The court here points out three classes of parties to a bill in equity. They are: 1. Formal parties. 2. Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed necessary parties; but if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties. 3. Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience
58 U.S. 130 (1854)
17 How. 130
WILLIAM B. SHIELDS AND OTHERS, APPELLANTS,
ROBERT R. BARROW.
Supreme Court of United States.
131*131 It was argued by Mr. Benjamin, for the appellants, and by Mr. Janin, for the appellee.
137*137 Mr. Justice CURTIS delivered the opinion of the court.
To make intelligible the questions decided in this case, an outline of some part of its complicated proceedings must be given. They were begun by a bill in equity, filed in the circuit court of the United States for the eastern district of Louisiana, on the 19th of December, 1842, by Robert R. Barrow, a citizen of the State of Louisiana, against Mrs. Victoire Shields, and by amendment against William Bisland, citizens of the State of Mississippi. The bill stated, that in July, 1836, the complainant sold certain plantations and slaves in Louisiana, to one Thomas R. Shields, who was a citizen of Louisiana, for the sum 138*138 of $227,000, payable by instalments, the last of which would fall due in March, 1844.
That negotiable paper was given for the consideration money, and from time to time $107,000 was paid. That the residue of the notes being unpaid, and some of them protested for non-payment, a judgment was obtained against Thomas R. Shields, the purchaser, for a part of the purchase-money, and proceedings instituted by attachment against Thomas R. Shields and William Bisland, one of his indorsers, for other parts of the purchase-money then due and unpaid. In this condition of things, an agreement of compromise and settlement was made, on the 9th day of November, 1842, between the complainant, of the first part, Thomas R. Shields, the purchaser, of the second part, and the six indorsers on the notes given by Thomas R. Shields, of the third part. Of these six indorsers, Mrs. Shields and Bisland, the defendants, were two. By this new contract the complainant was to receive back the property sold, retain the $107,000 already paid, and the six indorsers executed their notes, payable to the complainant, amounting to thirty-two thousand dollars, in the manner and proportions following, as stated in the bill: —
“The said William Bisland pays ten thousand dollars, in two equal instalments, the first in March next, and the other in March following, for which sum the said William Bisland made his two promissory notes, indorsed by John P. Watson, and payable at the office of the Louisiana Bank in New Orleans. The said R.G. Ellis $6,966.66, on two notes indorsed by William Bisland. The said George S. Guion, $2,750, on two notes indorsed by Van P. Winder. The said Van P. Winder, $2,750, on two notes indorsed by George S. Guion. The said William B. Shields, $4,766,66, on two notes indorsed by Mrs. Victoire Shields; and finally, Mrs. Victoire Shields the same amount on two notes payable as aforesaid at the office of the Louisiana Bank, in New Orleans.”
The complainant was to release the purchaser, Thomas R. Shields, and his indorsers, from all their liabilities then outstanding, and was to dismiss the attachment suit then pending against Thomas R. Shields and Bisland.
The bill further alleges, that though the notes were given, and the complainant went into possession under the agreement of compromise, the agreement ought to be rescinded, and the complainant restored to his original rights under the contract of sale; and it alleges various reasons therefor, which it is not necessary in this connection to state. It concludes with a prayer that the act of compromise may be declared to have been improperly procured, and may be annulled and set aside, 139*139 and that the defendants may be decreed to pay such of the notes, bearing their indorsement, as may fall due during the progress of the suit, and for general relief.
Such being the scope of this bill and its parties, it is perfectly clear that the circuit court of the United States for Louisiana, could not make any decree thereon. The contract of compromise was one entire subject, and from its nature could not be rescinded, so far as respected two of the parties to it, and allowed to stand as to the others. Thomas R. Shields, the principal, and four out of six of his indorsers, being citizens of Louisiana, could not be made defendants in this suit; yet each of them was an indispensable party to a bill for the rescission of the contract. Neither the act of congress of February 28, 1839, (5 Stat. at Large, 321, § 1,) nor the 47th rule for the equity practice of the circuit courts of the United States, enables a circuit court to make a decree in equity, in the absence of an indispensable party, whose rights must necessarily be affected by such decree.
