590
THE GREEN BAG
"The state of Kansas appeals to the rule of the common law, that owners of lands on the banks of a river are entitled to the con tinual flow of the stream, and while she concedes that this rule has been modified in the western states so that flowing water may be appropriated to mining purposes and for the reclamation of arid lands, and the doctrine of prior appropriation obtains, yet she says that modification has not gone so far as to justify the destruction of the rights of other states and their inhabitants altogether; and that the acts of Congress of 1866, and subsequently, while recognizing the prior appropriation of water as in con travention of the common law rule as to a continuous flow, have not attempted to recognize it as rightful to that extent. In other words, Kansas contends that Colo rado cannot absolutely destroy her rights, and seeks some mode of accommodation as between them, while she further insists that she occupies, for reasons given, the position of a prior appropriator herself, if put to that contention as between her and Colorado." ' The various answers to the amended bill denv the allegations about the diversion in Colorado diminishing the flow or the under flow of the Arkansas River in Kansas; the allegations about the damage to land pro prietors in Kansas, and to Kansas itself by the diversion, etc. They go further and allege that the flow of water in the Arkan sas River in Kansas has not been decreased by irrigation in Colorado, but rather "equal ized," because while such irrigation has di minished the volume of the river in times of flood, the seepage from the water used in times of flood has increased the flow of the river in periods of comparative drouth. They further deny that the underflow al leged in the amended bill is really an under flow, but on the contrary, allege that the underground water in the Arkansas valley in Kansas is "the ordinary water-table of the country." They further allege that Kansas is not only guilty of laches, but has, in part, recognized and adopted the doctrine of appropriation of water for irrigation. They all deny in substance that the com1 Kansas v. Colorado, 1^5 U. S. 125, at page 146.
mon law doctrine of riparian rights ever applied in the Arkansas valley region. Colorado goes further and after declaring that Colorado is a sovereign state, that the Arkansas River is non-navigable, and that the right to the continual use of the waters of said stream by diversion and application on the land is as essential to the life and wellbeing of the inhabitants of the valley as is the lands on which they dwell, asserts that under international law and interstate law, Colorado cannot be subjected to the burden of denying its inhabitants the use of an ele ment which nature has supplied entirely within Colorado, and without which, and the free use thereof, its lands would be uninhabitable. The pleadings are quite voluminous, but enough has been stated above to show the general nature of the issues. Thousands of pages of testimony have been taken and the case may go off on a question of fact; for there seems to be considerable ground for contending that even supposing Kansas to be entitled to the strict application of the common law doctrine of riparian rights, she has failed to show any injury done. As, however, the suit looks to the future, and as, by insisting as it does unqualifiedly that its inhabitants have the right to divert for beneficial uses within Colorado (and, of course, only for beneficial uses) all the waters of the Arkansas River, if such uses require all such waters, Colorado threatens future injury to Kansas, the chances are that the legal questions will receive a square deter mination. What adds weight to this belief is that the United States has intervened, stating that both Colorado and Kansas take positions which imperil the interests of the United States; and the Supreme Court will probably feel that as the litigation is before them, the United States is itself entitled to have the legal questions passed on.1 1 The allegation of the United States is: "That neither the contention of the state of Colorado, nor the contention of the state of Kansas is cor rect; nor does either contention accord with the-
