Opinion — Wyoming v. Colorado

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WYOMING v. COLORADO. 419

Syllabus.

STATE OF WYOMING v. STATE OF COLORADO

ET AL.

IN EQUITY.

No. 3, Original. Argued December 6, 7, 8, 1916; restored to docket

for reargument March 6, 1917; reargued January 9, 10, 11, 1918;

restored to docket for reargument June 6, 1921; reargued January

9, 10, 1922.—Decided June 5, 1922.

1. The waters of an innavigable stream rising in one State and flowing

into a State adjoining may not be disposed of by the upper State

as she may choose, regardless of the harm that may ensue to the

lower State and her citizens. P. 466.

2. The relative rights of two adjoining States te the use of an in-

navigable interstate stream, must be determined in accordance

with right and equity and in harmony with the constitutional

principle of state equality. Pp. 465, 470.

3. This does not imply an equal division of the water between the

two States. P. 465. Kansas v. Colorado, 206 U. 8. 46.

4. The doctrine of appropriation, by which priority of appropriation

gives superiority of right, affords the only equitable basis for deter-

mining this controversy, in which Wyoming seeks to prevent diver-

sion of water from the headwaters of the Laramie River in Colo-

rado for use in irrigating Colorado lands, to the detriment of prior

irrigation appropriations made from the same stream in Wyoming.

P. 467.

So held, in view of the early adoption and continual practice of the

doctrine in both jurisdictions alike, sanctioned by the United

States as owner of the public lands, its perpetuation in the con-

stitutions of both States at the times of their creation as a doctrine

already existing and essential to their natural conditions, its rela-

tion to the settlement and irrigational and agricultural enterprises

in both, and the recognition in both of the right to appropriate

water from interstate streams. ;

5. In applying the doctrine of appropriation in this case, pnvate

appropriations should be recognized in the order of their priority,

as they would be if the stream lay wholly in either State. Pp. 468,

470.

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420 OCTOBER TERM, 1921.

Syllab»s. 259 U.S.

6. Such recognition of private rights held not inappropriate in a suit

between the two States, in view of the relation of the appropria-

tions to taxable values, and to the welfare, prosperity and happi-

ness of people in each State. P. 468.

7. In as much as the doctrine of appropriation, as it exists within

these two States, was adopted, and practised from the beginning,

with the sanction of the United States as owner of the public lands,

and in as much as the United States does not now seek to impose

any policy of its own choosing on either State, the question

whether, in virtue of such ownership, it might do so, is not here

considered. P. 465.

8. The fact that the proposed diversion is to another watershed from

which Wyoming can receive no benefit is not in itself a valid

objection, since like diversions are made and recognized as lawful

in both States. P. 466.

9. The doctrine of appropriation lays upon each State a duty to

exercise her right reasonably and in a manner calculated to con-

serve the common supply. P. 484.

10. The evidence establishes:

(a) The average yearly flow of the Laramie River, in Wyoming, is

? not a proper measure of the supply practically available there from

year to year. P. 471.

(6) Computation should be based on the unalterable need for a

supply that is fairly constant and dependable, or susceptible of

being made so by storage and conservation within practicable

limits; substantial stability of supply being essential to successful

reclamation and irrigation. P. 480.

(c) The reasonable measure of the supply available in Wyoming for

practical use is not the lowest natural yearly flow, but something

considerably greater, obtainable by storage. P. 484.

(d) So measured, the entire supply, from the Laramie and from

certain tributaries in Wyoming, available for Wyoming appropria-

tions here involved and for the proposed Colorado appropriation,

is 288,000 acre-feet per annum. P. 488.

(e) The Wyoming appropriations senior to the proposed Colorado

appropriation require 272,500 acre-feet, and the overplus available

fer that appropriation is therefore restricted to 15,500 acre-feet,

per annum. P. 496.

11. Permits, issued by the State Engineer of Wyoming, to appro-

priate water in specified quantity from the stream, are mere

licenses, and not adjudications that a surplus subject to appro-

priation exists. P. 488.

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WYOMING v. COLORADO. 421

419. Argument for Wyoming.

12. The proposed Colorado appropriation is to be dated from the

time when the project became a fixed plan with a definite purpose,

and when work upon it was begun; not related back to an earlier

date, when the project was inceptive and uncertain; and, by the

same rule, several of the Wyoming appropriations are treated as

relating to dates later than those claimed for them. Pp. 490-495.

THIs was an original suit, brought in this court by the

State of Wyoming against the State of Colorado and two

Colorado corporations, for the purpose of preventing a

diversion of part of the water of the Laramie River, a

stream flowing from Colorado into Wyoming. The facts

are fully stated in the opinion, post, 455. The bill was

filed on May 29, 1911. A motion to dismiss, equivalent

to a demurrer, was argued and, on October 21, 1912, was

overruled without prejudice. The case was argued, and

twice reargued, on final hearing, the United States parti-

cipating in the last two arguments, by leave of the court.

In the following summaries of the arguments made

upon the last occasion, discussion of the facts is for the

most part omitted.

Mr. N. E. Corthell and Mr. John W. Lacey, with whom

Mr. Douglas A. Preston, Attorney General of the State

of Wyoming, Mr. John D. Clark and Mr. Herbert V.

Lacey were on the briefs, for complainant.

In Colorado and Wyoming, and in every other State

where irrigation is practiced, it is held to be the only

equitable rule that the rights of a prior appropriator shall

be considered exclusive, and that he shall at all times take

from the stream such amount of water as he needs up to

the full amount of his appropriation, without any require-

ment that he divide with other appropriators in times of

scarcity. He is not obliged to build reservoirs, nor store

the water, but may take it from the stream as it was run-

ning when he first appropriated; he is not required to

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422 OCTOBER TERM, 1921.

Argument for Wyoming. 259 U.S.

make any expenditures whatever, in order that others may

have water. Indeed, to require that he shall incur the

expense necessary in storing water would often be to de-

stroy his priority, since the expense would be more than

the value of his prior right. 1 Wiel, Water Rights, 3d ed.,

§ 279; 2 Kinney, Irrigation, 2d ed., § 801, p. 1398; Conant

v. Deep Creek Co., 23 Utah, 627; Hill v. Smith, 27 Cal.

476, 482; Smith v. Denniff, 24 Mont. 20; Phoenix Water

Co. v. Fletcher, 23 Cal. 482; Wyatt v. Larimer & Weld

Co., 18 Colo. 298; Comstock v. Ramsey, 55 Colo. 244;

Barnes v. Sabron, 10 Nev. 217; Willey v. Decker, 11 Wyo.

496; Rev. Stats. § 2339; United States v. Rio Grande Co.,

174 U. S. 704.

The rights of the prior appropriator are especially

active in time of water deficiency. Avery v. Johnson, 59

Wash. 332; Huning v. Porter, 6 Ariz. 171; 1 Wiel, Water

Rights, § 301.

In accordance with these principles, Wyoming, during

the irrigation season of each year, is entitled to the flow

of the stream as it may at the time naturally flow, up to

the amount necessary to supply the Wyoming appropria-

tions that are prior in time to the inception of the Colo-

rado attempt at diversion. All of the evidence, without

contradiction, shows that, in practically every year during

the irrigation season, the entire stream flow is not only

taken by the Wyoming prior appropriators but is neces-

sary for the purposes of irrigating their lands; and in

many of the years—dry years as they are called,—the

water in the stream is insufficient for the concededly prior

Wyoming appropriations. If the water were being di-

verted by Colorado into reservoirs within the watershed,

then the objection to such diversion would be less serious.

If it were diverted within the watershed, it would not be

difficult, under the Wyoming system, or indeed under any

system, to require the owners of the reservoir in the water-

shed into which the water is diverted to turn it back into

WYOMING v. COLORADO. 423

419. Argument for Wyoming.

the stream for the use of the prior appropriators. But in

the case at bar, Colorado’s diversion will take the water to

a place where it will be impossible to return it to the

stream, and therefore in every year when the water in the

stream may turn out to be less than the amount of the

prior Wyoming appropriations plus the Colorado diver-

sion, irreparable wrong will be done to the Wyoming ap-

propriators, and in most of the years the wrong will go to

the extent of entirely depriving many of the Wyoming

appropriators of water. But in not more than one year

in seven could any substantial fraction of seventy thou-

sand acre-feet of water be taken during the irrigating

season without depriving the Wyoming prior appropria-

tors of necessary water.

We submit, therefore, that, if the state line between

Colorado and Wyoming leaves the rights of appropriators

as if all were in the same State, it is clear that the Wyo-

ming appropriators have the right to the water during prac-

tically every year; that the years when they will not need

it all cannot be ascertained in advance, and that the di-

version as intended by Colorado, because of its character

and the place to which it will take the water, will in most

years cause such injury and damage as entitle the Wyo-

ming appropriators to injunctive relief.

The question of the effect of state lines upon the rights

of appropriators in different States has been before the

courts of the arid region in a number of cases. The uni-

versal holding is, that priority of appropriation gives pri-

ority of right on interstate streams, the same as on streams

wholly within one State. Hoge v. Eaton, 135 Fed. 411, 414

(reversed on another point, 141 Fed. 64); Taylor v.

Hulett, 15 Idaho, 265; Conant v. Deep Creek Co., 23

Utah, 627; Willey v. Decker, 11 Wyo. 496, 533; Farm In-

vestment Co. v. Carpenter, 9 Wyo. 110; Howell v. John-

son, 89 Fed. 556; Anderson v. Bassman, 140 Fed. 14;

Morris v. Bean, 123 Fed. 618; 146 Fed. 425; 159 Fed. 651,

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424 OCTOBER TERM, 1921.

Argument for Wyoming. 259 U.S.

655; Miller v. Rickey, 127 Fed. 573; 152 Fed. 11, 17; s. ¢.

218 U.S. 258; Bean v. Morris, 221 U.S. 485; 3 Kinney,

Irrigation, § 1225.

Both Colorado and Wyoming are at the crest of the

continent. They have both adopted to its broadest ex-

tent the doctrine of prior appropriation. And, whether

it can stand alongside the doctrine of riparian rights in

the same jurisdiction, (as it actually does in a majority

of the irrigation States), or is so antagonistic as to exclude

the latter, we believe that, for the purposes of the decision

of this case, the doctrine of prior appropriation must fur-

nish the rule. The people of both States, by their con-

stitutions, have declared that doctrine to be the just and

reasonable doctrine throughout the area involved in this

litigation, and, by their legislatures, have reiterated the

same doctrine, and provided numerous rules and regula-

tions for carrying it out in both States. The courts in both

States have given their adherence, even to the extent of

saying that the rule was in force in each State long prior

to any constitutions or statutes on the subject. There-

fore, so far as the parties here are concerned, that rule and

doctrine must be held reasonable and just, and neither

State could complain of its use in settling the controversy

here.

The facts in the case at bar would permit, and even

justify, a decision of this cause on the general principles

of prior appropriation, without deciding anything as to

the rights of different States whose differing climates have

caused the adoption of rules and principles differing in the

one State from those in the other.

We realize that the doctrine of prior appropriation is

not recognized in all the States, and that, if general prin-

ciples are to be here decided, such as shall apply to all

interstate streams, and boundaries shall be here fixed to

the rights of differing States in interstate streams appli-

cable to all circumstances, in reaching such universal prin-

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WYOMING v. COLORADO. 425

419. Argument for Wyoming.

ciples and conclusions there are many and serious prob-

lems entirely outside of mere appropriation problems.

Waters falling in Colorado flow out of that State, some

to the Gulf of California, and some to the Gulf of Mexico;

and it would be entirely possible within that State to

construct diverting systems which would turn waters,

naturally tributary to the flow into the Gulf of Mexico,

into the streams emptying into the Gulf of California.

The States through which the waters would run, in case

of such diversion, would be different from those through

which they would run naturally. The same situation exists

in Wyoming, even to a greater degree. It would be entirely

possible in Wyoming to construct diversion works such as

would turn large bodies of the water from one great river

system into another. Each State receiving water from

Wyoming has great need for the water. In the case of at

least two of the systems, the water from Wyoming flows

into and through States which refuse to recognize rights

by prior appropriation as superior to riparian rights. In

some cases the needed flow from Wyoming is into States

which fully recognize the doctrine of prior appropriation.

We recognize that Wyoming, if allowed to divert the

waters from one stream and one system to another, could

inflict vast injury upon sister States. It may not be

amiss, therefore, for this court to consider in the decision

of this case, the general question of the effect of its

decision on the problems which would naturally grow out

of the attempt upon the. part of Wyoming or Colorado

to use within their own boundaries methods of diverting

water such as will become injurious to sister States.

The streams rising in Colorado and Wyoming but illus-

trate the very general character of the questions involved,

if rules are sought applicable universally to rights on in-

terstate streams. The stream in the case at bar rises in

Colorado, and flows into and through Wyoming, and

thence into Nebraska, and on down into other States where

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426 OCTOBER TERM, 1921.

Argument for Wyoming. 259 17.5.

the riparian-rights doctrine pure and simple is adopted.

The rights of Wyoming might easily be ground between

the upper and nether millstone, if Colorado should be

permitted to take a large share of the water on some gen-

eral principle of prior appropriation, while at the same

time Nebraska and lower States could require Wyoming to

permit the waters to flow on down into the lower States,

practically undiminished in quantity.

The situation for Wyoming will be still worse—far

worse—if Colorado shall be permitted to ignore the

Wyoming rights acquired by prior appropriation, and,

also at the same time all riparian rights, by taking waters

for use not only within the watershed, but also without,

while leaving Nebraska and lower States the power to

compel Wyoming to yield to Nebraska riparian rights.

[Counsel then referred to decisions of the court in

Georgia v. Tennessee Copper Co., 206 U.S. 230; Kansas v.

Colorado, 206 U.S. 46; Rickey Land Co. v. Miller & Luz,

218 U.S. 258; Bean v. Morris, 221 U.S. 485; also to 3

Kinney, Irrigation, §§ 1225, 1227, 1230; to the opinion of

Attorney General Harmon, 21 Ops. Atty. Gen. 274, and a

letter of Mr. Evarts, 1 Moore, Int. Law Dig., 653, concern-

ing the rights of this country and of Mexico to the waters

of the Rio Grande, and to the case of United States v. Riv

Grande Co., 174 U.S. 690, and the Treaty with Mexico of

May 21, 1906, 34 Stat. 2953. |

It is apparent that nothing in any of these quotations

or discussions draws in any clear way the lines bouiwdiny

the rights of a State, as distinguished from those of its

citizens, in the waters of an interstate stream. Nov i

there anything in any clear way inarking out the prine-

ples upon which equitable division of waters shall be macie

in such streams. These matters are left to be determine!

by rules that may be worked out, or by analogies fron

rules governing such matters where the adjoining propric-

tors, instead of being States. are individuals. Somme of tiv

WYOMING v. COLORADO. 427

419. Argument for Wyoming.

suggestions of this court seem to hint that such rules

“may be more or less analogous to common-law rights

between upper and lower proprietors.” (218 U.S. 258.)

A just criticism has often been made on precedents

established in interstate relations, to the effect that many

such precedents are almost solely the result of vis major.

It is to be hoped that the tendencies in dealings between

States are in the direction of principles of right and

justice; in other words, equitable principles. When such

principles are sought and applied in international rela-

tions, they are found to approximate more and more

closely the equitable principles governing relations be-

tween individuals.

The parties to this controversy are not permitted to

make war upon, nor even to make treaties with, one

another. Their controversy is, therefore, brough: to this

court to be here determined. If the case is to be ruled

by principles of law already discovered, so far as we can

see they are ruled by principles governing between private

persons. The precedents as to international rights on

international streams are scarcely sufficient upon which to

base any rule, and, such as they are, they are contra-

dictory; even this Government contending, now that

riparian rights govern when diversions of water were

made within the boundaries of a foreign government, and

again contending that the foreign government has no

right to complain when diversions were made within the

boundaries of this country, and still later, while in words

protesting that it was not doing so, in deeds recognizing

the rights of those injured by diversions within our

territories.

The Roman law, as appears from the Pandects of

Justinian, adopted the principles of riparian rights, and

apparently allowed something in the way of irrigation and

of equitable division of waters for that purpose. The

same is true of the Code Napoleon, Art. 644, and of the

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428 OCTOBER TERM, 1921.

Argument for Wyoming. 26 J.8.

Mexican law at the time of the acquisition of our Mexican

territory, including Colorado and large parts of Wyoming.

1 Wiel, Water Rights, pp. 68, 685, 1026. But in all these

jurisdictions, while water was to an extent used for irri-

gation, riparian rights were held superior to rights for

irrigation.

It is needless to cite authority to show that in Great

Britain, and in most of the States of the Union, while

there has been some limited right to use water for irriga-

tion, still the rights of the riparian proprietor are supe-

rior. In all the jurisdictions above mentioned, the ripa-

rian proprietor had the right to insist that the use of water

should not unreasonably reduce the flow of the stream,

should be confined within the watershed, and the surplus

be returned to the stream.

