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14 Case & Com. 1 (1907-1908)

handle is hein.journals/cscmt14 and id is 1 raw text is: Case and Comment NOTES OF RECENT IMPORTANT, INTERESTING DECISIONS, INDEX TO ANNOTATION OF THE LAWYERS REPORTS ANNOTATED LEGAL NEWS NOTES AND FACETILE VOL. 14. JuNE, 1907. No. 1. CASE AND COMMENT. Monthly. Subscription, 50 cents per annum post paid. Single numbers, 5 cents. THE LAWYERS CO-OPERATIVE PUB. CO., Rochester, N. Y. NEW YORK, 81 Nassau St. CHICAGO, 505 Lakeside Bldg. The Kansas-Colorado Case. The conflicting interests of neighboring states in the waters of a river flowing through them present a question just decided for the first time by the Supreme Court of the United States in the suit of Kansas v. Colorado, Adv. S. U. S. 1906, p. 655, 27 Sup. Ct. Rep. 655, to prevent such use of the waters of the Arkansas river in Colorado as would cause such depletion of the waters as would cause injury to the in- terests of the people of Kansas. The at- tempt of the United States to intervene on the ground that the superior right of the national government to control the flow of the river as a part of the system for the reclamation of arid lands was denied by the court, without prejudice to the right of intervention if necessary to preserve or im- prove the navigability of the river. This was because the Constitution gives to the Federal government the right to regulate navigable waters, but does not grant to it any power over the reclamation of arid lands in the states. The right of the state of Kansas to bring the suit is sustained on the ground that the question involved is a matter of state interest affecting the general welfare of the state, and that, in bringing such an action, the state was not merely represent- ing individual citizens. A somewhat sur- prising contention on the part of Colorado was that the Arkansas river in that state terminated at or near the state line, and that the Arkansas in Kansas was a new river, beginning some distance farther on; but the court found that the river was con- tinuous, though at times a portion of the bed might be dry on the surface. The great question of the right of the people of Colo- rado to take water from a river for irriga- tion, thereby diminishing the flow to some extent, and causing some detriment to riparian owners in Kansas, involved, first, the question whether the common-law rule of riparian rights, or the doctrine of ap- propriation of waters, should govern, and, second, if 'the use of the waters for irriga- tion was lawful, to what extent it might go. The court held that it was for each state to determine whether the common-law rule, or the doctrine of appropriation, should govern in its territory; and also that, since Kansas itself recognized the right of appro- priation for the purpose of irrigation, she could not complain of the adoption of that law by Colorado. As to the extent to which the appropriation might be made, the court said it must so adjust the dispute upon the basis of equality of rights as to secure, as far as possible, to Colorado the benefits of irrigation, without depriving Kansas of the like beneficial effects of a flowing stream. Finding that some detriment had resulted to a portion of the Arkansas valley in Kan-

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