In Russell v. Clarke’s Executors, 7 Cranch, 98, this court said: “The incapacity imposed on the circuit court to proceed against any person residing within the United States, but not within the district for which the court may be holden, would certainly justify them in dispensing with parties merely formal. Perhaps in cases where the real merits of the cause may be determined without essentially affecting the interests of absent persons, it may be the duty of the court to decree, as between the parties before them. But in this case, the assignees of Robert Murray and Co. are so essential to the merits of the question, and may be so much affected by the decree, that the court cannot proceed to a final decision of the cause till they are parties.”
The court here points out three classes of parties to a bill in equity. They are: 1. Formal parties. 2. Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed necessary parties; but if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties. 3. Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.
140*140 A bill to rescind a contract affords an example of this kind. For, if only a part of those interested in the contract are before the court, a decree of rescission must either destroy the rights of those who are absent, or leave the contract in full force as respects them; while it is set aside, and the contracting parties restored to their former condition, as to the others. We do not say that no case can arise in which this may be done; but it must be a case in which the rights of those before the court are completely separable from the rights of those absent, otherwise the latter are indispensable parties.
Now it will be perceived, that in Russell v. Clarke’s Executors, this court, after considering the embarrassments which attend the exercise of the equity jurisdiction of the circuit courts of the United States, advanced as far as this: They declared that formal parties may be dispensed with when they cannot be reached; that persons having rights which must be affected by a decree, cannot be dispensed with; and they express a doubt concerning the other class of parties. This doubt is solved in favor of the jurisdiction in subsequent cases, but without infringing upon what was held in Russell v. Clarke’s Executors, concerning the incapacity of the court to give relief, when that relief necessarily involves the rights of absent persons. As to formal or unnecessary parties, see Wormley v. Wormley, 8 Wheat. 451; Carneal v. Banks, 10 Ib. 188; Vattier v. Hinde, 7 Pet. 266. As to parties having a substantial interest, but not so connected with the controversy that their joinder is indispensable, see Cameron v. M’Roberts, 3 Wheat. 591; Osborn v. The Bank of the United States, 9 Ib. 738; Harding v. Handy, 11 Ib. 132. As to parties having an interest which is inseparable from the interests of those before the court, and who are, therefore, indispensable parties, see Cameron v. M’Roberts, 2 Ib. 571; Mallow v. Hinde, 12 Ib. 197.
In Cameron v. M’Roberts, where the citizenship of the other defendants than Cameron did not appear on the record, this court certified: “If a joint interest vested in Cameron and the other defendants, the court had no jurisdiction over the cause. If a distinct interest vested in Cameron, so that substantial justice (so far as he was interested) could be done without affecting the other defendants, the jurisdiction of the court might be exercised as to him alone.” And the grounds of this distinction are explained in Mallow v. Hinde, 12 Wheat. 196, 198.
Such was the state of the laws on this subject when the act of congress of February 28, 1839, (5 Stat. at Large, 321,) was passed, and the 47th rule, for the equity practice of the circuit court of the United States, was made by this court.
The first section of that statute enacts: That when, in any 141*141 suit, at law or in equity, commenced in any court of the United States, there shall be several defendants, any one or more of whom shall not be inhabitants of, or found within, the district where the suit is brought, or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdiction, and proceed to the trial and adjudication of such suit between the parties who may be properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process, or not voluntarily appearing to answer; and the nonjoinder of parties who are not so inhabitants, or found within the district, shall constitute no matter of abatement or other objection to said suit.”