There are eighteen of our own States and Territories

which may be denominated generally the irrigation States,

inasmuch as in each there is more or less of arid land re-

quiring irrigation, and the laws recognize, more or less,

irrigation rights. In ten of these, while the use of waters

of streams for irrigation is permitted, the riparian propri-

etor is recognized as having the superior right, and the

waters are not permitted to be diverted by the irrigators

beyond the watershed; but the surplus must be returned

to the original stream. 1 Wiel, Water Rights, p. 849; 1

Kinney, Irrigation, p. 782; 2 Farnham, Waters, p. 1572;

3 id., p. 1903; Wiggins v. Water Co., 113 Cal. 182; Bath-

gate v. Irvine, 125 Cal. 135; Southern California Co. v.

Wilshire, 144 Cal. 68; Anaheim Water Co. v. Fuller, 150

Cal. 327; Clark v. Allaman, 71 Kans, 206; Watkins Land

Co. v. Clements, 98 Tex. Civ. App. 578; Matagorda Co. v.

Markham Co., 154 8S. W. 1176.

In the other seven irrigating States, viz., Arizona, Colo-

rado, Idaho, New Mexico, Nevada, Utah, and Wyoming,

fuller rights of appropriation are recognized, and appar-

ently the right is recognized to take water outside the

WYOMING v. COLORADO. 429

419. Argument for Wyoming.

watershed, even over the objections of those within it.

But in none of these States is any diversion from the

watershed permitted on any principle of equitable division,

even remotely expressed or implied. On the contrary,

each of these States insists upon the doctrine that the

rights of a prior appropriator are exclusive, even to the

full extent of his prior appropriation. No division of the

waters which would take anything from the prior appro-

priator to his injury is recognized as in any sense equi-

table.

This court, in Kansas v. Colorado, reached a conclusion

that, on the facts in that case, equitable division of the

waters was a reasonable principle, as between adjoining

States on an interstate stream. As we understand that

case, this principle of equitable division was not evolved

as a new principle, but was a mere application of the

doctrine of equitable division as between private riparian

owners. No rules for equitable division were there laid

down, nor were any such rules even discussed, excepting

by areference to rules of division between riparian owners.

The equitable division was all within the watershed.

No question arose there of permitting such division as

would carry waters without the watershed. One would

search in vain for any doctrine of equitable division of

waters which would permit one proprietor to carry the

waters without the watershed, with no obligation to re-

turn them to the stream, in any State or country adminis-

tering the rule of riparian rights. In the seven States,

possibly the most arid, as we have seen, no doctrine of

equitable division of the waters is allowed.

It is interesting, moreover, to note that there are at least

tendencies in some of these States, constituting the seven

last above mentioned, to recognize rights of owners along

the stream and to restrict the diversion beyond the water-

shed. Nevada Laws, 1907, c. 18, § 4, p. 31; New Mexico

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420 OCTOBER TERM, 1921.

Argument for Colorado. 259 U.S.

Laws, 1907, c. 49, § 72, p. 95; Hutchison v. Watson Ditch

Co., 16 Idaho, 484; Anderson v. Bassman, 140 Fed. 14.

This court has in many cases considered the rights of

States as against one another. Missouri v. Illinois, 180

U. S. 208; Georgia v. Tennessee Copper Co., 206 U. 8.

230; Kansas v. Colorado, 185 U. 8. 125; 206 U. S. 46, and

cases cited by these. It is clearly established by this court

that a State does not have a right to do acts within her

own borders which shall affirmatively cause injury in an-

other State. The question of the sovereign right of Colo-

rado to take the waters as she will, is one so fully settled

by this court that, even if the principle claimed by Colo-

rado were much better founded, in reason, we should not

feel it necessary to discuss it further.

Mr. Victor E. Keyes, Attorney General of the State of

Colorado, Mr. Delph E. Carpenter and Mr. Platt Rogers,

with whom Mr. Leslie E. Hubbard, Mr. Fred Farrar, Mr.

Julius C. Gunter and Mr. Ralph E. C. Kerwin were on the

briefs, for defendants.*

The rights of the States here involved necessarily in-

clude the rights and claims of their respective citizens.

Kansas v. Colorado, 206 U. 8. 46, 85. It is as though the

controversy were between independent Nations. Missouri

v. Jllinois, 180 U. S. 208; 200 U. S. 496; Kansas v. Colo-

rado, 185 U. S. 125; 206 U. S. 46; Rickey Land Co. v.

Miller & Luz, 218 U.S. 258; Georgia v. Tennessee Copper

Co., 206 U. S. 230, 237, 238. Nations have absolute do-

minion of everything within their boundaries, including

the waters, and the property rights of the individual are

*The case was argued on behalf of the defendants, at the hearing

in 1916, by Messrs. Farrar (then Attorney General of Colorado),

Carpenter and Gunter; and at the hearing in 1918, by Messrs. Hub-

bard (then Attorney General of Colorado), Farrar, Carpenter and

Rogers.

.

WYOMING v. COLORADO. 431

419. Argument for Colorado.

such only as the State may grant him. Vattel, Law of

Nations (Chitty ed., 1872) pp. 53, 120, 123, 125, 148, 149,

163, 164; The Exchange, 7 Cr. 116, 136; Rhode Island v.

Massachusetts, 12 Pet. 657, 733, 734.

Each State of the Union, new or original, has the same

unlimited jurisdiction over persons and things within its

territorial limits as any Nation, where that jurisdiction

has not been surrendered to the United States by the

Constitution. New York v. Miln, 11 Pet. 102, 139 ;

Chisholm ». Georgia, 2 Dall, 419, 435; Tezas v. White,

7 Wall. 700, 725; Taylor, Int. Law, § 124; Whart. Dig.

Int. Law, § 1; Pennoyer v. Neff, 95 U. S. 722; Kansas v.

Colorado, 206 U. S. 46, 93.

Each of the new States is possessed of the same powers

and jurisdiction over the streams within its borders as

were retained by the original States, and the sovereign

powers exercised by Congress over the Territories passed

to the new States upon their admission, including juris-

diction of streams within their borders, with the right to

determine the use that may be made of their waters by

individuals, except as Congress may control navigation.

The uses recognized as limited property rights in the citi-

zen have been determined by each State according to its

own necessities, and fixed by its local laws and decisions :

and the United States and its courts have adopted the

state laws, regulations and court decisions, as the rules

controlling within their respective jurisdictions. Con-

gress, whenever it has legislated upon the subject with

respect to public lands, has specifically recognized these

local laws, customs and court decisions as controlling the

regulation of streams within the States.

From the earliest decisions of this court to the present

time, all uses of water for navigation, fisheries, power,

domestic, irrigation, and other beneficial purposes, have

been treated as within the sovereign jurisdiction and con-

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42 OCTOBER TERM, 1921.

Argument for Colorado. ? U.S.

trol of the several States, save alone for the federal . »ntrol

of navigation.’

Acts of Congress and decisions of the courts s d the

Land Department, declare the jurisdiction of the yublic

land States over the waters within their domain, ir. 30 far

as the United States is concerned.’

1 Willson v. Blackbird Creek Marsh Co., 2 Pet. 245; M: tin v.

Waddell, 16 Pet. 367, 409, 410; Pollard v. Hagan, 3 How. 2 2, 220,

221; Holyoke Co. v. Lyman, 15 Wall. 500; Barney v. Ke :uk, 94

U. 8. 324; McCready v. Virginia, 94 U. 8. 391; Pound v. 7 rck, 95

U. 8. 459; Escanaba Co. v. Chicago, 107 U. 8. 678; Ca. well v.

American Bridge Co., 113 U. 8. 205; St. Louis v. Myers, 1 3 U. 8.

566; Hamilton v. Vicksburg, S. & P. R. R., 119 U.S. 280; W -amette

Bridge Co. v. Hatch, 125 U. S. 1; Geer v. Connecticut, 1 1 U. Ss.

519; Ward v. Race Horse, 163 U. S. 504; Manchester Massa -

chusetts, 139 U. S. 240; Hardin v. Jordan, 140 U. 8. 1, 380;

Kaukauna Water Power Co. v. Green Bay Canal Co., 142 U. 8. 254;

Shively v. Bowlby, 152 U. 8. 1, and cases cited; Grand Rapids &

Indiana R. R. Co. v. Butler, 159 U. S. 87; Lake Shore 4 Michigan

Southern Ry. Co. v. Ohio, 165 U. 8. 365; St. Anthony Falls Co. v.

Water Commissioners, 168 U. 8. 349; United States Freehold Land 4

Emigration Co. v. Diego Gallegos, (U.S. C. C., Colo., 1898 . United

States v. Rio Grande Co., 174 U. 8. 690, 702-6; Gutierre: 7. Albu-

querque Land Co., 188 U. S. 545, 552, 553; Clark v. Nash, ‘8 U. 8.

361; Manigault v. Springs, 199 U. 8. 473; Whitaker v. Mci ide, 197

U. 8. 510; Bacon v. Walker, 204 U. S. 311; Kansas v. ‘olorado,

206 U. 8. 46; Georgia v. Tennessee Copper Co., 206 U 8. 230;

Hudson Water Co. v. McCarter, 209 U. 8. 349; sc. ) N. J.

Eq. 525, 695; 3 Kinney, Irrigation, 2d ed., p. 2224; Wal ridge v.

Robinson, 22 Idaho, 240; Boquillas Cattle Co. v. Curtis, . 3 U. 8.

339; McGilvra v. Ross, 215 U. 8. 70; Synder v. Gold Dre ing Co.,

181 Fed. 62; Marshall Dental Co. v. Iowa, 226 U. 8. 460, Scott v.

Lattig, 227 U. S. 229; United States v. Cress, 243 U.S. 31

*Acts of July 26, 1866, 14 Stat. 253; July 9, 1870, 16. ~.t. 218;

March 3, 1877, 19 Stat. 377; March 3, 1891, 26 Stat. 10% August

18, 1894, 28 Stat. 422; March 2, 1897, 29 Stat. 603; Feb uary 26,

1897, 29 Stat. 599; June 17, 1902, 32 Stat. 388; February 21, 1911,

36 Stat. 925; Atchison v. Peterson, 20 Wall. 507; Basey v. Tallagher,

20 Wall. 670; Broder v. Water Co., 101 U. 8. 274; Jenniso: v. Kirk,

98 U. S. 453, 456; United States v. Rio Grande Co., 174° 8. 690;

=

WYOMING v. COLORADO. 433

419. Argument for Colorado.

The Colorado enabling act and the proclamation of the

President, admit the State to the Union “on an equal foot-

ing with the original States in all respects whatsoever.”

18 Stat. 474; 19 Stat. 665. The constitution, made in

pursuance of the enabling act, and approved by the proc-

lamation, declares that the water of every natural stream,

not already appropriated, is the property of the public

and dedicated to use of the people of the State, subject to

appropriation as provided. It thus appears that, on her

very admission, and as a part of the solemn transaction,

Colorado asserted her full sovereign dominion over the

waters of her streams, and that this assertion was then and

there approved by the United States. These provisions

of her constitution have been many times upheld by her

courts;* and her claim to full jurisdiction over the waters

within her borders has been repeatedly asserted by her

legislature. (Citing many acts.) Wyoming has assumed

the same attitude.* She, likewise, refuses to permit the

diversion of waters in Wyoming for use in other juris-

dictions.

The two States, therefore, are at one, in asserting

full and exclusive sovereign control; in permitting usu-

fructuary rights to their citizens according to the appro-

priation doctrine; and in denying these privileges to other

States and their citizens.

Gutierres vy. Albuquerque Land Co., 188 U. 8. 545; Kansas v. Colo-

rado, 206 U. 8. 46; Boquillas Cattle Co. v. Curtis, 213 U. S. 339;

Twin Falls Canal Co. v. Foote, 192 Fed. 583; Stanfield v. Umatilla

River Water Users Assn., 192 Fed. 596; Withdrawal of Public Lands

for Irrigation Purposes, 32 L. D. 254.

*See Wheeler v. Northern Colorado Irrig. Co., 10 Colo. 582; Ft.

Morgan Co. v. South Platte Co., 18 Colo. 1; Stockman v. Leddy,

55 Colo. 24.

* Wyo. Const., Art. VIII, §§ 1-5; Wyo. Comp. Stats. 1910, § 724,

p. 247; Farm Investment Co. v. Carpenter, 9 Wyo. 110; (distinguish-

ing Willey v. Decker, 11 Wyo. 496); Grover Irrig. Co. v. Lovella

Ditch Co., 21 Wyo. 204.

Ge RPI OND OE SAREE anol

Fe SV eG te Lah Bic CEI IO

434 OCTOBER TERM, 1921.

Argument for Colorado. 259 U.S.

It might be said that the United States, in admitting

these States with their constitutions as they are, gave

recognition to their claims amounting to a grant. Farm

Investment Co. v. Carpenter, 9 Wyo. 110. But their juris-

dictions and rights are not so dependent, but rest directly

on the Federal Constitution. Stockman v. Leddy, 55

Colo. 24; Kansas v. Colorado, 206 U. S. 46; United States

v. Hanson, 167 Fed. 881.

The doctrines of riparian rights and of appropriation

are local rules for determining the private rights of citi-

zens in particular States—usufructuary rights in the prop-

erty of the State, which, in the final analysis, must yield

to the will of the State and her eminent domain.”

They have no extra-territorial force, either for or against

the State. Story, Conflict of Laws, c. 2, pp. 19-34;

Pennoyer v. Neff, 95 U. S. 714, 720. The State has an

interest, independent of and behind the title of its citi-

zens. Georgia v. Tennessee Copper Co., 206 U. S. 230;

Kansas v. Colorado, 206 U. S. 46, 99; Hudson Water Co.

v. McCarter, 209 U.S. 349, 354-357.

That private rights in waters of interstate streams can-

not determine the rights of States inter sese, is recognized

in Rickey Land Co. v. Miller & Luz, 218 U. S. 258, 260,

261; and Bean v. Morris, 221 U.S. 485. The assumption

of concurrence or acquiescence made in those cases,

whereby rights might be acquired in one State for enjoy-

ment or use in another, cannot be applied in the case of

Colorado. And the question of constitutional protection,

passed in Bean v. Morris, supra, 488, cannot arise here,

since, with the exception of one small appropriation, no

‘(a) Riparian rights. 3 Kent Com., § 439; 2 Black. Com., pp. 14,

18; McCarter v. Hudson Water Co., 70 N. J. Eq. 525; 70 N. J. Eq.

695; s. c. 209 U. S. 349, 355; St. Anthony Falls Co. v. Water Com-

missioners, 168 U. S. 349; Whitaker v. McBride, 197 U.S. 510, 511.

(b) Rights by appropriation. United States v. Rio Grande Co.,

174 U.S. 6$0, 702; Kansas v. Colorado, 206 U.S. 46, 94.

ba

WYOMING v. COLORADO. 435

419. Argument for Colorado.

use whatever had been made of the waters of the Laramie

River prior to the admission of Colorado, in 1876; and

substantially all of the Wyoming development has oc-

curred since that date, and a large part subsequent to the

Colorado project here complained of.

Even were we to assume that Colorado had not, since

1876, expressly denied recognition of all extra-territorial

claims, the fact remains that there is no concurrence of

laws upon which to base a presumption of interstate servi-

tudes. Both States assert full ownership and control over

the waters within their borders and abolish the system of

riparian rights. Beyond this the systems diverge.

The doctrines of riparian rights and of appropriation

both are fundamentally inapplicable to the regulation of

rights between States, which stand upon an equality “ in

all respects whatever,” to the same degree as independent

Nations. Each State depends for its existence primarily

upon its natural resources, of which water, in the arid

regions, is frequently the most valuable. Self defense

compels the State to withhold its resources for the benefit

of future as well as present generations and for the wel-

fare and perpetuity of the State. With independent

Nations, these natural resources, if need require, must be

defended by the sword. But with States of the Union

this court must determine the controversy. Kansas v.

Colorado, 185 U. 8. 125; 206 U.S. 46; Missouri v. Illinois,

180 U.S. 208; 200 U. S. 496.

If the rule of riparian rights were to control the settle-

ment of this controversy, Colorado would be forever de-

prived of all but the most insignificant use of her own

waters in the Laramie, and her fertile but arid lands

would remain forever unproductive, by reason of the fact

that only the lands of the narrow mountain valleys in

Colorado are riparian; and these waters, imperative to

her present and future development and welfare, would

superar 4

$i Ea NR ta ee Cre |

& cs

new ®

436 OCTOBER TERM, 1921.

Argument for Colorado. 259 U.S.

pass forever into Wyoming, there to be used, enjoyed

or wasted, or pass to the sea. On the other hand, by

the doctrine of appropriation, if physical conditions had

permitted, all waters of this stream, those rising in Wyo-

ming included, might have been diverted within the latter

State, and carried into and applied to land in Colorado;

and, if all this were prior to Wyoming developments, Colo-

rado could forever after prevent Wyoming from the use,

not only of the Colorado waters, but of those rising in

Wyoming as well.

