594
THE GREEN BAG
on such basis, riparian owners in the down stream state may easily be held to be appropriators and as such entitled to share, ac cording to priorities of appropriation, in the waters of the interstate stream. In other words, the situation between an appropria tion-law state higher up on a stream and a riparian-law state below, with respect to that particular stream, should be held to be the same as that which exists where two appropriation-law states are disputing over water. In the latter case it has been held that an appropriator in the lower state can go into the federal court and compel, the appropriators in the upper state to allow enough water to come down to give him his rightful share.1 While the appropriator in the lower state cannot go into the upper state's courts and compel an adjudication of his priority of rights under the latter's local statutes,2 he can go into the federal courts 1 Howell v. Johnson, 89 Fed. 556. To the same effect is a so far unreported decision by Judge Hallett in the Circuit Court for the Dis trict of Colorado in the case of Hoge v. Eaton. The opinion in that case was filed Feb. 27, 1905. See also Willey v. Decker (Wyo.), 73 Pac. 210. 2 Lamson v. Vailes (Colo.), 61 Pac. 23. That the courts of the upper state cannot, even by consent, adjudicate finally the rights of waterusers in the lower state, see Conant v. Deep Creel: etc., Irrigation Co. (Utah), 66 Pac. 188. But see Willey v. D.ecker (Wyo.), 73 Pac. 210, apparently'contra.
and get adequate relief. So a riparian pro prietor appropriator,1 living though he does in a down-stream state, should be given the protection in the federal courts against di version in an up-stream state which he would be given if he were an appropriator in a down-stream appropriation law state. In closing it should be said that in the Kansas-Colorado water suit a serious con dition is presented, and the Supreme Court of the United States is the one to deal with it. As that court points out: "The states of this Union cannot make war upon each other; they cannot make reprisal on eacli other by embargo; they cannot enter upon diplomatic relations and make treaties," 2 and it is, therefore, the duty of the United States Supreme Court to adjust the waterrights of the inhabitants of Kansas and of Colorado. It is believed that this can be done most equitably by adopting the gen eral legal doctrine advocated by the intervenor, the United States, viz: That priority in the appropriation of water, regardless of which state the appropriation was made in, must control. DENVER, COL., September, 1905. 1 This is a correct designation, owing to the fact that even the riparian-rights doctrine allows the reasonable use of the waters of a stream for irrigation. See Long on Irrigation, Sec. n. 2 Kansas v. Colorado, 185 U. S. 125, at page