This act relates solely to the nonjoinder of persons who are not within the reach of the process of the court. It does not affect any case where persons, having an interest, are not joined because their citizenship is such that their joinder would defeat the jurisdiction; and, so far as it touches suits in equity, we understand it to be no more than a legislative affirmance of the rule previously established by the cases of Cameron v. M’Roberts, 3 Wheat. 591; Osborn v. The Bank of the United States, 9 Ib. 738; and Harding v. Handy, 11 Ib. 132. For this court had already there decided, that the nonjoinder of a party, who could not be served with process, would not defeat the jurisdiction. The act says it shall be lawful for the court to entertain jurisdiction; but, as is observed by this court, in Mallow v. Hinde, 12 Wheat. 198, when speaking of a case where an indispensable party was not before the court, “we do not put this case upon the ground of jurisdiction, but upon a much broader ground, which must equally apply to all courts of equity, whatever may be their structure as to jurisdiction; we put it on the ground that no court can adjudicate directly upon a person’s right, without the party being either actually or constructively before the court.”
So that, while this act removed any difficulty as to jurisdiction, between competent parties, regularly served with process, it does not attempt to displace that principle of jurisprudence on which the court rested the case last mentioned. And the 47th rule is only a declaration, for the government of practitioners and courts, of the effect of this act of congress, and of the previous decisions of the court, on the subject of that rule. Hagan v. Walker, 14 How. 36. It remains true, notwithstanding the act of congress and the 47th rule, that a circuit court can make no decree affecting the rights of an absent person, and can make no decree between the parties before it, which so far involves or depends upon the rights of an absent person, that complete and final justice cannot be done between the parties to the suit without 142*142 affecting those rights. To use the language of this court, in Elmendorf v. Taylor, 10 Wheat. 167: “If the case may be completely decided, as between the litigant parties, the circumstance that an interest exists in some other person, whom the process of the court cannot reach, — as if such party be a resident of another State, — ought not to prevent a decree upon its merits.” But if the case cannot be thus completely decided, the court should make no decree.
We have thought it proper to make these observations upon the effect of the act of congress and of the 47th rule of this court, because they seem to have been misunderstood, and misapplied in this case: it being clear that the circuit court could make no decree, as between the parties originally before it, so as to do complete and final justice between them without affecting the rights of absent persons, and that the original bill ought to have been dismissed.
But, unfortunately, this course was not taken. The two defendants, Mrs. Shields and Bisland, answered, denied the allegations of fraud, and insisted that, so far as they were concerned, the compromise was made in good faith, and they were ready to perform their parts of it, according to their respective stipulations.
On the same day that Bisland filed his answer, he filed also a cross-bill against Barrow, praying for a specific performance of the contract of compromise.
But this bill also was fatally defective, as respects parties. Thomas R. Shields, and his other five indorsers, had such a direct and immediate interest in the contract of compromise, and that interest was so entire and indivisible, that, without their presence, no decree on the subject could be made. In Morgan’s Heirs v. Morgan, 2 Wheat. 290, a bill was brought by the heirs of a deceased vendor, to compel the specific performance of a contract to purchase lands. It was objected that the deceased had a child who was not made a party. Chief Justice Marshall said: “It is unquestionable that all the coheirs of the deceased ought to be parties to this suit, either plaintiff or defendant, and a specific performance ought not to be decreed until they shall be all before the court.”
The next step in the pleadings was, that Barrow filed what he calls a petition, in which he recites summarily what had previously been done in the cause, and declares himself willing to have the agreement of compromise specifically performed, and prays for leave to amend his bill, by making Thomas R. Shields a party, alleging he had become a citizen of Mississippi, and by inserting the following words: —
“But if this honorable court should be of opinion, that the 143*143 said agreement of November 9, 1842, is valid, and should not be set aside; and if the said defendant shall acknowledge its validity and binding force, then the orator prays that its specific performance may be decreed, according to its true purport and tenor, as herein above explained; and he offers to do and perform on his part all the acts which, by said agreement, he is bound to perform; and he prays that said defendants may be decreed to pay to him the value of the mule, negro, clothing, and flat-boats, which were taken away from the said plantation as aforesaid; that they be decreed to relieve the said Liza, and the other above-mentioned property, from the judicial mortgages mentioned in this bill, and from the tacit mortgage of the minor children of the said Thomas R. Shields; that the said Thomas R. Shields, when made a party to this suit, both in his individual capacity and as tutor of his aforesaid minor children, may be ordered to execute a proper and legal reconveyance to your orator, of the above-described property, or that any other order may be made which, to this honorable court, may appear meet and fit, for the purpose of again vesting in the orator a good and valid title to the aforesaid property; that the notes described in said act of November 9, 1842, and amounting to $32,000, may be surrendered to your orator; that the defendants may be decreed to pay to your orator the amount of such of the said last-mentioned notes as may have been drawn by them, and also such of said notes as may be indorsed by them, and which may have been protested, and of the protest of which they may have been duly notified before the final decree of this honorable court, the whole with interest from the day of protest; and that said defendants may furthermore be decreed to pay the current expenses of the said plantation during the year anterior to said November 9, 1842, and to refund to your orator any amount and expenses which he may have been, or may yet be, compelled to pay on account of privileged claims incumbering said plantation on the day of said act.”