Canals and diversion works are usually first constructed

where no natural obstacles interfere. Infant Nations or

States can little afford to undertake projects which, in

their later history, their accumulated energies often ac-

complish with apparent ease. Prior appropriation is very

frequently the accident of physical location; and, were

the rule to apply between States, their destiny would be

determined, not by their present or future necessities for

use of their natural resources, but rather by accident.

While, to be sure, the rule does apply to individuals within

the State, in their case the preference of the first taker is

within the governmental powers of the State; and, in

disposing of its resources to the most ultimate good, in-

asmuch as the water, if parceled among the many, would

benefit no one, the State may determine to whom the ex-

clusive use may be given, in order ultimately to bring to

the State and its people the greatest benefit with the least

waste; and, furthermore, the State, whenever it may so

desire, by the power of eminent domain, may take away

all vested usufructuary rights and establish some new plan

adapted to future conditions, only perhaps in the future

to again condemn and establish still a different order of

things.

But we can not agree that among Nations or States,

with equal powers and sovereign rights, one may claim

through its citizens, by mere first use, a preferred and

|

‘yy

:

Cl

WYOMING v. COLORADO. 437

419. Argument for Colorado.

exclusive right perpetually to use for its benefit waters

rising within and flowing from the domain of its neighbor,

thereby to deny forever to the Nation or State of origin a

part or all of the benefit of its own stream, be its necessi-

tiesever so great. Waters that rise and flow from one State

into another are forever lost to the former unless there

used, and ariy rule which forbids this use denies to that

State the benefit of its inherent sovereign right to enjoy

its own and maintain itself within its domain. It would

be, in effect, to invade and take the domain of one State

and to give it to another, without consent or compensa-

tion. It would be the assertion by a foreign State of

jurisdiction over a portion of the domain of another

State.

The usufructuary rights of the individual citizen of

Wyoming are defined by the constitution, laws and deci-

sions of the courts of that State. But the local law of

Wyoming can have no extra-territorial effect, and espe-

cially when prejudicial to the rights of other States.

Story, Conflict of Laws, § 32, p. 29; Farnum v. Blackstone

Canal Co., 1 Sumner, 46, 62; The Exchange, 7 Cr. 116,

136; Cooley, Const. Lim., 7th ed., p. 176; Hilton v. Guyot,

159 U. S. 113. One State cannot expropriate property

within the territory of another State. I Whart. Int. Law

Digest, pp. 38, 39; Crosby v. Hanover, 36 N. H. 404, 423;

Holyoke Water Co. v. Connecticut River Co., 52 Conn.

570, 575, 576; McCarter v. Hudson Water Co., 70 N. J.

Eq. 695, 717.

The fundamental rule that one Nation cannot exercise

its sovereign power and jurisdiction over the waters or

domain of another Nation without its consent and cannot

expropriate the waters of an upper Nation for the use of

the lower Nation by claim of prior appropriation, even on

an international river, has been recognized and followed

by the United States in its relations with Mexico. 21

Ops. Atty. Gen. 280-283. When the United States, as a

ie Bt AS ere TT: |

a “a

Nites i Ne

438 OCTOBER TERM, 1921.

Argument for Colorado. 259 U.S.

matter of international policy but not of international

law, settled the differences over the Rio Grande with

Mexico, it took the precaution so to word the treaty that

the adjustment could never be taken as a recognition of

any lawful claims by Mexico. Treaty of May 1, 1906,

Art. V, 34 Stat. 2953.

As we understand the term “ equal,” when used with

reference to the States, it refers to that equality in the

family of States which obtains with Nations in the family

of Nations. Each State has an equal right, not only to

govern itself, but as well to maintain itself and improve

its domain, increase in population and promote for the

present and for all time the general welfare of itself and

its citizens. But if, (purely by way of illustration) we

were to use a narrower construction, and say that equal

States have the right to enjoy an equal part of an inter-

state stream, even then the doctrine of appropriation is

inapplicable, for it takes from one State an exclusive

(not equal) portion of the waters of the stream, and gives

it to the other without remuneration.

Priority is a rule of the past and not of the future.

States must look to the future more than to the past.

Hudson Water Co. v. McCarter, 209 U. S. 349, 355. The

State may find its future needs so imperative that it must

extinguish, by eminent domain, even the usufructuary

property rights it has permitted its citizens, and take the

waters for a greater need. How, then, could the limited

right of a State, determined upon rules of priority of ap-

propriation, as regards another State, be reconciled with

its future imperative necessities?

How solve the problem, if one State has adopted the

law of appropriation and the other the modified doctrine

of riparian rights? What would be the result, if the prin-

ciple of appropriation were applied as between two ap-

propriation States and, thereafter, one should change and

adopt the common-law doctrine of riparian rights? De-

‘ WYOMING v. COLORADO. 439

419. : Argument for Colorado.

termination of the rights of the various appropriators in

the two States upon the basis of priority would be thrown

into complete confusion. Neither State can legislate for

or impose its own policy upon the other; Congress cannot

enforce either rule upon any State.

The unnecessary loss, occasioned by depriving the State

of origin of control of its waters, and by causing the water

to pass down losing streams in order to supply some prior

appropriator in another State, would appear to be waste-

ful, and inept, and so inequitable and unjust.

Could any advocate of the doctrine of appropriation re-

gardless of state lines advance any hypothesis upon which

a stream and its tributaries, like the Colorado River, flow-

ing within or bordering six States and a foreign country,

could be administered, and the water apportioned to the

various appropriators in the seventeen hundred or more

miles of its length, upon the basis of priority of appro-

priation?

If priority of right regardless of state lines is the princi-

ple which governs this controversy, how are the rights of

the respective individuals in Wyoming and Colorado to be

determined, having due regard to the conflicting laws of

each State; and, after determination, how are they to be

enforced? Possibly this court might appoint an officer or

direct a United States marshal to organize a body of men

to police the stream and divide the water according to the

priorities which this court might undertake to adjudicate;

but the very suggestion shows the absurdity of the con-

tention. No such procedure was ever in contemplation

either by Congress or by the respective States where

water is used for irrigation. The entire adjudication and

administration of priorities is founded, and has been con-

structed, on the theory of state control, and is utterly in

conflict with any other theory. Manifestly, the doctrine

of priority of appropriation does not adapt itself to inter-

state questions. Diversion and uses of water under the

rule of priority require the most rigid police regulation.

er = re |

440 OCTOBER TERM, 1921.

Argument for Colorado. 259 U.8.

The state courts, understanding as they do the local

conditions and necessities, are in the best position to

adjust conflicts between individual appropriators. But,

if priorities must obtain irrespective of state lines, local

courts will be shorn of their jurisdiction and some other

court or tribunal will of necessity assume the task. The

difficulties are greatly enlarged when appropriations by

reservoirs and the complicated system of exchanging

water are taken into the account. Taking the Platte River

and its branches, for illustration, it may be estimated that

administration under the rule of priority, irrespective of

state lines, would require readjudication and police regu-

lation of upwards of 4,000 diversions already established

and decreed by state authorities in Colorado, Wyoming

and Nebraska, and, in the years to come, probably a like

number of new and now more or less incomplete enter-

prises. In view of the fact that the right of each appro-

priator is limited to his actual necessities each day, and

that his diversions must constantly be regulated and re-

stricted accordingly; and in view of the complications

arising from exchanges and other administrative features

existing upon each of the tributaries, as well as upon the

stream itself; it is self-evident that the difficulties con-

fronting interstate administration of the Platte River

would become so involved that, te give each appropriator

his just dues, and no more, and at the particular time his

necessities demanded, would be next to impossible. If

such should be declared to be the rule, the rights of all

must be protected and enforced, the least must receive

the same consideration as the greatest, and that, too, at

the particular time when the crop demands water in order

that loss may be avoided.

Yet state officials and tribunals are confined in power

to their own borders, and bound by local laws, rules and

regulations. They can not adjust conflicting claims or

determine rights of foreign users. Different systems in

WYOMING v. COLORADO. 441

419. Argument for Colorado.

different States invite irreconcilable conflict and insoluble

administrative problems.

If this court should decide that the private usufructuary

rights of the individual appropriators preclude the States

from asserting greater rights to the river, and that priority

shall obtain irrespective of state lines, then such rights

must be adjudicated by the court in this and similar cases.

This would necessitate a determination not of the rights

of the States, but of each individual claimant; and the

rights of each, great or small, would have to be separately

considered and passed upon. The mere suggestion of the

problem portrays the insurmountable obstacles to be

encountered.

Then, too, conditions are constantly changing. New

and conflicting rules and laws may become imperative in

Colorado, Nebraska and Wyoming. Who then shall enact

these laws? The subject is no longer within the control

of the States, because their jurisdiction has been denied

them. Congress cannot legislate, for it has no power so

to do. 206 U.S. 90-92. The canals divert waters from

streams washing lands long since passed into private

hands, and not public lands of the United States. This

court cannot legislate. Who then shall remedy the evil

or supply the new rule?

It would seem, from the opinion in Kansas v. Colorado,

206 U. S. 46, that any doctrine of equitable apportion-

ment of the waters of rivers between States must be

founded upon a broad basis of equitable consideration of

all the facts of each case as they appear, with full regard

to the equal rights of States of equal dignity, powers and

jurisdiction, and not upon the narrower basis of local laws

governing mere usufructuary rights of private citizens.

But even though we here construe that decision within

the narrower limits and assume an equal apportionment

of the waters of the stream, we here find that the Laramie

River rises not in one but in both States. The waters of

L |

pers. |

i SE Det ete:

442 OCTOBER TERM, 1921.

Argument for Colorado. 259 U.S.

the Wyoming part of the stream, as weil as those of the

Colorado branch, are available to Wyoming and her citi-

zens. On the other !:and, natural conditions are such that

Colorado is lim*.ed to use of but a part (91/250) of the

waters of that branch which rises and flows within her

borders. Whatever the injury might be to Wyoming

(though none has been proved), this would not appear to

be an inequitable use of her own resources by Colorado.

A greater degree of caution is manifest in such contro-

versies as this, than would obtain in suits between citizens

within the same or different jurisdictions. The complain-

ing State should be required to establish the injury and its

right to relief upon the clearest and most indisputable

testimony, before this court would be warranted in pre-

venting the other State from exercising its sovereign con-

trol over its natural resources. Missouri v. Illinois, 180

U.S. 208, 248.

Wyoming has wholly failed to prove the allegations of

her bill, and even more, has by her own conduct denied

her charges against Colorado by permitting appropria-

tions for and authorizing construction of many new and

enormous enterprises in Wyoming, long junior to the Colo-

rado enterprise of which she complains and drawing water

from the same stream; and, irrespective of other conclu-

sive proof, has thereby admitted that there was and is

ample water in the stream to supply all appropriations

junior, as well as senior, to the Colorado enterprise, and

that no injury could result to senior appropriations in

Wyoming by reason of the Colorado diversion; and that

by her official acts, she has contributed to the very de-

pletion whereof she complains. Further, the proof shows

that, not only is there ample water in the stream for use

of all Wyoming enterprises, but, as well, that Wyoming

needlessly wastes more water than will be withdrawn from

the stream by Colorado. And, furthermore, the proof

reveals, without contradiction, that Wyoming is not only

R

4

N

WYOMING v. COLORADO. 443

419. Argument for the United States.

diverting from the drainage of the Cache la Poudre over

into that of the Laramie, but generally recognizes and per-

mits such diversions, by official sanction and decrees of her

courts, within her own territory, and by means thereof she

has been able tc effect her most valuable reclamation and

development. No proof was offered in support of her claims

as a riparian owner and, on the other hand, by her consti-

tution, laws and decisions of her courts, she has abolished

and denied any such; and, lastly, she has offered no suffi-

cient proof whereby this court could adjudicate and deter-

mine the relative rights of appropriation within either

Wyoming or Colorado, if such a rule as she alleges were

here applied.

Mr. Assistant Attorney General Riter, with whom Mr.

Solicitor General Beck and Mr, John F. Truesdell, Special

Assistant to the Attorney General, were on the brief, for

the United States.’

The attitude of the executive branch of the Government

is, briefly, that the United States has not surrendered to

the States or parted in any way with its original right

to use the surplus waters (those not appropriated by

others under its own laws) of innavigable streams in the

Western States; that the United States is, and always

has been, since the cession of the territories now com-

prised in those States, the owner of all the unappropriated

and surplus waters; that the appropriated waters there

have been granted by the United States under its own

laws, using local customs and state laws as subordinate

instrumentalities only; that the rights of the States, both

as the actual owners of lands granted to them and as the

ultimate owners of the property of their citizens, so far as

*Mr. Solicitor General Davis argued the case on behalf of the

United States, at the hearing in 1918. Mr. Assistant Attorney Gen-

eral Kearful, Mr. Truesdell, and Mr. Ethelbert Ward, Special Assist-

ant to the Attorney General, were with him on the brief.

Piers

444 OCTOBER TERM, 1921.

Argument for the United States. 259 U.S.

they may be said to be such owners, are confined to such

water rights as have been granted by the United States

to them or their citizens under the laws of Congress; and

that controversies such as this should be decided upon the

basis of such federal grants, and without regard to state

boundaries.

As for the effect of these questions upon the public in-

terests and governmental policies of the United States, we

think it sufficient here to call attention to the vast areas

of land still belonging to the United States; to the fact

that much of it is in the arid region where land without

water to irrigate it, is of little value; to the federal recla-

mation policy, which depends upon federal use of both

land and water and often upon federal use of interstate

streams; to the federal Indian policy, where the Govern-

ment’s ability to protect its Indian wards depends largely

upon its ownership and control of the waters on reserva-

tions and other Indian lands; and, finally, to the fact that,

if the water on these public lands be held to belong to the

States, the Federal Government will be at the mercy of the

States and be helpless as to these policies in a very real

sense, because, while under our system the States are rep-

resented in and have a powerful influence upon the Fed-

eral Government, the United States is not in any way rep-

resented in the States, and, both theoretically and as a

practical matter can not control or even influence their

action.

The United States retains its original plenary owner-

ship of the right of use of innavigable waters in the West-

ern States, except in so far as it has parted with it through

acts of Congress; and this property, like the property in

the public lands generally, is wholly immune from state

interference or control. The state power affects only those

rights which have been granted by Congress.

We respectfully suggest the necessity of keeping sepa-

rately in mind the two questions of, first, whether the

WYOMING v. COLORADO. 445

419. Argument for the United States.

United States or the States own the right of use of the in-

navigable waters in the Western States, and, second, the

effect of a decision of that question upon the rights of

these two opposing States in the waters of an interstate

stream. It is our contention that federal ownership con-

trols, and offers a logical and workable solution of this

question of rights between the States; but, even if we

should be wrong in this, we deer it clear that the United

States owns the right of use of the waters in and on its

public lands within the States, just as it owns the lands

themselves, and that such ownership should not be thrown

in doubt by any decision as to the broader question of the

rights between States.

Upon the acquisition of the territory now comprised

within the Western States, the United States became

vested with all property rights in that territory except

vested private rights and such Indian rights as the United

States might choose to recognize. Therefore, whatever

property rights exist in water in that territory, whether

the water be navigable or innavigable, belonged to the

United States until the creation of the States; and, fur-

thermore, such rights are still federal property, notwith-

standing the creation of the States unless, first, they are

of such a character as to go to the States upon their mere

creation as such and because of the character of state

sovereignty, or unless, second, they have been granted to

the States or to private persons under acts of Congress.

Property rights in navigable waters and their shores and

beds become vested in the States on their creation, as a

part of their sovereignty, but the rule is different as to

nonnavigable waters and their places of occurrence. The

States take no property rights in them. Such waters are

not publici juris, and title to their use is the same as title

to land.

Because of its fugitive nature, the only property rights

which exist in water in its natural state are rights of use,

(aintasihibiiiedeinisianniieinmincimeantianenaill

SSeS wT Mee |

446 OCTOBER TERM, 1921.

Argument for the United States. 259 U.S.

the corpus being only susceptible of ownershi; while in

possession. This corpus while in possession i: personal

property, but the right of use of the water in» natural

state is a real property right of the highest c:. ity and

value. Tyler v. Wilkinson, 4 Mason, 397; F ibrey v.

Owen, 6 Ex. 352; 20 L. J. Ex. 212; Hargrave v. _ok, 108

Cal. 72; Smith v. Rochester, 92 N. Y. 463, 480 Gardner

v. Newburgh, 2 Johns. Ch. 162, 166; Jnsuran > Co. v.

Childs, 25 Colo. 360, 363; Davis v. Randall, 14 Colo.

488, 492. 3 Kent. Com. p. 439; Wiel, Wate Rights,

3d ed., p. 755; § 711, p. 777 et seqg., and nume »us cases

cited; § 283, p. 298; § 285, p. 301; Long, Irm .tion, 2d

ed., § 34, p. 70; 2 Kinney, Irrigation, 2d ed., § 76! p. 1328;

Washburn, Easements, 4th ed., pp. 316, 317; 2) ashburn,

Real Property, 6th ed., § 1284.

