
[
Footnote 9]
The long drawn-out irritating boundary litigation,
Rhode
Island v. Massachusetts, 7 Pet. 651;
36 U. S. 11 Pet.
226;
37 U. S. 12 Pet.
657;
Massachusetts v. Rhode
Island, 12 Pet. 755;
Rhode
Island v. Massachusetts, 13 Pet. 23;
39 U. S. 14 Pet.
210;
40 U. S. 15 Pet.
233;
45 U. S. 4 How.
591, was finally settled by a Compact.
See Frankfurter and
Landis,
supra, note 5
at 696, 737, 738.
[
Footnote 10]
"We cannot withhold the suggestion, inspired by the
consideration of this case, that the grave problem of sewage
disposal presented by the large and growing populations living on
the shores of New York Bay is one more likely to be wisely solved
by cooperative study and by conference and mutual concession on the
part of representatives of the states so vitally interested in it
than by proceedings in any court, however constituted."
P.
256 U. S.
313.
[
Footnote 11]
Congress has consented to 15 such compacts, of which 5 have been
ratified by two or more of the contracting States.
See
State Government,
supra, note 7 at 120-21.
See also Ely,
supra,
note 7 at 381-88; Dodd,
supra, note 7 at
574-78.
[
Footnote 12]
Cissna v. Tennessee, 246 U. S. 289,
246 U. S. 295;
compare Rust Land & Lumber Co. v. Jackson,
250 U. S. 71,
250 U. S. 76. In
Howard v.
Ingersoll, 13 How. 381, this Court reversed the
Supreme Court of Alabama's decision, 17 Ala. 780, locating the
Alabama-Georgia boundary, which depended upon the construction of a
cession of territory by Georgia to the United States in 1802.
Compare Coffee v. Groover, 123 U. S.
1,
123 U. S. 8. The
decisions are not uniform as to whether the interpretation of an
interstate compact presents a federal question.
Compare
79 U. S. Central
Railroad, 12 Wall. 455,
with Wedding v. Meyler,
192 U. S. 573,
and Wharton v. Wise, 153 U. S. 155.
[
Footnote 13]
Compare 18 U. S.
Anthony, 5 Wheat. 374;
Howard v.
Ingersoll, 13 How. 381;
Poole v.
Fleeger, 11 Pet. 185;
Coffee v. Groover,
123 U. S. 1;
St.
Louis v. Rutz, 138 U. S. 226;
Moore v. Maguire, 205 U. S. 214;
Cissna v. Tennessee, 246 U. S. 289;
Marine Ry. & Coal Co. v. United States, 257 U. S.
47;
Smoot Sand & Gravel Corp. v. Washington
Airport, 283 U. S. 348.