The court allowed the above amendment. So that the bill thereafter presented not only two aspects, but two diametrically opposite prayers for relief, resting upon necessarily inconsistent cases; the one being that the court would declare the contract rescinded, for imposition and other causes, and the other, that the court would declare it so free from all exception as to be entitled to its aid by a decree for specific performance.
Whether this amendment be considered as leaving the bill in this condition, or as amounting to an abandonment of the original bill for a rescission of the contract, and the substitution of a new bill for a specific performance, it was equally objectionable.
144*144 A bill may be originally framed with a double aspect, or may be so amended as to be of that character. But the alternative case stated must be the foundation for precisely the same relief; and it would produce inextricable confusion if the plaintiff were allowed to do what was attempted here. Story’s Eq. Pl. 212, 213; Welford’s Eq. Pl. 88; Edwards v. Edwards, Jacob’s R. 335.
Nor is a complainant at liberty to abandon the entire case made by his bill, and make a new and different case by way of amendment. We apprehend that the true rule on this subject is laid down by the vice-chancellor, in Verplanck v. The Mercantile Ins. Co. 1 Edwards Ch. R. 46. Under the privilege of amending, a party is not to be permitted to make a new bill. Amendments can only be allowed when the bill is found defective in proper parties, in its prayer for relief, or in the omission or mistake of some fact or circumstance connected with the substance of the case, but not forming the substance itself, or for putting in issue new matter to meet allegations in the answer. See also the authorities there referred to, and Story’s Eq. Pl. 884.
We think sound reasons can be given for not allowing the rules for the practice of the circuit courts respecting amendments, to be extended beyond this; though doubtless much liberality should be shown in acting within it, taking care always to protect the rights of the opposite party. See Mavor v. Dry, 2 Sim. and Stu. 113.
To strike out the entire substance and prayer of a bill, and insert a new case by way of amendment, leaves the record unnecessarily incumbered with the original proceedings, increases expenses, and complicates the suit; it is far better to require the complainant to begin anew.
To insert a wholly different case is not properly an amendment, and should not be considered within the rules on that subject.
After this change had been made in the original bill, and Barrow had answered the cross-bill of Bisland, the next step taken in the cause, respecting the pleadings and parties, was the entry of the following order: —
“The motion of the complainant for the delivery of the notes of George S. Guion and Van P. Winder, which have been, by order of the court, delivered into the court, to abide its further order, came on to be heard; and having been fully argued, and it appearing to the court that all the parties to the second contract set up in the complainant’s bill and in the cross-bill of the defendant, Bisland, are not before the court; and it also appearing to the court that the said defendants, Shields and Bisland, are citizens of the State of Mississippi, and that all the 145*145 other parties interested in the execution of the said second contract, are citizens of the State of Louisiana, it is therefore ordered, that unless the said Shields and Bisland do, on or before the first Monday in August next, file their cross-bill, setting up and praying a specific execution of said contract, and make all the parties to the second contract, set up in the complainant’s bill and residing in Louisiana, defendants, that the complainant, Barrow, shall be at liberty to proceed upon his bill of complaint for a specific execution of the original contract between the parties, and for the rescission of the said second contract against such of the parties residing in the State of Mississippi as may fail to comply with this order.”