Because of the necessity of protecting the p’ lic inter-

ests therein (mainly navigation and fishery) property

rights in navigable waters in England belon’ d prima

facie to the Crown; and in this country they be. ag prima

facie to the municipal sovereignties, the St es. The

Federal Government, though having full cont 1 (under

the commerce clause) for purposes of foreign nd inter-

state navigation; has no right of property in s: 4 waters,

or their shores or beds, except as it derives i* .rom the

States, either by grant or under operation of tate law.

Shively v. Bowlby, 152 U. S. 1, 15, 46, 48; Jardin v.

Jordan, 140 U. S. 371, 381; United States v. “handler-

Dunbar Co., 229 U.S. 53, 63; United States v. f. 0 Grande

Co., 174 U. S. 690.

The crux of the question we are examining .; whether

innavigable waters are publici juris, like navigavle waters.

Ownership by the States depends upon showing that they

are. Such waters are not publici juris and ownership of

usufructuary rights therein rests upon the same basis and

is of the same character as ownership of land. . 1 the first

place, it is to be noted that it is now decided beyond any

3

;

3

4

2

WYOMING v. COLORADO. 447

419. Argument for the United States.

further possibility of question that the beds and shores

of innavigable streams and lakes, even though they are

meandered, are owned as ordinary upland is owned, and

are not owned by the States. Title to such lands in the

public land States comes from the United States and not

from the States. Hardin v. Shedd, 190 U.S. 508. The

fact that this court holds that the grantee of the upland

from the United States takes to the thread of the stream

or not in accordance with the state law, using such law as

a rule of convenience merely, in no way weakens this

statement. The title comes from the United States, and

it is perfectly competent for Congress to change this rule

of convenience applied to the grants of the United States

if it sees fit. [Cf. Oklahoma v. Texas, 258 U. S. 574;

Brewer-Elliott Oil Co. v. United States, 260 U. S. 77.

Reporter. ]

As to the property rights in these innavigable waters

themselves, it is to be observed, first, that diffused sur-

face waters and all underground waters were originally

looked upon by the law as part and parcel of the soil, and

as belonging to its owner. The tendency now is to rec-

ognize these waters as distinct from the soil, and as being

susceptible of ownership, when out of possession, only as

to usufructuary rights therein. Furthermore, the tend-

ency is to treat such rights, not only as interlocking with

the rights in the streams and lakes which the underground

waters support, but also (even, we think, in the pure

appropriation States) as belonging to the several owners

of the lands which have access to them. Wiel, Water

Rights, §§ 1090, 1124.

Turning to the innavigable surface streams and lakes,

it will be found that, in England, it was recognized, at

least as early as Lord Hale’s time; that the proprietary

right in the use and flow of such waters was not in the

Crown. Unlike navigable waters, they did not at com-

mon law belong prima facie, or of common right, to the

MLAS LILI VN tee at |

448 OCTOBER TERM, 1921.

Argument for the United States. 259 U.S.

sovereign, but did so belong to private persons just as

land did. The rule was, and is, the same in our original

States; and so, following the same principle upon which

this court decided that navigable waters and their shores

and beds go to the new States, as well as to the original

ones, since it is the States which under our system are the

possessors of municipal sovereignty (Pollard v. Hagan, 3

How. 212, 229, and Shively v. Bowlby, 152 U.S. 1), we

see that neither the new States, nor the original thirteen,

have any property rights in innavigable waters by virtue

of their sovereignty, or have any different kind of power

whatever over them than they have over land. Smith v.

Rochester, 92 N. Y. 463, 473; Gardner v. Newburgh, 2

Johns Ch. 162, 166; Lord Hale’s de Jure Maris, with Judge

Cowan’s note to Ex parte Jennings, 6 Cow. 536, 539-546;

Watuppa Reservoir Co. v. Fall River, 147 Mass. 548, 554,

555, 558, 561; Home of Aged Women v. Commonwealth,

202 Mass. 422, 433-434; Opinions of Justices, 118 Me.

503, 506, 507; Wadsworth v. Smith, 11 Me. 278, 280, 281;

Chapman v. Kimball, 9 Conn. 38, 40, 41; Barclay R. R.

Co. v. Ingham, 36 Pa. St. 194, 200, et seq; Angell, Water

Courses, 6th ed., pars. 2, 535; Gould, Waters, 3d ed., par.

46; Cobb v. Davenport, 32 N. J. L. 369; Simmons v. Pater-

son, 60 N. J. Eq. 385, 389; Attorney General v. Delaware

&c. R. R. Co., 27 N. J. Eq. 631, 638; Doremus v. Paterson,

65 N. J. Eq. 711, 712. Contra, in part: McCarter v. Hud-

son Water Co., 70 N. J. Eq. 695, affirmed by this court

on other and broader grounds. 209 U.S. 349.

General expressions by some of the early writers, and

also the existence of prescriptive rights, for a time left

some doubt as to whether water, as such, was not publici

juris, and also as to whether the riparian owner’s right to

divert the waters on which his land bordered was not

dependent in some way upon actual appropriation.

Whatever doubt existed in that respect was put at rest in

England by a series of cases of which Mason v. Hill, 5

WYOMING v. COLORADO. 449

419. Argument for the United States.

Barn. & Adol. 1, 23, 24, decided by Lord Denman in 1833,

was perhaps the most important. In this country the

question had already been disposed of by Mr. Justice

Story in Tyler v. Wilkinson, 4 Mason, 397. Since those

cases, it has been settled that, under the common law,

both in England and in the United States, the usufruc-

tuary rights to innavigable waters belong to the owners

of the land bordering on them; that the rights of such

owners in the water are in no way dependent upon its

use; that such waters are in no proper sense publici juris,

_ as, for instance, navigable waters are; that the water right

is part and parcel of the title to land itself; and that title

to such usufructuary right has the same origin as the

title to the land. Embrey v. Owen, 6 Ex. 352, 368; 20

L. J. Ex. 212; Ferguson v. Shirreff, 6 Dunlop, 1355, 1374

(Scot’s Rev. Reps.)

Undoubtedly the States have the power to control indi-

viduals in their use of water. Whatever the power is, it

is limited by the provisions of the Fourteenth Amend-

ment protecting vested rights. The power is the same as

that which the State has over vested rights in lands.

Water rights, under both the appropriation and the ripa-

rian doctrines, are vested rights in real property, which

can be lost only by grant, condemnation, prescription, or

abandonment. The ways in which this power of the

State is exercised, of course, will differ in accordance with

the kind of property the use of which is to be affected or

controlled. Thus, we have regulations limiting the use

of land for the public good that would not be at all appli-

cable to water, and, vice versa, we have regulations con-

cerning water that could not apply to land. Wiel, Water

Rights, pp. 196, 197; Robertson v. People, 40 Colo. 119,

124; Broad Run Co. v. Duel Co., 47 Colo. 573, 579;

Combs v. Farmers Co., 38 Colo. 420, 428.

The argument based on the necessities of the arid region

wrongly assumes that the riparian system is not suited to

atta danoiiies-cinicn sociales

450 OCTOBER TERM, 1921.

Argument for the United States. 259 U.S.

western conditions and that, therefore, the States can

dispose of the federal property in water. We think it

sufficient here to point out that the main principle of the

riparian system is equality of right between the riparian

owners; that they among them own the entire right of

use of the stream; that any proper use under the circum-

stances, including, of course, irrigation, is permitted; that

rights exactly like appropriation rights can be and fre-

quently are created by grant or condemnation of rights of

the riparian owners; that the appropriation system, so

called, is not so much a system of owning and using rights

as it is a means of acquiring them; that it is an open

- question whether the correlative rights of the riparian

system are not better suited to an irrigation community

than the sometimes more definite and less related appro-

priation rights; and finally, that both classes of rights are

now being created out of, and logically rest, under our

theory, upon the original federal ownership of riparian

rights, and that the argument for state ownership is

merely one that it would be better to allow the States to

dispose of this class of federal property, and is as appli-

cable to lands as to water.

The fundamental principle of water law, that the corpus

of water can only be the subject of ownership while in

possession, and that, therefore, water itself in its natural

state is owned by no one, has no effect upon the question

of whether the title to the usufructuary right therein be-

longs to the State as a part of its sovereignty.

Water rights now vested in others derive their existence,

like titles to land, from the acts of Congress. All interest

in water not so granted necessarily remains in the Wnited

States. The acts grant nothing to the States, and ratifica-

tion of state constitutions asserting state ownership of wa-

ter does not divest the United States of its property rights

therein. The earliest acts of Congress affecting innaviga-

ble waters show full consciousness of power to deal with

WYOMING v. COLORADO. 451

419. Argument for the United States.

such waters on the public lands. Rev. Stats. § 2476. Acts

of May 18, 1796, 1 Stat. 468; March 3, 1803, § 17, 2 Stat.

235; February 20, 1811, § 3, 2Stat. 642; and March 3, 1811,

§ 12, 2 Stat. 666; Railroad Co. v. Schurmeir, 7 Wall. 272,

289; Scott v. Lattig, 227 U. S. 229, 242; Hardin v. Shedd,

190 U.S. 508,519. Since the passage of the Act of July 26,

1866, 14 Stat. 251, the disposition of such waters on the

public lands has been controlled by that act and by the

local laws and customs used as its subordinate instrumen-

talities. The occasion of this legislation was the extensive

occupation and exploitation of the public lands in the

West following the discovery of gold in California. The

need was to legalize appropriations of mineral land,

rights of way, and water rights already made under local

customs and laws, and to provide for the future acquisition

of rights of the same character in the same manner.

Jennison v. Kirk, 98 U.-S. 453; Atchison v. Peterson, 20

Wall. 507; Basey v. Gallagher, 20 Wall. 670; Broder v.

Water Co., 101 U. S. 274; Wiel, Water Rights, § 66, et

seq.; § 92, et seg.; 1 Kinney, Irrigation, §$§ 596, 611, 636, et

seq. Tomeet this situation the Act of 1866 and the supple-

mentary Act of 1870, 16 Stat. 217, were passed. Congress

had already provided adequate means for the acquisition

of the government title to agricultural lands by passing

the Homestead Act in 1862.

The relation of the Acts of 1866 and 1870 to water

rights and waterways was precisely the same as their

relation to the mineral lands. Their mining features

were crude and were superseded by the more detailed Act

of May 10, 1872, 17 Stat. 91, in which, however, the pol-

icy of favoring local laws and granting mining rights in

accordance therewith is adhered to. The water features

of the original acts are still in force. That the Act of

1866 provides a means for the future acquisition of rights,

water as well as mining, is the settled holding of the

#

TE CRON SC ES

MANE IC AND

452 OCTOBER TERM, 1921.

Argument for the United States. 259 U.S.

courts, and made perfectly clear by the Act of 1870. Jacob

v. Lorenz, 98 Cal. 332, 335; Beaver Brook v. St. Vrain,

6 Colo. App. 130, 138; Wiel, Water Rights, § 99, p. 116;

Long, Irrigation, § 74, p. 134.

This legislation is the foundation of all water rights in

the Western States today and provides a salution and, we

think, the only solution, of the problem of interstate

streams. Mineral lands are held open to “exploration

and occupation ”, and he who occupies is given the right

to take the other steps which lead to a grant. Water

rights are protected and preserved to whoever has pos-

sessed them. Local laws, rules, and customs are used in

both cases to define the right and provide the course that

must be followed to acquire it. The mineralized vein is

recognized, as it was before by the customs of the miners,

as being the thing appropriated, and so the right is given

to follow it regardless of the surface limits of the claim

extending vertically downward, which ordinarily define

the extent of land holdings. In the field of water rights,

again in accordance with local customs, the one who first

“ appropriates,” even for use on nonriparian lands, is

given the better right. Both as to mining and water,

however, the rights granted are only such as any propri-

etor of the whole property involved could grant, and the

rule of priority is only that which necessarily follows from

successive conveyances of defined parts of a whole.

Further, it should be observed that, under this act, the

proprietor, the United States, in a way holds its landed

estate for conveyance in three classes—mineral rights,

water rights, and what may be called, for convenience,

ordinary land rights. It holds all of these rights for con-

veyance separately or together, as the case may be. Con-

sequently, and generally speaking, riparian rights pass

or not, under a patent of riparian land, according to

whether or not the riparian doctrine or the appropriation

doctrine is the rule in the locality where the land is situ-

~

=

=

é

: |

WYOMING v. COLORADO. 453

419. Argument for the United States.

ated. Congress has provided that it shall be otherwise in

the Black Hills Forest Reserve in South Dakota (34 Stat.

233, 234).

It is well understood that the local rules, whether found

in miners’ customs, court decisions, or legislative acts,

were adopted merely to supplement the particular pro-

visions and fundamental conditions of the act, in order to

fit it to local conditions, including local preferences, and

avoid unnecessary complexity and volume in the act it-

self. This plan of adopting local laws or rules as the laws

and rules of Congress is familiar enough. It is seen in

the legislation defining crimes on reservations under ex-

clusive jurisdiction of the General Government; in the

conformity provisions governing the federal courts in

common-law cases; in various laws for the taking of affi-

davits, ete. Illustrations might be greatly multiplied.

Lindley on Mines, 2d ed., § 249; Butte City Water Co. v.

Baker, 196 U.S. 125; Clason v. Matko, 223 U.S. 646, 654.

It is somewhat astonishing to find Broder v. Water Co.,

101 U. S. 274, and Jennison v. Kirk, 98 U.S. 453, 456,

cited in Colorado’s brief as authority for the idea that the

Act of 1866 recognized an independent title or power in

the States. They hold exactly the reverse. See Union

Co. v. Ferris, 2 Sawy. 176, 184; 1 Wiel, Water Rights,

§ 97, p. 113; § 155, p. 177 et seg.; Long, Irrigation, § 74,

p. 134. The grant is made directly to the individual

appropriator. It takes effect upon his bringing himself

within its terms by complying with the local laws. No

patent follows as in the case of mining claims, but the

title passes by virtue of the statute itself and compliance

with it, as is the case with grants of rights of way. Yale,

Mining and Water Rights, p. 380.

The law of water rights in California and the numerous

States which have followed her lead is based squarely

upon the federal title. 1 Wiel, Water Rights, p. 226;

Iuz v. Haggin, 69 Cal. 255, 338; Benton v. Johncoz, 17

ces |

$204 eee eee |

454 OCTOBER TERM, 1921.

Argument for the United States. 259 U.S.

Wash. 277, 289; Morgan v. Shaw, 47 Ore. 333, 337; Smith

v. Denniff, 24 Mont. 20, 21; Barkley v. Tieleke, 2 Mont.

59, 64; Cruse v. McCauley, 96 Fed. 369, 373-374; Howell

v. Johnson, 89 Fed. 556, 558. Colorado and the other

pure appropriation States (1 Wiel, Water Rights, p. 226),

endeavor to find some basis for water rights other than the

federal title. In those States water rights are identical

with appropriation rights in California and the other dual

system States, and, of course, are derived, as they are

there, from the United States by grants under this act.

Subsequent acts of Congress contradict the theory that

federal ownership has been abdicated. Kinney, Irriga-

tion, § 637, and pp. 1091, 1095; Hough v. Porter, 51 Ore.

318; Gutierres v. Albuquerque Land Co., 188 U. S. 545,

552-554; Acts of March 3, 1877, 19 Stat. 377; August 18,

1894, 28 Stat. 422; June 4, 1897, 30 Stat. 11, 36; February

26, 1897, 29 Stat. 599; March 2, 1897, 29 Stat. 603; June

17, 1902, 32 Stat. 388.

The legislation of Congress, with regard to water rights,

all centers upon, and is intended to preserve, the policy

adopted in the Act of 1866. It is the long continuance of

subordinate state control, under a system that involves no

recourse to the source of power, that has caused the fact

that such control is subordinate sometimes to be lost

sight of.

Ratification of state constitutions asserting state owner-

ship of waters does not divest the United States of its

property rights therein. Colo. Const., Art. XVI, § 6;

Coyle v. Oklahoma, 221 U.S. 559, 568; Ex parte Webb,

225 U. S. 663, 690; Wilcor v. McConnell, 13 Pet. 498,

516; Kinney, Irrigation, § 388, p. 660.

The question whether the United States or the States

own the water of innavigable streams in the West has

never been directly passed upon by this court. The cases

support federal ownership. Wiel, Water Rights, pp. 183,

194, 223; Kinney, Irrigation, § 640; Long, Irrigation, § 74,

WYOMING v. COLORADO. 455

419. Opinion of the Court.

p. 134; Atchison v. Peterson, 20 Wall. 507; Basey v.

Gallagher, 20 Wall. 670; Sturr v. Beck, 133 U. S. 541;

United States v. Rio Grande Co., 174 U. S. 690, 704;

Gutierres v. Albuquerque Land Co., 188 U. 8. 545;

Kansas v. Colorado, 206 U. S. 46; Winters v. United

States, 207 U. S. 564; Boquillas Land Co. v. Curtis, 213

U. S. 339.

Upholding of state ownership would disintegrate the

law and destroy federal interests without working any

practical good to the States.

