THE KANSAS-COLORADO WATER SUIT The fight on the legal propositions in the Kansas-Colorado case is, therefore, three cor nered. Colorado insists that in all streams taking their rise in Colorado the inhabitants of Colorado have a right to diversion of water, qualified only by the requirement that the water shall be put to beneficial use, and, therefore, a right which, if sufficient beneficial uses can be found in Colorado, may by its exercise, utterly cut off the in habitants of another state from any use of the waters of such streams. Kansas, on the other hand, insists in general that interstate streams entering Kansas must be allowed an uninterrupted, unimpeded, and undiminished flow into that state, though conces sions are made in argument to the court in favor of appropriators in Colorado whose rights have already vested. The United States insists that both Colorado and Kan sas are wrong and that the true view is that the doctrine of appropriation must pre vail, but without any limitation by state lines. Since the Kansas-Colorado case was started, the Supreme Court of Kansas has decided that the riparian-rights doctrine prevails in that part of Kansas affected by the suit.1 There would seem no longer to be any question, therefore, that unless the Kansas-Colorado case goes off on matters of fact, it presents squarely for determina tion the rights in a riparian-law state of proprietors of riparian lands in an inter state stream which takes its rise in a state doctrine prevailing in the arid region in respect to the waters of natural streams and of flood and other waters. That either contention, if sus tained, would defeat the object, intent, and pur pose of the Reclamation Act, prevent the settlement and sale of the arid lands belonging to the United States, and especially those within the watershed of the Arkansas River west of the gcth degree west longitude, and would otherwise work great damage to the interests of the United States." 1 Clark v. Allaman (Kas., April 8, 1905), 80 Pac. S7I. The attorney-general of Kansas ap peared in the case as amicus curiae, because of the bearing of the litigation on the Kansas-Colorado suit.
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where the appropriation of water doctrine in its extreme form is adopted. It takes no prophet, however, to say that the United States Supreme Court will never hold that a riparian-law state lower down on an inter state stream can prevent any diversion and dissipation of the water in an appropriationlaw state higher up;1 just as it takes no prophet to say that the court will not per mit the state where the interstate stream takes its rise to keep states lower down on the stream from having any benefit of the waters of the stream; 2 and it seems certain that some interstate application 'of the ap propriation of water doctrine will be the ultimate result. To make this apparent it is necessary only to consider briefly the his tory of landownership in the arid region. With the exception of certain Spanish and Mexican land grants to individuals, which do not affect the question in hand to any appreciable extent, all the lands in the arid region were acquired by, and, therefore, be longed originally to, the United States. • 1 See U. S. v. Rio Grande Co., 174 U. S. 690, where the right of an up-stream state to adopt the appropriation of water doctrine is affirmed. 2 Kansas v. Colorado, 185 U. S. 125. See Howell v. Johnson, 89 Fed. 556. That the lower state is entitled to all surplus waters cannot, of course, be doubted. Perkins County, Neb. v. Graff, 114 Fed. 441. Colorado would never allow an individual landproprietor, in whose lands were springs which had supplied the water which had been used for years by lower proprietors, to terminate the latter's enjoyment of the water, by himself devoting to beneficial uses all the waters of the stream. It is only where one has artificially developed water that previously was not there that he is entitled to come in ahead of lower proprietors. See Platte Valley Irrigation Co. v. Buckers Co., 25 Colo. 77. For a case where the latter doctrine was carried to an extreme, see Crescent Mining Co. v. Silver King Mining Co., 17 Utah, 444. The Supreme Court of the United States cannot be expected to give to Colorado as against Kansas greater rights than the Supreme Court of Colorado would give to an upper proprietor in whose lands a stream took its rise as against a lower proprie tor. Its decision on the demurrer so indicates. Kansas v. Colorado, 185 U. S. 125.