The validity of this order cannot be maintained, and nothing done in consequence of it can be allowed any effect in this court.
It is apparent that, if it were in the power of a circuit court of the United States to make and enforce orders like this, both the article of the constitution respecting the judicial power, and the act of congress conferring jurisdiction on the circuit courts, would be practically disregarded in a most important particular. For in all suits in equity it would only be necessary that a citizen of one State should be found on one side, and a citizen of another State on the other, to enable the court to force into the cause all other persons, either citizens or aliens. No such power exists; and it is only necessary to consider the nature of a cross-bill, to see that it cannot be made an instrument for any such end. “A cross-bill, ex vi terminorum, implies a bill brought by a defendant against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill.” Story’s Eq. Pl. § 389; 3 Dan Ch. Pr. 1742.
New parties cannot be introduced into a cause by a cross-bill. If the plaintiff desires to make new parties, he amends his bill, and makes them. If the interest of the defendant requires their presence, he takes the objection of nonjoinder, and the complainant is forced to amend, or his bill is dismissed. If, at the hearing, the court finds that an indispensable party is not on the record, it refuses to proceed. These remedies cover the whole subject, and a cross-bill to make new parties is not only improper and irregular, but wholly unnecessary.
When the defendants, Mrs. Shields and Bisland, had complied with this order of the court, and filed their cross-bill, as it was called, against the other indorsers and Thomas R. Shields, and they had come in, as they did, what was their relation to the cause? They surely were not plaintiffs in it. If they were defendants the court had not jurisdiction, for they, as well as 146*146 the complainant, were citizens of Louisiana. In truth, they were not parties to the original bill; they were merely defendants to the cross-bill. They had no right to answer the original bill, or make defence against it, and of course no decree could be made against them upon that bill.
We do not find it necessary to pursue further an examination in detail, of the complicated maze of pleas, demurrers, answers, amendments, and interlocutory orders, which followed the filing of this, so called, cross-bill. It is enough to say that the defendants to it were never lawfully before the court; that the court never obtained jurisdiction over those of the parties who were citizens of the State of Louisiana, and amongst them was Thomas R. Shields, who, though made a party to the original bill by amendment, as a citizen of Mississippi, pleaded that he was a citizen of Louisiana, and was thereupon stricken out of the original bill, and was only a defendant to the cross-bill; that it never had lawfully before it such parties as were indispensable to a decree for the specific performance of the contract of compromise, or for the rescission thereof; and lastly, that when it proceeded finally to make a decree condemning certain of the defendants, who were indorsers for Thomas R. Shields, to pay the notes given on the compromise, it gave relief, for which there was a plain, adequate, and complete remedy at law, and which was wholly aside from the prayer of the bill for a specific execution of the contract of compromise, which was fully executed in this particular when the notes were given and deposited in the hands of the notary.
This court regrets that a litigation, which has now lasted upwards of thirteen years, should have proved wholly fruitless; but it is under the necessity of reversing the decree of the circuit court, ordering the cause to be remanded, and the original and cross-bills dismissed.
This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court that the decree of the said circuit court in this cause be and the same is hereby reversed with costs, and that this cause be and the same is hereby remanded to the said circuit court, with directions to that court to dismiss the original and cross-bills in this cause.
KANSAS V. COLORADO, 206 U. S. 46 (1907)
In 1909, in Kansas City vs Colorado (206 U.S. 46), the court clearly recognized the three “sovereigns” in the United states as the federal government, the state government and We The People
Full Text of Case
U.S. Supreme Court
Kansas v. Colorado, 206 U.S. 46 (1907)
Kansas v. Colorado
No. 3, Original
Argued December, 17-20, 1906
Decided May 13, 1907
206 U.S. 46
Kansas having brought in this Court an original suit to restrain Colorado and certain corporations organized under its laws from diverting the water of the Arkansas River for the irrigation of lands in Colorado, thereby, as alleged, preventing the natural and customary flow of the river into Kansas and through its territory, the United States filed an intervening petition claiming a right to control the waters of the river to aid in the reclamation of arid lands. It was not claimed that the diversion of the waters tended to diminish the navigability of the river.