This controversy, as one involving an interstate stream,

should be decided upon the basis of the federal ownership

of lands and waters, thereby confining the ownership of

the States, as ultimate proprietors, to such water rights as

have been or may be granted to the respective States for

themselves or for use in connection with the lands within

their borders. In practice the Federal Government dis-

regards state lines in the use and control of waters for

its own purposes; and state lines have been equally dis-

regarded in the grant, and acquisition, and use, of private

water rights in the Western States; so a division of water

between the States, making state lines controlling, would

interfere with the federal use of water and seriously

modify, or destroy, existing vested rights. These rights,

being grants from the paramount sovereignty, should be

upheld as against the claim that the States, which enjoy

a@ quasi sovereignty only, should be treated in this respect

as independent Nations.

Mr. Justice VAN DEVANTER delivered the opinion of

the court.

This is an original suit in this court by the State of ©

Wyoming against the State of Colorado and two Colorado

corporations to prevent a proposed diversion in Colorado

of part of the waters of the Laramie River, an interstate

stream. The bill was brought in 1911, the evidence was

#2 Pe Ree > |

456 OCTOBER 'TERM, 1921.

Opinion of the Court. 259 U.S.

taken in 1913 and 1914, and the parties put it in con-

densed and narratiye form in 1916 preparatory to the

usual printing. The case has been argued at the bar

three times. The court directed one reargument because

of the novelty and importance of some of the questions

involved, and the other because of an intervening succes-

sion in the office of Chief Justice. As the United States

appeared to have a possible interest in some of the

questions, the court also directed that the suit be called

to the attention of the Attorney General; and, by the

court’s leave, a representative of the United States par-

ticipated in the subsequent hearings.

The Laramie is an innavigable river which has its

source in the mountains of northern Colorado, flows

northerly 27 miles in that State, crosses into Wyoming,

and there flows northerly and northeasterly 150 miles to

the North Platte River, of which it is a tributary. Both

Colorado and Wyoming are in the arid region where flow-

ing waters are, and long have been, commonly diverted

from their natural channels and used in irrigating the

soil and making it productive. For many years some of

the waters of the Laramie River have been subjected to

such diversion and use, part in Colorado and part in

Wyoming.

When this suit was brought the two corporate defend-

ants, acting under the authority and permission of Colo-

rado, were proceeding to divert in that State a consider-

able portion of the waters of the river and to conduct the

same into another watershed, lying wholly in Colorado,

for use in irrigating lands more than fifty miles distant

from the point of diversion. The topography and natural

drainage are such that none of the water can return to the

stream or ever reach Wyoming.

By the bill Wyoming seeks to prevent this diversion on

two grounds: One that, without her sanction, the waters

of this interstate stream cannot rightfully be taken from

WYOMING v. COLORADO. 457

419. Opinion of the Court.

its watershed and carried into another where she never

can receive any benefit from them;:,and the other that

through many appropriations made at great cost, which

are prior in time and superior in right to the proposed

Colorado diversion, Wyoming and her citizens have be-

come and are entitled to use a large portion of the waters

of the river in the irrigation of lands in that State and

that the proposed Colorado diversion will not leave in the

stream sufficient water to satisfy these prior and superior

appropriations, and so will work irreparable prejudice to

Wyoming and her citizens.

By the answers Colorado and her co-defendants seek to

justify and sustain the proposed diversion on three dis-

tinct grounds: First, that it is the right of Colorado as a

State to dispose, as she may choose, of any part or all of

the waters flowing in the portion of the river within her

borders, “ regardless of the prejudice that it may work”

to Wyoming and her citizens; secondly, that Colorado is

entitled to an equitable division of the waters of the river

and that the proposed diversion, together with all sub-

sisting appropriations in Colorado, does not exceed her

share; and, thirdly, that after the proposed diversion there

will be left in the river and its tributaries in Wyoming

sufficient water to satisfy all appropriations in that State

whose origin was prior in time to the effective inception

of the right under which the proposed Colorado diversion

is about to be made.

Before taking up the opposing contentions a survey of

several matters in the light of which they should be ap-

proached and considered is in order.

Both Colorado and Wyoming are along the apex of the

Continental Divide and include high mountain ranges

where heavy snows fall in winter and melt in late spring

and early summer,—this being the chief source of water

supply. Small streams in the mountains gather the water

from the melting snow and conduct it to larger streams

458 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

below which ultimately pass into surrounding States.

The flow in all streams varies greatly in the course of the

year, being highest in May, June and July and relatively

very low in other months. There is also a pronounced

variation from year to year. To illustrate, the gaging

of the Cache la Poudre, a typical stream, for 1912 shows

that the total flow for May, June and July was more

than three times that for the nine other months, and the

gaging for a period of 30 years shows that the yearly flow

varied from 151,636 to 666,466 acre-feet * and was in ex-

cess of 400,000 acre-feet in each of four years and less

than 175,000 acre-feet in each of five years. Both States

have vast plains and many valleys of varying elevation

where there is not sufficient natural precipitation to

moisten the soil and make it productive, but where, when

additional water is applied artificially, the soil becomes

fruitful,—the reward being generous in some areas and

moderate in others, just as husbandry is variously re-

warded in States where there is greater humidity, such

as Massachusetts, Virginia, Ohio and Tennessee. Both

States were Territories long before they were admitted

into the Union as States and while the territorial con-

dition continued were under the full dominion of the

United States. At first the United States owned all the

lands in both and it still owns and is offering for dis-

posal millions of acres in each.

Turning to the decisions of the courts of last resort in

the two States, we learn that the same doctrine respecting

the diversion and use of the waters of natural streams

has prevailed in both from the beginning and that each

State attributes much of her development and prosperity

to the practical operation of this doctrine. The relevant

views of the origin and nature of the doctrine, as shown

in these decisions, may be summarized as follows: The

* An acre-foot is the quantity of water requimed to cover an acre

to a depth of one foot—43,560 cubic feet.

WYOMING v. COLORADO. 459

419. Opinion of the Court.

common-law rule respecting riparian rights in flowing

water never obtained in either State. It always was

deemed inapplicable to their situation and climatic con-

ditions. The earliest settlers gave effect to a different

rule whereby the waters of the streams were regarded as

open to appropriation for irrigation, mining and other

beneficial purposes. The diversion from the stream and

the application of the water to a beneficial purpose con-

stituted an appropriation, and the appropriator was

treated as acquiring a continuing right to divert and use

the water to the extent of his appropriation, but not be-

yond what was reasonably required and actually used.

This was deemed a property right and dealt with and re-

spected accordingly. As between different appropriations

from the same stream, the one first in time was deemed

superior in right, and a completed appropriation was re-

garded as effective from the time the purpose to make it

was definitely formed and actual work thereon was begun,

provided the work was carried to completion with reason-

able diligence. This doctrine of appropriation, prompted

by necessity and formulated by custom, received early

legislative recognition in both Territories and was en-

furced in their courts. When the States were admitted

into the Union it received further sanction in their con-

stitutions and statutes and their courts have been uni-

formly enforcing it. Yunker v. Nichols, 1 Colo. 551;

Schilling v. Rominger, 4 Colo. 100; Coffin v. Left Hand

Ditch Co., 6 Colo. 443; Thomas v. Guiraud, 6 Colo. 530;

Strickler v. Colorado Springs, 16 Colo. 61; Oppenlander v.

Left Hand Ditch Co., 18 Colo. 142; Wyatt v. Larimer,

& Weld Irrigation Co., 18 Colo. 298; Crippen v. White,

28 Colo. 298; Moyer v. Preston, 6 Wyo. 308; Farm Invest-

ment Co. v. Carpenter, 9 Wyo. 110; Willey v. Decker, 11

Wyo. 496; Johnston v. Little Horse Creek Irrigating Co.,

13 Wyo. 208.

As the United States possessed plenary authority over

Colorado and Wyoming while they were Territories and

¢

Petia Pee DM EAE. 4

460 OCTOBER TERM, 1921.

Opinion of the Court. 2 U.S

has at all times owned the public lands therein, we turn

next to its action.

The Act of July 26, 1866, c. 262, § 9, 14 Stat. 251, con-

tained a section providing: “ Whenever, by p'iority of

possession, rights to the use of water for mining agricul-

tural, manufacturing, or other purposes, have \ sted and

accrued, and the same are recognized and ack..owledged

by the local customs, laws, and the decisions of courts,

the possessors and owners of such vested rights shall be

maintained and protected in the same.” The occasion

for this provision and its purpose and effect we e exten-

sively considered by this court in the cases of A chison v.

Peterson, 20 Wall. 507, and Basey v. Gallagher 20 Wall.

670, the conclusions in both being shown in the ollowing

excerpt from the latter, pp. 681-682:

“Tn the late case of Atchison v. Peterson, we .ad occa-

sion to consider the respective rights of miners: running

waters on the mineral lands of the public do iin; and

we there held that by the custom which hac »btained

among miners in the Pacific States and Territories, the

party who first subjected the water to use, o took the

necessary steps for that purpose, was regarded, xcept as

against the government, as the source of title _ all con-

troversies respecting it; that the doctrines of the common

law declaratory of the rights of riparian propri’ ors were

inapplicable, or applicable only to a limited exi :t, to the

necessities of miners, and were inadequate to eir pro-

tection; that the equality of right recognize’ by that

law among all the proprietors upon ibe sam. stream,

would have been incompatible with any exter +d diver-

sion of the water by one proprietor, and its _iveyance

for mining purposes to points from which it ould not

be restored to the stream; that the governme it by its

silent acquiescence had assented to and encou aged the

occupation of the public lands for mining; an that he

who first connected his labor with property ius situated

WYOMING v. COLORADO. 461

419. Opinion of the Court.

and open to general exploration, did in natural justice

acquire a better right to its use and enjoyment than

others who had not given such labor; that the miners on

the public lands throughout the Pacific States and Terri-

tories, by their customs, usages, and regulations, had

recognized the inherent justice of this principle, and the

principle itself was at an early period recognized by legis-

lation and enforced by the courts in those States and Ter-

ritories, and was finally approved by the legislation of

Congress in 1866. The views there expressed and the

rulings made are equally applicable to the use of water on

the public lands for purposes of irrigation. No distine-

tion is made in those States and Territories by the cus-

tom of miners or settlers, or by the courts, in the rights

of the first appropriator from the use made of the water,

if the use be a beneficial one.”

And on the same subject it was further said, in Broder v.

Water Co., 101 U.S. 274, 276:

“Tt is the established doctrine of this court that rights

of miners, who had taken possession of mines and worked

and developed them, and the rights of persons who had

constructed canals and ditches to be used in mining opera-

tions and for purposes of agricultural irrigation, in the

region where such artificial use of the water was an abso-

lute necessity, are rights which the government had, by its

conduct, recognized and encouraged and was bound to

protect, before the passage of the act of 1866. We are

of opinion that the section of the act which we have

quoted was rather a voluntary recognition of a pre-exist-

ing right of possession, constituting a valid claim to its

continued use, than the establishment of a new one.”

The Act of July 9, 1870, c. 235, § 17, 16 Stat. 217, pro-

vided that “ all patents granted, or preemption or home-

steads allowed, shall be subject to any vested and accrued

water rights” acquired under or recognized by the pro-

vision of 1866. These provisions are now §§ 2339 and

2340 of the Revised Statutes.

462 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

The Act of March 3, 1877, c. 107, § 1, 19 Stat. 377, pro-

viding for the sale of desert lands in tracts of one section

each to persons undertaking and effecting their reclama-

tion, contained a proviso declaring that “ the right to the

use of water by the person so conducting the same, on

or to any tract of desert land of six hundred and forty

acres shall depend upon bona fide prior appropriation:

and such right shall not exceed the amount of water

actually appropriated, and necessarily used for the pur-

pose of irrigation and reclamation: and all surplus water

over and above such actual appropriation and use, to-

gether with the water of all lakes, rivers and other sources

of water supply upon the public lands and not navigable,

shall remain and be held free for the appropriation and

use of the public for irrigation, mining and manufacturing

purposes subject to existing rights.” Colorado was not at

first included in this act, but was brought in by an

amendatory act. Next came the Act of March 3, 1891,

c. 561, § 18, 26 Stat. 1095, granting rights of way through

the public lands and reservations for canals and ditches

to be used for irrigation purposes, and containing a pro-

viso saying, “the privilege herein granted shall not be

construed to interfere with the control of water for irri-

gation and other purposes under authority of the re-

spective States or Territories.”

Of the legislation thus far recited it was said, in United

States v. Rio Grande Dam & Irrigation Co., 174 U. S.

690, 706: “ Obviously by these acts, so far as they ex-

tended, Congress recognized and assented to the appro-

priation of water in contravention of the common law

rule as to continuous flow”; and again, “the obvious

purpose of Congress was to give its assent, so far as the

public lands were concerned, to any system, although in

contravention to the common law rule, which permitted

the appropriation of those waters for legitimate indus-

tries.”

|

WYOMING v. COLORADO. 463

419. Opinion of the Court.

June 17, 1902, c. 1093, 32 Stat. 388, the National Recla-

mation Act was passed, under which the United States en-

tered upon the construction of extensive irrigation works

to be used in the reclamation of large bodies of arid public

lands in the western States. Its eighth section declared:

“ Nothing in this act shall be construed as affecting or in-

tended to affect or to in any way interfere with the laws

of any State or Territory relating to the control, appro-

priation, use, or distribution of water used in irrigation,

or any vested right acquired thereunder, and the Secretary

of the Interior, in carrying out the provisions of this Act,

shall proceed in conformity with such laws, and nothing

herein shall in any way affect any right of any State or of

the Federal Government or of any landowner, appro-

priator, or user of water in, to, or from any interstate

stream or the waters thereof: Provided, That the right

to the use of water acquired under the provisions of this

Act shall be appurtenant to the land irrigated, and bene-

ficial use shall be the basis, the measure, and the limit of

the right.” The words which we have italicized constitute

the only instance, so far as we are advised, in which the

legislation of Congress relating to the appropriation of

water in the arid land region has contained any distinct

mention of interstate streams. The explanation of this

exceptional mention is to be found in the pendency in

this court at that time of the case of Kansas v. Colorado,

wherein the relative rights of the two States, the United

States, certain Kansas riparians and certain Colorado

appropriators and users in and to the waters of the

Arkansas River, an interstate stream, were thought to be

involved. Congress was solicitous that all questions re-

specting interstate streams thought to be involved in that

litigation should be left to judicial determination un-

affected by the act,—in other words, that the matter be

left just as it was before. The words aptly reflect that

purpose.

WE,

Se ya "etait Ata 4a

WER

lar

i

464 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

The decision in Kansas v. Colorado, 206 U. S. 46, was a

pioneer in its field. On some of the questions presented

it was intended to be and is comprehensive, and on others

it was intended to be within narrower limits, the court

saying, “ the views expressed in this opinion are to be

confined to a case in which the facts and the local law of

the two States are as here disclosed.” On full considera-

tion it was broadly determined that a controversy be-

tween two States over the diversion and use of waters of

a stream passing from one to the other “ makes a matter

for investigation and determination by this court ” in the

exercise of its original jurisdiction, and also that the upper

State on such a stream does not have such ownership or

control of the waters flowing therein as entitles her to

divert and use them regardless of any injury or prejudice

to the rights of the lower State in the stream. And, on

consideration of the particular facts disclosed and the local

law of the two States, it was determined that Colorado

was not taking more than what under the circumstances

would be her share under an equitable apportionment.

As respects the scope and interpretation of the ultimate

conclusion in that case it should be observed, first, that

the court was there concerned, as it said, with a contro-

versy between two States, “ one recognizing generally the

common-law rule of riparian rights” and the other the

doctrine of appropriation; secondly, that the diversion

complained of was not to a watershed from which none

of the water could find its way into the complaining

State, but quite to the contrary; and, thirdly, that what

the complaining State was seeking was not to prevent a

proposed diversion for the benefit of lands as yet un-

reclaimed, but to interfere with a diversion which had

been practiced for years and under which many thousands

of acres of unoccupied and barren lands had been re-

claimed and made productive. In these circumstances,

and after observing that the diminution in the flow of

WYOMING v. COLORADO. 465

419. Opinion of the Court.

the river had resulted in “ perceptible injury ” to portions

of the valley in Kansas, but in “ little, if any, detriment ”

to the great body of the valley, the court said, “ it would

seem equality of right and equity between the two States

forbids any interference with the present withdrawal of

water in Colorado for purposes of irrigation; ” and that,

if the depletion of the waters by Colorado should be in-

creased, the time would come when Kansas might “ right-

fully call for relief against the action of Colorado, its cor-

porations and citizens in appropriating the waters of the

Arkansas for irrigation purposes.” What was there said

about “equality of right” refers, as the opinion shows

(p. 97), not to an equal division of the water, but to the

equal level or plane on which all the States stand, in

point of power and right, under our constitutional system.

