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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




VOL. 14.                           JuNE, 1907.                            No. 1.

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       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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