The government of the United States is one of enumerated powers; that it has no inherent powers of sovereignty; that the enumeration of the powers granted is to be found in the Constitution of the United States, and in that alone; that the manifest purpose of the Tenth Amendment to the Constitution is to put beyond dispute the proposition that all powers not granted are reserved to the people, and that if, in the changes of the years, further powers ought to be possessed by Congress, they must be obtained by a new grant from the people. While Congress has general legislative jurisdiction over the territories, and may control the flow of waters in their streams, it has no power to control a like flow within the limits of a state except to preserve or improve the navigability of the stream; that the full control over those waters is, subject to the exception named, vested in the state. Hence, the intervening petition of the United States is dismissed, without prejudice to any action which it may see fit to take in respect to the use of the water for maintaining or improving the navigability of the river.
The controversy between the parties plaintiff and defendant is one of a justiciable nature. By the Constitution, the entire judicial power of the United States is vested in its courts, specifically included therein being a grant to the Supreme Court of jurisdiction over controversies between two or more states.
In a qualified sense and to a limited extent, the separate states are sovereign and independent, and the relations between them partake something of the nature of international law. This Court in appropriate cases enforces the principles of that law, and in addition, by its decisions of controversies between two or more states, is constructing what may not improperly be called a body of interstate law.
Page 206 U. S. 47
In a suit brought by a state which recognizes the right of riparian proprietors to the use of flowing waters for purposes of irrigation, subject to the condition of an equitable apportionment, against a state which affirms a public right in flowing waters, it is not unreasonable to enforce against the plaintiff its own local rule.
While from the testimony it is apparent that the diversion of the waters of the Arkansas River by Colorado for purposes of irrigation does diminish the volume of water flowing into Kansas, yet it does not destroy the entire flow. The benefit to Colorado in the reclamation of arid lands has been great, and ought not lightly to be destroyed.
The detriment to Kansas by the diminution of the flow of the water, while substantial, is not so great as to make the appropriation of the part of the water by Colorado an inequitable apportionment between the two states.
While a right to present relief is not proved, and this suit is dismissed, it is dismissed without prejudice to the right of Kansas to initiate new proceedings whenever it shall appear that, through a material increase in the depletion of the waters of the Arkansas River by the defendants, the substantial interests of Kansas are being injured to the extent of destroying the equitable apportionment of benefits between the two states.
On May 20, 1901, pursuant to a resolution passed by the Legislature of Kansas (Kan.Laws 1901, c. 425), and upon leave obtained, the State of Kansas filed its bill in equity in this Court against the State of Colorado. To this bill the defendant demurred. After argument on the demurrer, this Court held that the case ought not to be disposed of on the mere averments of the bill, and therefore overruled the demurrer without prejudice to any question defendant might present. Leave was also given to answer. 185 U. S. 185 U.S. 125. In delivering the opinion of the Court, the CHIEF JUSTICE disclosed in the following words the general character of the controversy, and the conclusions arrived at (p. 185 U. S. 145):
“The gravamen of the bill is that the State of Colorado, acting directly herself as well as through private persons thereto licensed, is depriving and threatening to deprive the State of Kansas and its inhabitants of all the water heretofore accustomed to flow in the Arkansas River through its channel on the surface, and through a subterranean course across the State of Kansas; that this is threatened not only by the impounding and the use of the water at the river’s source, but as it flows
Page 206 U. S. 48
after reaching the river. Injury, it is averred, is being, and would be, thereby inflicted on the State of Kansas as an individual owner, and on all the inhabitants of the state, and especially on the inhabitants of that part of the state lying in the Arkansas Valley. The injury is asserted to be threatened, and as being wrought, in respect of lands located on the banks of the river, lands lying on the line of a subterranean flow, and lands lying some distance from the river, either above or below ground, but dependent on the river for a supply of water. And it is insisted that Colorado, in doing this, is violating the fundamental principle that one must use his own so as not to destroy the legal rights of another.”