Like that case the one now before us presents a contro-

versy over the waters of an interstate stream. But here

the controversy is between States in both of which the

doctrine of appropriation has prevailed from the time of

the first settlements, always has been applied in the same

way, and has been recognized and sanctioned by the

United States, the owner of the public lands. Here the

complaining State is not seeking to impose a policy of her

choosing on the other State, but to have the common

policy which each enforces within her limits applied in

determining their relative rights in the interstate stream.

Nor is the United States seeking to impose a policy of its

choosing on either State. All that it has done has been

to recognize and give its sanction to the policy which each

has adopted. Whether its public land holdings would en-

able it to go further we need not consider. And here the

complaining State is not seeking to interfere with a diver-

sion which has long been practiced and under which much

reclamation has been effected, but to prevent a proposed

diversion for the benefit of lands as yet unreclaimed.

With this understanding of the case in hand and of

some of the matters in the light of which it should be con-

Be oe

466 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

sidered, we take up the several contentions, before no-

ticed, which are pressed on our attention.

The contention of Colorado that she as a State right-

fully may divert and use, as she may choose, the waters

flowing within her boundaries in this interstate stream,

regardless of any prejudice that this may work to others

having rights in the stream below her boundary, can not

be maintained. The river throughout its course in both

States is but a single stream wherein each State has an

interest which should be respected by the other. A like

contention was set up by Colorado in her answer in Kan-

sas v. Colorado and was adjudged untenable. Further

consideration satisfies us that the ruling was right. It has

support in other cases, of which Rickey Land & Cattle Co.

v. Miller & Luz, 218 U.S. 258; Bean v. Morris, 221 U.S.

485; Missouri v. Illinois, 180 U.S. 208, and 200 U. S. 496,

and Georgia v. Tennessee Copper Co., 206 U. S. 230, are

examples.

The objection of Wyoming to the proposed diversion

on the ground that it is to another watershed, from which

she can receive no benefit, is also untenable. The fact

that the diversion is to such a watershed has a bearing in

another connection, but does not in itself constitute a

ground for condemning it. In neither State does the

right of appropriation depend on the place of use being

within the same watershed. Diversions from one water-

shed to another are commonly made in both States and

the practice is recognized by the decisions of their courts.

Coffin v. Left Hand Ditch Co., 6 Colo. 443, 449; Thomas

v. Guiraud, 6 Colo. 530; Hammond v. Rose, 11 Colo. 524;

Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 144;

Moyer v. Preston, 6 Wyo. 308, 321; Willey v. Decker, 11

Wyo. 496, 529-531. And the evidence shows that diver-

sions are made and recognized in both States which in

principle are not distinguishable from this, that is, where

water is taken in one State from a watershed leading into

WYOMING v. COLORADO. 467

419, Opinion of the Court.

the other State and conducted into a different watershed

leading away from that State, and from which she never

can receive any benefit. The principle of such diversions

being recognized in both States, its application to this in-

terstate stream does not in itself afford a ground for com-

plaint, unless the practice in both be rejected in determin-

ing what, as between them, is reasonable and admissible

as to this stream, which we think should not be done.

We are thus brought to the question of the basis on

which the relative rights of these States in the waters of

this interstate stream should be determined. Should the

doctrine of appropriation, which each recognizes and en-

forces within her borders, be applied? Or is there an-

other basis which is more consonant with right and equity?

The lands in both States are naturally arid and the

need for irrigation is the same in oneasin the other. The

lands were settled under the same public land laws and

their settlement was induced largely by the prevailing

right to divert and use water for irrigation, without which

the lands were of little value. Many of the lands were

acquired under the Desert Land Act which made reclama-

tion by irrigation a condition to the acquisition. The first

settlers located along the streams where water could be

diverted and applied at small cost. Others with more

means followed and reclaimed lands farther away. Then

companies with large capital constructed extensive canals

and occasional tunnels whereby water was carried to lands

remote from the stream and supplied, for hire, to settlers

who were not prepared to engage in such large undertak-

ings. Ultimately, the demand for water being in excess

of the dependable flow of the streams during the irriga-

tion season, reservoirs were constructed wherein water

was impounded when not needed and released when

needed, thereby measurably equalizing the natural flow.

Such was the course of irrigation development in both

4

468 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

States. It began in territorial days, continued without

change after statehood, and was the basis for the large

respect always shown for water rights. These constituted

the foundation of all rural home building and agricultural

development, and, if they were rejected now, the lands

would return to their naturally arid condition, the efforts

of the settlers and the expenditures of others would go

for naught and values mounting into large figures would

be lost.

In neither State was the right to appropriate water

from this interstate stream denied. On the contrary, it

was permitted and recognized in both. The rule was the

same on both sides of the line. Some of the appropria-

tions were made as much as fifty years ago and many as

much as twenty-five. In the circumstances we have

stated, why should not appropriations from this stream be

respected, as between the two States, according to their

several priorities, as would be done if the stream lay

wholly within either State? By what principle of right

or equity may either State proceed in disregard of prior

appropriations in the other?

Colorado answers that this is not a suit between private

appropriators. This is true, but it does not follow that

their situation and what has been accomplished by them

for their respective States can be ignored. As respects

Wyoming the welfare, prosperity and happiness of the

people of the larger part of the Laramie valley, as also a

large portion of the taxable resources of two counties, are

dependent on the appropriations in that State. Thus the

interests of the State are indissolubly linked with the

rights of the appropriators. To the extent of the appro-

priation and use of the water in Colorado a like situation

exists there.

Colorado further answers that she can accomplish more

with the water than Wyoming does or can; that she pro-

poses to use it on lands in the Cache la Poudre valley, and

WYOMING v. COLORADO. 469

419. Opinion of the Court.

that they with less water will produce more than the lands

in the portion of the Laramie valley known as the Lara-

mie Plains. It is true that irrigation in the Poudre valley

has been carried to a higher state of development than

elsewhere in the Rocky Mountain region and that the

lands of that valley lie at a lower altitude than do those

in the Laramie Plains and generally are better adapted

to agriculture. In some parts they also require less water.

It may be assumed that the lands intended to be re-

claimed and irrigated in the Poudre valley conform to the

general standard, although this is left uncertain. But for

combined farming and stockraising those of the Laramie

Plains offer opportunities and advantages which are well

recognized. It is to this use that they chiefly are devoted.

It is a recognized and profitable industry, has been carried

on there for many years and is of general economic value.

Many of the original ranchmen still are engaged in it,—

some on the tracts where they first settled. With the aid

of irrigation, native hay of a high quality, alfalfa, oats

and other forage are grown for winter feeding, the live

stock being grazed most of the year on unirrigated areas

and in the neighboring hills and mountains. In this way

not only are the irrigated tracts made productive, but the

utility and value of the grazing areas are greatly en-

hanced. The same industry is carried on in the same

way in sections of Colorado. In both States this is a pur-

pose for which the right to appropriate water may be

exercised, and no discrimination is made between it and

other farming. Even in this suit Colorado is asserting

appropriations of this class for 4,250 acres in the portion

of the Laramie valley in that State, and is claiming under

them an amount of water in excess of what she asserts

will irrigate a like acreage in the Poudre valley.

Some of the appropriations from the stream in Wyo-

ming are used for agriculture alone. One of the large

projects, dating from territorial days, and constructed at

ur

Ke

‘

470 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

great cost, carries water from the river through a tunnel

one-half mile long and canals several miles in length to

the Wheatland District where it is used in irrigating

30,000 acres, all of which are very successfully and profit-

ably farmed in small tracts. This project uses one very

large and one comparatively small reservoir for storing

water and equalizing the natural flow.

We conclude that Colorado’s objections to the doctrine

of appropriation as a basis of decision are not well taken,

and that it furnishes the only basis which is consonant

with the principles of right and equity applicable to such

a controversy as this is. The cardinal rule of the doctrine

is that priority of appropriation gives superiority of right.

Each of these States applies and enforces this rule in her

own territory, and it is the one to which intending appro-

priators naturally would turn for guidance. The principle

on which it proceeds is not less applicable to interstate

streams and controversies than to others. Both States

pronounce the rule just and reasonable as applied to the

natural conditions in that region; and to prevent any

departure from it the people of both incorporated it into

their constitutions. It originated in the customs and

usages of the people before either State came into exist-

ence, and the courts of both hold that their constitutional

provisions are to be taken as recognizing the prior usage

rather than as creating a new rule. These considerations

persuade us that its application to such a controversy as

is here presented cannot be other than eminently just and

equitable to all concerned.

In suits between appropriators from the same stream,

but in different States recognizing the doctrine of appro-

priation, the question whether rights under such appro-

priations should be judged by the rule of priority has been

considered by several courts, state and federal, and has

been uniformly answered in the affirmative. Conant v.

Deep Creek Irrigation Co., 23 Utah, 627, 631; Willey v.

j

WYOMING v. COLORADO. 471

419. Opinion of the Court.

Decker, 11 Wyo. 496, 534-535; Taylor v. Hulett, 15 Idaho,

265, 271; Howell v. Johnson, 89 Fed. 556; Hoge v. Eaton,

135 Fed. 411; Morris v. Bean, 146 Fed. 423; Bean v. Mor-

ris, 159 Fed. 651. One of the cases came to this court and

the judgment below was affirmed. Bean v. Morris, 221

U. S. 485. These decisions, although given in suits be-

tween individuals, tend strongly to support our conclu-

sion, for they show that by common usage, as also by

judicial pronouncement, the rule of priority is regarded

in such States as having the same application to a stream

flowing from one of them to another that it has to streams

wholly within one of them.

The remaining questions are largely matters of fact.

The evidence is voluminous, some of it highly technical

and some quite conflicting. It has all been considered.

The reasonable limits of an opinion do not admit of its

extended discussion. We must be content to give our

conclusions on the main questions and make such refer-

ences to and coniment on what is evidential as will point

to the grounds on which the conclusions on those ques-

tions rest. As to minor questions we can only state the

ultimate facts as we find them from the evidence.

The question first in order, and the one most difficult

of solution, relates to the flow of the Laramie River, the

common source of supply. The difficulty arises chiefly

out of the fact that the flow varies greatly in the course of

the year and also from year to year.

Colorado’s evidence, which for convenience we take up

first, is directed to showing the average yearly flow of all

years in a considerable period, as if that constituted a

proper measure of the available supply. We think it is

not a proper measure,—and this because of the great

variation in the flow. To be available in a practical sense

the supply must be fairly continuous and dependable.

No doubt the natural flow can be materially conserved

and equalized by means of storage reservoirs, but this has

472 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

its limitations, both financial and physical. The construc-

tion of reservoirs of real capacity is attended with great

expense, and unless an adequate return reasonably can

be foreseen the expenditure is not justified and will not be

made. The years of high water and those of low do not

alternate. Often several of the’same kind follow in suc-

cession. The evaporation of stored water in Colorado and

Wyoming is from five to six feet per year. So, while it

generally is practicable to store water in one part of the

year for use in another, or in one year for use in the next,

it often, if not generally, is impracticable to store it for

longer periods. All this is recognized elsewhere in Colo-

rado’s evidence. One of her principal witnesses said:

“With regard to financial practicability of construc-

tion of reservoirs on Poudre River capable of conserving

extraordinary floods, will state that they call for an ex-

penditure that could be utilized only occasionally. It

would be similar to financial proposition of people in

Florida preparing to heat their houses in the same man-

ner as those in the northern part of the United States.

For years of unusually high flow in the Poudre River, con-

servation works, to utilize the excess waters in that

stream, would have to count on carrying water over more

than one year. The utilization of this water means the

presence of population on the land; that population must

have a living from year to year and they are not justified

in going out on the land and settling to raise a crop only

once in three or four years. They must have sufficient to

make a living from one year to another, and consequently

the investment must be such that there can be sufficient

water every year to keep these people on the land, and

when water can only be conserved once in every three to

five years, there must be provision for carrying over water

or the people cannot live. It is a question of population

as well as investment. The population has to exist and

stay on the ground. From standpoint of investment, con-

;

WYOMING v. COLORADO. 473

419. Opinion of the Court.

servation of flow such as extreme flow of 1884 would be

impractical to the extent that it exceeded the ordinary

high year. Of such character would be [also] the floods of

1885, 1900 and 1909, three [four] years in thirty.” The

same witness further said: “Aside from reasons which I

have given why reservoirs designed to catch only these

rare high water flows of Poudre River are not feasible, it

is a fact that no farmer would be able to anticipate the

high flow and therefore could not depend at all upon water

for irrigation until it reached him. If he undertook to so

divert water it would become a gamble rather than a safe

guide for living.”

Another of her witnesses said:

“The present storage capacity in the Poudre Valley is

such that in some years the reservoirs are not all filled,

while in some years they are filled and water runs to

waste. . . . It would not be possible to inaugurate a

scheme in the Poudre Valley to construct reservoirs to

store water from one year of high flow to another where

such water is the only source of supply, for the reservoirs

would have to be constructed to hold the maximum

amount, and if the water has to be carried over for three

years the average diversion from the reservoir would be

only one-third of its capacity, making the cost per acre

prohibitive.”

And still another of her witnesses, referring to the un-

used waters of the Poudre in years of high flow and also

to what is contemplated by the defendants in respect of

the Laramie, said:

“The really dependable water supply of the District ’

will come from the Laramie River, the amount secured

from the Poudre River fluctuating greatly and being used

to augument the supply from the Laramie. There will

1 The reference is to the Greeley-Poudre Irrigation District, one of

the defendants.

a

~ tonsa Ream

474 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

be years when the supply from the Poucre Riv «and its

tributaries will be practically »othing. Our plan. sontem-

plate taking all the water that it is possible for’ to take

from the Laramie River each year. It is poss: e to get

only a certain amount from that river, and I+ not be-

lieve that we can absolutely depend on » ore th _ half the

required amount from the Laramie Riv —_ The ~ -ry great

floods on that watershed we cannot cc sider Levause we

cannot construct works to take care of \em.”

In accord with these statements, .aring © what is

susceptible of use in actual practice, is furthe evidence

coming from Colorado’s witnesses and exhii. 3 to the

effect that, notwithstanding the great need fc water in

the Poudre valley and the returns obtained fi. : its use,

large amounts of water pass down the stream w hout use

or impounding in the years when the flow excee 3 what is

termed the average. With the high state of irr ition de-

velopment in that valley the full capacity of th -eservoir

system there provided when the proof was | ken was

146,655 acre-feet,—an evidence of the limitatio: inhering

in the practical storage of water from such stre as.

The Cache la Poudre River heads in the same ountain

range as does the Laramie and the conditions w_ ch make

for a pronounced variation in the natural fiu.- r> largely

the same with both. The following table com ‘ed from

data relating to the Cache la Poudre, furnishe: 2y Colo-

rado, will be helpful in illustrating the view cf the wit-

nesses, and also ours. We add the third and ‘ irth col-

umns.

WYOMING v. COLORADO. 475

419. Opinion of the Court.

VARIATION IN ANNUAL Net DISCHARGE

OF

CacueE LA Poupre RIver.

April to October, both inclusive, for 30 years.

Taken from Colorado’s Exhibit 124.

:n-off riance Variance from

Year. ze ome fal a

1884 666,466 | +369, 144 +403, 883

1885 465,475 | +168, 153 +202, 892

1886 290,392 | — 6,930 + 27,809

WOOT canes 286,840 | — 10,482 + 24, 257

1888 . 155,970 | —141, 352 —106, 613

1889... 185, 060 | —112, 262 — 77,523

1890 eee 221,023 | — 76,299 — 41,560

PPR cc dabntandnucscccnviacccsccass 257,236 | — 40,086 — 65,347

| TT TT eee 193,790 | —103, 532 — 68,793

1893.....cceceeccececccececceeees-{ 216,730] — 80,592] — 45,853

1894... ..cccecececececcceccceee-es-{ 909,444] +4 12,122] + 46,861

1895....ccoccccececccecccceeceeess| $44,500] +4 47,178] + 81,917

1896...ccccecececececcceceecceees-| 162,340] —194,982] —100, 243

1897....ccececececcecccccceeeeees-{ 382,070] + 34,748] + 69,487

1898....cccecececececceceececeeee-{ 172,290] —125,082 | — 90, 293

1899....cecccceccececceececeeees+-| 988,591 | + 91,269] -+126, 008

1900....ccceceeceecccccececceeeese| 474,573] +177,251] +211, 990

ROR REO 339,155 | + 41,833| + 76,572

1902....ccccccececcccececcceeeees-| 151,686] —145,686| —110,947

TROPA Ge

SEI! gle

ec iaskacvinksasel |

TRS ee

| IRIE? EE

REE ie

AES

Ry

ASIN AE

ELE?

Ral sctiacisudasdcutanenkente’ |e

+

eS

5S

be

88

ZS

B35

+1

RS

8s

ee ee ees

3 &

323888

Z

8

=

Average 297,322, including all years.

Average 262,583, omitting 1884, 1885, 1900, and 1909.

This table shows that during thirty years—1884 to

1913—the yearly flow of the Cache la Poudre ranged from

151,636. to 666,466 acre-feet, that in sixteen of the thirty

it fell below the average, and that eight of .the sixteen

oF OI nh ONE IA MAR CY

—— Gb ena res FLAY

476 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

were in immediate succession. Obviously it is not finan-

cially practicable, even by means of reservoirs, to equalize

the flow of a stream subject to such variation so that it

will have a fairly constant and dependable flow at the

average of all years. For further illustration we have

taken the average of the twenty-six years remaining after

excluding the four described by the witness as extraor-

dinary (these being left to take the average of the

others) and on that basis have made a computation of the

excess and deficiency, which is shown in the fourth

column of the table. Even on this basis there were thir-

teen years in which the flow was below the average and,

of these, six came in immediate succession. In four the

deficiency exceeded 100,000 acre-feet and of the four only

one followed a year in which there was an excess sufficient,

if carried over in storage, to cover the deficiency. This

suffices to show that the average of all years is far from

being a proper or safe measure of the available supply.

An intending irrigator acquiring a water right based on

such a measure would be almost certainly confronted with

drought when his need for water was greatest. Crops

cannot be grown on expectations of average flows which

do not come, nor on recollections of unusual flows which

have passed down the stream in prior years. Only when

the water is actually applied does the soil respond.

We have dealt with the matter of the average flow at

this length because throughout Colorado’s evidence and

in her briefs it is treated as if it were a proper measure of

the supply available for practical use. It is there applied

to the Laramie not only directly, but indirectly by in-

creasing the gaged flow for a particular year or period by

percentages derived by comparing the flow of the Poudre

for that year or period with the average for the thirty

years, including those in which the flow was so extraordi-

nary that concededly much of it neither was nor could be

used. Thus water which is not part of the available sup-

ply is counted in measuring that supply.

WYOMING v. COLORADO. 477

419. Opinion of the Court.

When the evidence was taken, in 1913 and 1914, the

Laramie had not been gaged so thoroughly nor for so

long a period as had the Cache la Poudre. Such gaging

as had occurred had been done at different places in dif-

ferent periods, partly by the United States Geological

Survey, partly by Colorado and partly by Wyoming.

Some of the gaging stations were in Colorado, but most

were in Wyoming. The latter included Woods, nine miles

north of the state boundary, and the Pioneer Dam, four

miles north of Woods. The evidence centered largely

around the flow and gaging at these places. Colorado’s

chief witness prepared and presented a table based on

data, drawn from various sources, and bearing on the flow

at Woods from April to October, both inclusive, for several

years and made this table the principal basis of his testi-

mony concerning the flow of the stream in that vicinity.

We here reproduce the material part of the table, the

third and fourth columns being ours.

DISCHARGE OF LARAMIE River, Woops, Wyo.

April to October, both inclusive, for 9 years.

Taken from Colorado’s Exhibit 127.

— Variance from

Year. Acre-teet. | * ae average ot all

eee eet yee Pere 220,239} + 21,694| + 45,730

1896... 108,022 | — 90,523} — 66,487

Re oe i 251,074 | + 52,529| + 76,565

RERUN 117,765 | — 80,780] — 56,744

1899... 390,730 | +192, 185| +216, 221

1900... 248,105 | + 49, 560 + 73,596

1911.. 138, 240 — 60,305 — 36, 269

1912. 213,407 | + 14,862| + 38,898

1913.. 99, 221 — 99,324 — 75, 288

Average, 198,533, including all years.

Average, 174,509, excluding 1899.

| :

478 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

The data covered two widely separated periods, one of

six years and the other of three. The witness took the

average of the nine years, which he gave as 198,545 acre-

feet, and made this the basis of further calculations. He

estimated that the usual flow for the other months was

one-tenth of that for the full year, or, putting it in an-

other way, one-ninth of that from April to October, both

inclusive; and on this basis he added to his average

21,945 acre-feet, making 220,490. Consulting the Cache

la Poudre table, set forth above, he concluded that the

nine years, in combination, fell below the full average

for the thirty years covered by that table, and to bring

the nine years up to a thirty-year average he added 9,510

acre-feet, making 230,000. Some water from Wyoming

enters the river between the state boundary and Woods,

and for this he deducted 13,000 acre-feet, leaving 217,000.

Then, making a reservation as to Sand Creek, to be con-

sidered presently, he concluded that 217,000 acre-feet was

the average yearly flow in that section of the river. He

called it the “ normal ” flow, an evident misnomer. This

did not include water diverted in Colorado, under recog-

nized Colorado appropriations, which does not reach

Wyoming.

Even if the computation was to be made along the lines

of something approaching a general average, we think the

witness’s computation and conclusion are subject to ob-

jection in particulars which we proceed to state.

The table shows that the flow for 1899 was extraordi-

nary, so much so that it should have been excluded in com-

puting the average and left to take the general level of

the others. Its flow was 216,221 acre-feet in excess of

their average. The excess added nothing to the available

supply,—that which in practice could be used. The flow

for the next year was such that it required no augmenta-

tion from 1899. So, the inclusion of 1899 in the compu-

tation was, in effect, taking what was not available as a

WYOMING v. COLORADO. 479

419. Opinion of the Court.

measure of what was. The error raised the average of the

other years 24,036 acre-feet, and was carried into the

ultimate conclusion.

We do not doubt that it was admissible to compare the

data relating to the Laramie with that relating to the

Cache la Poudre and to give effect to such conclusions as

reasonably were to be drawn from the comparison; but

we think there was no justification for the addition which

was made to bring the nine years up to the standard of an

average year among the thirty covered by the Cache la

Poudre table. The addition tended to distort rather than

to reflect the available supply. Looking at the Cache la

Poudre table, it is evident that the nine years, in combi-

nation, would not have appeared short in flow had the four

extraordinary years in the thirty been excluded, as they

should have been. Besides, a comparison of the two tables

shows that the variation in yearly flow in the two streams

is not the same and that the difference is such as to pre-

clude a nice calculation such as was here made on the

basis of an assumed uniformity. To illustrate: According

to one table the flow of the Poudre from April to October,

both inclusive, in 1900 was 85,982 acre-feet in excess of

that for the same months in 1899, while according to the

other the flow of the Laramie for those months in 1899

was 142,625 acre-feet in excess of that for the correspond-

ing period in 1900; and according to one table the flow

of the Poudre for those months in 1913 was 73.2 per cent.

of that for the same part of 1912, while according to the

other the flow of the Laramie for those months in 1913

was 46.5 per cent. of that for the same part of 1912.

Assuming that 13,000 acre-feet enter the river from

Wyoming between the state boundary and Woods, and are

part of the river at the latter point, we think this water

should not have been deducted. It is part of the supply

available to satisfy appropriations from the stream in

Wyoming.

PUPAE, ere. |

| ae LEGO PAL ORLA ATA

480 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

The witness treated the flow from April to October,

both inclusive, in 1912 as being 213,407 acre-feet, and the

flow in the same months in 1913 as being 99,221 acre-feet.

In this we think he erred. The evidence establishes that

the flow in the first period was not more than 191,820

acre-feet and in the second was not more than 94,369.

Even with the year 1899 excluded, this error increased the

average 3,305 acre-feet.

If we exclude the extraordinary flow of 1899, make the

needed correction in the flow of 1912 and 1913, and as-

sume the accuracy of the other data, the average becomes

171,204 acre-feet, instead of 198,545, as given by the wit-

ness. This requires that the 21,945 acre-feet which were

added to cover the flow for the five other months be re-

duced to 19,023.

When these corrections are made in the witness’s data

and computation, the result is changed from 217,000 acre-

feet to 190,227.

But we are of opinion that the computation and con-

clusion of the witness, even when revised in the way we

have indicated, are based too much on the average flow

and not enough on the unalterable need for a supply

which is fairly constant and dependable, or is susceptible

of being made so by storage and conservation within

practicable limits. By this it is not meant that known

conditions must be such as give assurance that there will

be no deficiency even during long periods, but rather that

a supply which is likely to be intermittent, or to be ma-

terially deficient at relatively short intervals, does not

meet the test of practical availability. As we understand

it, substantial stability in the supply is essential to suc-

cessful reclamation and irrigation. The evidence shows

that this is so, and it is fully recognized in the literature

on the subject.

The same witness prepared and submitted another table

embodying all the data he was able to secure from records

WYOMING v. COLORADO. 481

419. Opinion of the Court.

of past gaging and measurements at Woods. This in-

cluded ‘three years not shown in the nine-year table.

They and their recorded flow from April to October, both

inclusive, were: 1889, 132,349 acre-feet; 1890, 168,406

acre-feet, and 1891, 207,146 acre-feet. The witness pro-

nounced the data for these years less accurate than that

for the others, and, while his reason for doing so does not

clearly appear, we shall assume he was right. Had the

three years been included in the nine-year table that

would have reduced the average from 198,545 to 189,371

acre-feet, counting all years, and from 174,509 to 171,066

| acre-feet, counting all but 1899. It, however, would not

have shown another year with a flow as low as that of

1913, nor as low as that of 1896.

Colorado presented other evidence in the way of general

estimates, results of very fragmentary gaging, and opin-

ions based on rough measurements of snow-drifts in the

mountainous area about the head of the stream; but we

put all of this aside as being of doubtful probative value

at best and far less persuasive than the evidence we have

been discussing.

Wyoming’s evidence was based on the same recorded

data that were used by Colorado, and also on actual gaging

and measurements by an experienced hydrographer cover-

ing the period beginning April 1, 1912, and ending April

30, 1914. Shortly stated, her evidence was to the effect

that the actual measured flow at the Pioneer Dam, four

miles below Woods, was 198,867 acre-feet from April to

December, both inclusive, in 1912, was 109,593 acre-feet

for all of 1913 and was 19,181 acre-feet for the first four

months of 1914; that the flow for 1912 was somewhat

above the average, counting all years; that the flow for

1913 was somewhat more than fifty per cent. of the aver-

age, and that the average at Woods and in that vicinity,

counting all years, was approximately 200,000 acre-feet.

Wyoming’s chief witness, the hydrographer, submitted

a - | fl

Beinn Wet

482 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

the following table giving the results of his gaging and

measurements at the Pioneer Dam.

DISCHARGE OF LARAMIE River AT PIONEER DAM, NEAR

Woops, Wyro., (Including diversion just above dam by

Pioneer Canal)

IN ACRE-FEET.

|

| 1912 1913 1914

January. ......---- 2-02 cece eee eee eee e eens 2, 650 3, 283

February .....-..- 2-2. eee eee ee cence een eeces 2, 355 3, 088

SN GR e Tee petro yee Srete te Ci 3, 296 4, 003

April... 2.2.2.2. - eee eee eee eens 5, 534 12, 674 8, 807

May........ccecen cee ceneceececees | 40, 643 ee eee

BR, x GiSAcNRbSSSKASA SSS NEROEA 91, 874 BE GRR Ts vicccwcs ss

July... ec cccwcnencccccccccceees 34, 863 J ae

August.........-------+-eeee cree 7, 809 B, UMD fa nnncccccees

Septem er........-------+--+++++++ 4, 641 hg eee

OCbOdeEr. .....0.. ccc wc eeeesessccces 6, 456 BRIS faxsacssccses

November. .......--2200-ceeeeees | 4, 403 BOTT hv ancnccaccss

eS ere re eee 2, 644 ROME 1a aka ccc asks

ND cuca ctabanscsinsens 198, 867 109, 593 19, 181

The evidence does not permit us to doubt the accuracy

of these data. They were obtained by work which is

shown to have been painstakingly and conscientiously

done by one fully competent to do it. The place at which

it was done was well adapted to obtaining accurate results

and the observations were continuous, not merely occa-

sional or intermittent.

As the gaging did not cover the first three months of

1912, it is necessary to arrive at the flow for those months.

The proof shows that the flow for the same months in

1914 fairly may be taken for the purpose. That was

10,374 acre-feet, the addition making 209,241 acre-feet

for 1912. The flow for 1913 was 109,593 acre-feet. Both

should be increased 4,000 acre-feet to cover water diverted

between Woods and the Pioneer Dam and not returning

WYOMING v. COLORADO. 483

419. Opinion of the Court.

to the stream above the gaging station. This gives a total

of 213.241 acre-feet for 1912 and 113,593 acre-feet for

1913. Tested by the flow of these years, the available

supply would be 163,417 acre-feet ; that is to say, on that

basis the excess in 1912 would match the deficiency in

1913. But a survey of more than two years is essential

in arriving at a fair conclusion respecting the available

supply. A year of low flow is not always preceded by one

of high or moderate flow as was the case with 1912 and

1913.

In diverting and applying water in irrigation there is a

material loss through evaporation, seepage and otherwise

which is unavoidable. The amount varies according to

the conditions —chiefly according to the distance the

water is carried through canals and ditches and the length

of time it is held in storage. Where the places of use are

in the same watershed and relatively near the stream,

as is true of the lands on the Laramie Plains served by the

greater part of the Wyoming appropriations, a substantial

amount of water percolates back into the stream from irri-

gated areas and becomes available for further use lower

down the stream. This is called return water. The

amount varies considerably and there are no definite data

on the subject. As respects irrigation on the Laramie

Plains above the Wheatland diversion, the evidence

satisfies us that the return water will certainly more than

counter-balance the loss through evaporation and other-

wise when the period of storage is not more than from

one year to the next.

What has now been said covers the substance of the

evidence, as we regard it, bearing on the available supply

at Woods and in that vicinity, that is to say, the supply

remaining after the recognized Colorado appropriations

are satisfied.

We already have indicated that, as to such a stream as

this, the average flow of all years, high and low, cannot

La ' ,

484 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

be taken as a proper or reasonable measure of what is

available for practical use. What then is the amount

which is available here? According to the general con-

sensus of opinion among practical irrigators and experi-

enced irrigation engineers, the lowest natural flow of the

years is not the test. In practice they proceed on the view

that within limits, financially and physically feasible, a

fairly constant and dependable flow materially in excess

of the lowest may generally be obtained by means of

reservoirs adapted to conserving and equalizing the nat-

ural flow; and we regard this view as reasonable.

But Wyoming takes the position that she should not be

required to provide storage facilities in order that Colo-

rado may obtain a larger amount of water from the com-

mon supply than otherwise would be possible. In a sense

this is true; but not to the extent of requiring that the

lowest natural flow be taken as the test of the available

supply. The question here is not what one State should

do for the other, but how each should exercise her relative

rights in the waters of this interstate stream. Both are in-

terested in the stream and both have great need for the

water. Both subscribe to the doctrine of appropriation,

and by that doctrine rights to water are measured by what

is reasonably required and applied. Both States recog-

nize that conservation within practicable limits is essential

in order that needless waste may be prevented and the

largest feasible use may be secured. This comports with

the all-pervading spirit of the doctrine of appropriation

and takes appropriate heed of the natural necessities out

of which it arose. We think that doctrine lays on each of

these States a duty to exercise her right reasonably and in

a manner calculated to conserve the common supply.

Notwithstanding her present contention, Wyoming has in

fact proceeded on this line, for, as the proof shows, her

appropriators, with her sanction, have provided and have

in service reservoir facilities which are adapted for the

WYOMING v. COLORADO. 485

419. Opinion of the Court.

purpose and reasonably sufficient to meet its require-

ments.

There is one respect, requiring mention, in which Colo-

rado’s situation differs materially from that of Wyoming.

The water to satisfy the Colorado appropriations is, and

in the nature of things must be, diverted in Colorado at

the head of the stream; and because of this those appro-

priations will not be affected by any variation in the

yearly flow, but will receive their full measure of water

in all years. On the other hand, the Wyoming appropri-

ations will receive the water only after it passes down into

that State and must bear whatever of risk is incident to

the variation in the natural flow. Of course, this affords

no reason for underestimating the available supply, but it

does show that to overestimate it will work particular in-

jury to Wyoming.

The lowest established flow was that of 1913. There is

no claim or proof that in any other year the flow fell so

low. Had there been others some proof of it doubtless

would have been presented. This is also true of the very

low flow of 1896. Therefore we think it reasonably may

be assumed that the flow of those years was so exceptional

that it is not likely to recur save at long intervals.

We conclude in view of all the evidence, and of the

several considerations we have stated, that the natural

and varying flow of this stream at Woods, which is after

the recognized Colorado appropriations are satisfied, is

susceptible by means of practicable storage and conserva-

tion of being converted into a fairly constant and depend-

able flow of 170,000 acre-feet per year, but not more.

This we hold to be the available supply at that point after

the recognized Colorado diversions are made. The

amount may seem large, but, considering what may be

accomplished with practicable storage facilities, such as

are already provided, and the use which may be made of

SS ee

486 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

the return water, we are persuaded that the amount, while

closely pressing the outside limit, is not too large.

The problem to be worked out in obtaining a fairly de-

pendable supply in that amount is measurably illustrated

by the following table covering all the years for which the

evidence supplies the requisite data, the flow during the

missing months being fairly estimated.

Variance from

Year. Acre-feet. pe cmneyt average pot all verano ‘one

) errr ri rect 151, 349 —56, 893 —38, 576 —18, 651

errr ee 187, 406 — 20, 836 —2, 519 +17, 406

Bs wae ndadensakens 226, 146 +17, 904 +36, 221 +56, 14€

Ps 54h 0658 605 6cnn 239, 239 +30, 997 +49, 314 +69, 239

BOs os nd cesuencccsss 127, 022 —81, 220 — 62, 903 — 42,978

BEE Secs Kvesecnsicas 270, 074 +61, 831 +80, 149 +100, 074

er 136,765 | —71,477 —53, 160 —33, 235

SS 409,730 | +201, 488 +219, 805 +239, 730

\ ee 267, 105 +58, 863 +77, 180 +97, 105

errr 157, 240 —51, 002 —32, 685 — 12, 760

| ere re se 213, 241 +4, 999 +23, 316 +43, 241

PRS Ss Komacsecwekaee 113, 593 — 94, 649 —76, 332 —56, 047

Average 208,242, including all years.

Average 189,925, including all years but 1899.

It of course is true that the variation in the flow will not

always be just what it was in the years covered by the

table, and yet the data obtained by the gaging and meas-

urements in those years show better than anything else

what reasonably may be expected in the future. We

recognize that the problem which the table is intended to

illustrate is not a simple one and that to work it out will

involve the exercise of both skill and care. But in this it

is not unlike other problems of similar moment. Our be-

lief gathered from all the evidence is that, with the atten-

tion which rightly should be bestowed on a problem of

such moment, it can be successfully solved within the

limits of what is financially and physically practicable.

4

WYOMING v. COLORADO. 487

419. Opinion of the Court.

As to Sand Creek, Colorado’s witness regarded it as a

tributary of the river and estimated its yearly flow at

17,000 acre-feet. The creek rises in Colorado, extends into

the Laramie Plains in Wyoming and discharges into Hut-

ton Lake, a few miles from the river. In exceptional

years—about one in five—the waters of the creek over-

flow the lake for a short period and find their way over the

prairie into the river. Otherwise the river receives no

water from the creek. The proof of this is direct and un-

disputed. The creek is nominally a tributary of the river,

but only that. Besides, its flow does not appear to have

been measured. The witness merely estimated it at what

he thought would be the natural run-off of the adjacent

territory. Other evidence suggests that the estimate is

too high, but this we need not consider. A substantial

part of the flow is diverted, through what is known as the

Divide Ditch, for use in irrigating lands in Colorado, and

the evidence suggests, if it does not establish, that existing

appropriations in the two States take the entire flow. For

these reasons the waters of this creek cannot be regarded

as a factor in this controversy.

After passing Woods, and while traversing the territory

wherein are the Wyoming appropriations with which we

are concerned, the Laramie receives one large and some

very small additions to its waters.

The large addition comes from the Little Laramie, a

stream whose source and entire length are in Wyoming.

Its natural flow is a little more than one-half of that of

the main stream at Woods and is subject to much the same

variations. Part of its flow is used under appropriations

along its course and the remainder passes into the main

stream. Including what is appropriated along its course,

and excluding minor contributions by small creeks after

it gets well away from its headwaters, we think the amount

available for practical use is 93,000 acre-feet per year.

None of the small tributaries, whether of the Laramie

or the Little Laramie, adds much to the available supply.

s

oe

ds Ae rE ay

488 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

Their natural flow is small. As to some it ‘< all used

under old appropriations; as to some it is } artly used

under such appropriations; and as to some ‘t is only

seasonal, the channels being dry much of the; ar. Some

creeks spoken of in Colorado’s evidence as tri’ itaries are

otherwise shown not to be such, but to deliver: .eir waters

into lakes or ponds not connected with either. the prin-

cipal streams. Colorado’s evidence also takc3 into ac-

count some tributaries which discharge into the Laramie

below the points of diversion of all the Wyoming appro-

priations with which we are concerned. One, of which

much is said in the evidence, is the Sybille. It eaches the

Laramie below the diversion for the Wheatla i District

(the lowest diversion we are to consider), but i its course

passes through that district. A small part of its flow is

used in that district and it is not practicable t: use more.

What is used should, for present purposes, be t ated as if

it reached the Laramie above the Wheatlan: diversion.

Wyoming contends that none of these small ributaries,

other than the Sybille, contributes any depend: ‘le amount

to the available supply. We think there is in the aggre-

gate a fairly dependable contribution of 25,0€ ) acre-feet,

but not more.

It results that, in our opinion, the entire s »ply avail-

able for the proposed Colorado appropriati 1 and the

Wyoming appropriations down to and includin~ the diver-

sion for the Wheatland District is 288,000 acre- feet.

In contending for a larger finding, Colorad points to

the issue by Wyoming’s State Engineer of } rmits, so-

called, for appropriations in excess of that ::.ount and

insists that these permits constitute solemn ac: jdications

by that officer that the supply is adequate to c ver them.

But in this the nature of the permits is misap: rehended.

In fact and in law they are not adjudications. but mere

licenses to appropriate, if the requisite amoun. of water

be there. As to many nothing ever is done und-r them by

WYOMING v. COLORADO. 489

419. Opinion of the Court.

the intending appropriators. In such cases there is no ap-

propriation; and even in others the amount of the appro-

priation turns on what is actually done under the permit.

In late years the permits relating to these streams have

contained a provision, saying: “ The records of the State

Engineer’s office show the waters of [the particular

stream] to be largely appropriated. The appropriator

under the permit is hereby notified of this fact, and the

issuance of this permit grants only the right to divert and

use the surplus or waste water of the stream and confers

no rights which will interfere with or impair the use of

water by prior appropriators.” It therefore is plain that

these permits have no such probative force as Colorado

seeks to have attributed to them.

Colorado also comments on the amount of water stored

in Wyoming reservoirs in 1912 and seeks to draw from

this an inference that the available supply was greater

than we have indicated. But the inference is not justi-

fied, and for these reasons: First, a part of what was

stored was dead water, that is, was below the level from

which water could be drawn off and conducted to the

places of use. This is a matter commonly experienced

in the selection and use of reservoir sites. Secondly, the

flow of 1912 was above what could be depended on and

prudence required that a substantial part be carried over

to meet a possible shortage in the succeeding year. And,

thirdly, the evidence shows that in 1912 the storing

process was improvidently carried to a point which in-

fringed the rights of small appropriators who were with-

out storage facilities.

The available supply—the 288,000 acre-feet—is not

sufficient to satisfy the Wyoming appropriations depend-

ent thereon and also the proposed Colorado appropriation,

so it becomes necessary to consider their relative priori-

ties.

There are some existing Colorado appropriations having

priorities entitling them to precedence over many of the

LIAISE ELI PEE

adh Latte ee Tee Te |

490 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

Wyoming appropriations. These recognized Colorado ap-

propriations are, 18,000 acre-feet for what is known as

the Skyline Ditch and 4,250 acre-feet for the irrigation

of that number of acres of native-hay meadows in the

Laramie valley in Colorado, the 4,250 acre-feet being what

Colorado’s chief witness testifies is reasonably required

for the purpose, although a larger amount is claimed in

the State’s answer. These recognized Colorado appro-

priations, aggregating 22,250 acre-feet, are not to be de-

ducted from the 288,000 acre-feet, that being the avail-

able supply after they are satisfied. Nor is Colorado’s

appropriation from Sand Creek to be deducted, that creek,

as we have shown, not being a tributary of the Laramie.

The proposed Colorado appropriation which is in con-

troversy here is spoken of in the evidence as the Laramie-

Poudre tunnel diversion and is part of an irrigation

project known as the Laramie-Poudre project. Colorado

insists that this proposed appropriation takes priority,

by relation, as of August 25, 1902, and Wyoming that the

priority can relate only to the latter part of 1909. The

true date is a matter of importance, because some large

irrigation works were started in Wyoming between the

dates mentioned, were diligently carried to completion,

and are entitled to priorities as of the dates when they

were started.

The Laramie-Poudre project is composed of several

units, originally distinct, which underwent many changes

before they were brought together in a single project. In

its final form the project is intended to divert water by

means of a tunnel from the Laramie River into the Pou-

dre watershed, there to unite that water with water taken

from the Cache la Poudre River and then to convey the

water many miles to the lower part of the Poudre valley,

where it is to be used in reclaiming and irrigating a body

of land containing 125,000 acres. It is a large and am-

bitious project whose several parts, as finally brought

WYOMING v. COLORADO. 491

419. Opinion of the Court.

together, are adjusted to the attainment of that purpose.

The parts were separately conceived, each having a pur-

pose of its own. The project now is intended to draw on

two independent sources of supply, each in a separate

watershed.t The appropriations are necessarily distinct.

Neither adds anything to, nor substracts anything from,

the status of the other. We are concerned with only one

of them.

The proposed tunnel diversion from the Laramie was

conceived as a possibility by Wallace A. Link in 1897 and

was explained by him to Abraham I. Akin in the spring

of 1902. Later in the year they visited the headwaters

of the two streams, looked over the ground, and agreed

that Link’s idea was a good one, that the undertaking was

large and that they were without the means to carry it

through. They concluded to promote the project to-

gether; and, thinking their chances of success would be

improved by it, they also concluded to construct a ditch,

known as the Upper Rawah, from the Laramie valley to

a connection with an existing ditch, called the Skyline,

and to take water through these ditches into the Cache la

Poudre valley and there sell it. By this they hoped to

demonstrate that water was obtainable from that source

and to obtain money to be used in promoting their project.

The Skyline was a fair-sized ditch leading over a low

part of the divide to a branch of the Poudre, and they

* An engineer who had been connected with the work, and was a

witness for the defendants, said: “ This system has two distinct and

independent sources of supply; that from the Laramie River and that

from the Poudre River basin and the tributaries of the South Platte,

and it was so designed that the Poudre Valley Canal could divert

water from the Poudre River and also from the northern tributaries

of the Poudre intercepted by the canal and from the tributaries of

the South Platte as far east as Crow Creek and intercepted by the

canal wherever there was surplus water. We estimated that the

amount of water available outside of the Laramie River source would

be between 80,000 and 100,000 acre-feet per annum as an average.”

492 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

arranged with its owner for the carriage, on a percentage

basis, of water from their ditch when constructed. They

also conceived that the ditch could be used advantageously

in collecting and carrying water to be sent through the

tunnel, if and when the tunnel diversion was effected. In

1902, beginning August 25, they surveyed the line of the

Rawah and in October of that year filed a statement of

claim under it in the State Engineer’s office. In the state-

ment they said nothing about a tunnel diversion and

made claim only to the amount of water expected to be

carried through the Rawah and to the use of certain lakes

or natural reservoirs for storage purposes. No work was

done on the ditch that year. In 1903 they cleared some

of the land over which it was to run, but did no excavat-

ing. In 1904 they constructed 6,000 feet of the ditch

and did more clearing. No work was done on it in 1905

or 1906. Further work was done in 1907 and some wash-

outs were repaired in 1908. That was the last work on

the Rawah. Much more than one-half of the ditch was

left unconstructed. No water was delivered through it

to the Skyline, nor was any sold or used. Nothing ap-

pears to have been done with the lakes or natural reser-

voirs.

In 1903 Link and Akin gave to each of three others

a one-fifth share in their project, in return for which the

new partners were to carry on solicitations to get capital-

ists interested and to raise money. The results of the

solicitations were disappointing, but some investors were

brought in and became concerned about the preliminary

plans. Differences of opinion arose and had to be dealt

with. The plans were examined and reéxamined, alter-

native modes and places of diversion were considered and

investigated, particular features were eliminated and

others added, and in 1909, but not before, the project

was definitely brought into its present form. A short

reference to some of the details will serve to make this

plain.

WYOMING v. COLORADO. 493

419. Opinion of the Court.

In the Upper Rawah filing of October, 1902, nothing

was said about the proposed tunnel diversion, but a claim

was made to the use of certain lakes or natural reservoirs

described as having an aggregate capacity of 325,000,000

cubic feet. The tunnel diversion was merely a mental

conception until 1904. In March of that year a survey

was made of a tunnel site, a ditch from the west fork of the

Laramie to the east fork, and a channel reservoir on the

east fork above the tunnel site; and in May following a

statement of claim under them was filed, in which the

estimated cost of the tunnel and ditch was given as

$189,200 and that of the reservoir as $20,000. Later in

1904 a survey was made of a tunnel site, three collecting

ditches and two pipe lines, and in October of that year a

statement of claim under them was filed, in which the

estimated cost of the tunnel, ditches and pipe lines was

given as $375,000. The location and dimensions of the

tunnel in the second survey differed from those in the first.

The difference was not pronounced, and yet was a real

change. In September, 1906, another statement of claim

was filed covering the Upper Rawah Ditch, the lakes

connected therewith and the tunnel. This statement de-

clared that the lakes were to be so enlarged that they

would have an aggregate capacity of 1,250,000,000 cubic

feet, instead of 325,000,000 as stated in the filing of 1902;

and it again changed the location and dimensions of the

tunnel,—this time more than before.

In 1905 and 1906 surveys were made to find a route

for an open canal from the Laramie around the moun-

tains, through a portion of Wyoming and back to Colo-

rado, which would avoid the construction of a tunnel and

the maintenance of ditches in the higher mountain levels;

and in 1908 a statement of claim covering such a canal

was filed, as was also a claim covering a large channel

reservoir nine miles down the stream from the tunnel site.

The estimated cost of the canal was given as $1,000,000

| |

x ASA DAE A ON e R

494 OCTOBER TERM, 1921.

Opinion of the Court. 259 U.S.

and that of the reservoir as $200,000. The plan evi-

denced by these filings was that of impounding the water

in the reservoir and liberating it in an equalized flow into

the canal, which was to carry it into the Poudre water-

shed without the aid of a tunnel. Late in 1908 and in

the fore part of 1909 another survey along the same gen-

eral line and with the same purpose was made at a cost of

$15,000. Early in 1909 a statement of claim was filed

covering a proposed reservoir near the tunnel site, the

cost being estimated at $200,000.

In 1907 the Laramie-Poudre Reservoirs and Irrigation

Company succeeded to whatever rights the promoters had

acquired up to that time, and all subsequent surveys, in-

vestigations and filings were made by it. In April, 1909,

the Greeley-Poudre Irrigation District, within which the

water is intended to be used, was organized. At that time

sufficient capital had not been obtained to carry the proj-

ect through in any form. In September following the

irrigation company and the irrigation district entered into

a tentative contract, under which the company was to

consummate the project in its present form, and, after

doing the construction work, was to transfer the property

to the district. Payment therefor was to be made in in-

terest-bearing bonds of the district. By a vote taken the

next month, the district ratified the contract and author-

ized the issue of the bonds. About the last of that month

the work of boring the tunnel and making the diversion

was begun.

It is manifest from this historical outline that the ques-

tion of whether, and also how, this proposed appropria-

tion should be made remained an open one until the con-

tract with the irrigation district was made and ratified in

1909. Up to that time the whole subject was at large.

There was no fixed or definite plan. It was all in an in-

ceptive and formative stage,— investigations being almost

constantly in progress to determine its feasibility and

WYOMING v. COLORADO. 495

419. Opinion of the Court.

whether changes and alternatives should be adopted rather

than the primary conception. It had not reached a point

where there was a fixed and definite purpose to take it up

and carry it through. An appropriation does not take

priority by relation as of a time anterior to the existence

of such a purpose.

It no doubt is true that the original promoters intended

all along to make a large appropriation from the Laramie

by some means, provided the requisite capital could be

obtained, but this is an altogether inadequate basis for

applying the doctrine of relation.

No separate appropriation was effected by what was

done on the Upper Rawah Ditch. The purpose to use it

in connection with the Skyline was not carried out, but

abandoned. This, as Link testified, was its “ principal ”

purpose. The purpose to make it an accessory of the large

project was secondary and contingent. Therefore the

work on it cannot be taken as affecting or tolling back the

priority of that project.

Actual work in making the tunnel diversion was begun

as before shown, about the last of October, 1909. There-

after it was prosecuted with much diligence and in 1911,

when this suit was brought, it had been carried so nearly

to a state of completion that the assumption reasonably

may be indulged that, but for the suit, the appropriation

soon would have been perfected. We conclude that the

appropriation should be accorded a priority by relation

as of the latter part of October, 1909, when the work was

begun.

Applying a like rule to the Wyoming appropriations,

several of them must be treated as relating to later dates,

and therefore as being junior to that appropriation. Some

of the projects in that State are founded on a plurality of

appropriations, a part of which are senior and a part

junior to that one.

The evidence shows that the Wyoming appropriations

having priorities senior to the one in Colorado, and which

496 OCTOBER TERM, 1921.

Final Decree. 259 U.S.

are dependent on the available supply before named, cover

181,500 acres of land and that the amount of water appro-

priated and reasonably required for the irrigation of

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