“The State of Kansas appeals to the rule of the common law that owners of lands on the banks of a river are entitled to the continual flow of the stream, and while she concedes that this rule has been modified in the Western states so that flowing water may be appropriated to mining purposes and for the reclamation of arid lands, and the doctrine of prior appropriation obtains, yet she says that that modification has not gone so far as to justify the destruction of the rights of other states and their inhabitants altogether, and that the acts of Congress of 1866 and subsequently, while recognizing the prior appropriation of water as in contravention of the common law rule as to a continuous flow, have not attempted to recognize it as rightful to that extent. In other words, Kansas contends that Colorado cannot absolutely destroy her rights, and seeks some mode of accommodation as between them, while she further insists that she occupies, for reasons given, the position of a prior appropriator herself, if put to that contention as between her and Colorado.”
“Sitting, as it were, as an international as well as a domestic tribunal, we apply federal law, state law, and international law, as the exigencies of the particular case may demand, and we are unwilling, in this case, to proceed on the mere technical admissions made by the demurrer. Nor do we regard it as necessary, whatever imperfections a close analysis of the pending
Page 206 U. S. 49
bill may disclose, to compel its amendment at this stage of the litigation. We think proof should be made as to whether Colorado is herself actually threatening to wholly exhaust the flow of the Arkansas River in Kansas; whether what is described in the bill as the ‘underflow’ is a subterranean stream flowing in a known and defined channel, and not merely water percolating through the strata below; whether certain persons, firms, and corporations in Colorado must be made parties hereto; what lands in Kansas are actually situated on the banks of the river, and what, either in Colorado or Kansas, are absolutely dependent on water therefrom; the extent of the watershed or the drainage area of the Arkansas River; the possibilities of the maintenance of a sustained flow through the control of flood waters — in short, the circumstances a variation in which might induce the court to either grant, modify, or deny the relief sought or any part thereof.”
On August 17, 1903, Kansas filed an amended bill, naming as defendants Colorado and quite a number of corporations, who were charged to be engaged in depleting the flow of water in the Arkansas River. Colorado and several of the corporations answered. For reasons which will be apparent from the opinion, the defenses of these corporations will not be considered apart from those of Colorado. On March 21, 1904, the United States, upon leave, filed its petition of intervention. The issue between these several parties having been perfected by replications, a commissioner was appointed to take evidence, and, after that had been taken and abstracts prepared, counsel for the respective parties were heard in argument, and upon the pleadings and testimony, the case was submitted.
In order that the issue between the three principal parties, Kansas, Colorado, and the United States, may be fully disclosed — although by so doing we prolong considerably this opinion — we quote abstracts of the pleadings and statements thereof made by the respective counsel. Counsel for Kansas say:
Page 206 U. S. 50
“The bill of complaint alleges that the State of Kansas was admitted into the Union on January 29, 1861, that the State of Colorado was admitted on August 1, 1876, and that the other defendants are corporations organized, chartered, and doing business in the State of Colorado; that the Arkansas River rises in the Rocky mountains, in the State of Colorado, and, flowing in a southeasterly direction for a distance of about 280 miles, crosses the boundary into the State of Kansas; that the river then flows in an easterly and southeasterly direction through the State of Kansas for a distance of about 300 miles, then through Oklahoma, Indian Territory, and Arkansas, on its way to the sea. Through the State of Kansas the Arkansas valley is a level plain but a few feet above the normal level of the river, and is from two to twenty-five miles in width. Back to the foothills on either side there are bottomlands which are saturated and sub-irrigated by the underflow from the river, and are fertile and productive almost beyond comparison. The Arkansas River is a meandered stream through the State of Kansas, and under the laws and departmental rules and regulations of the United States it is a navigable river through the State of Kansas, and was in fact navigable and navigated from the City of Wichita south to its mouth, and that the complainant is the owner of the bed of the stream between the meandered lines in trust for the people of the state; that the complainant is the owner of two tracts of land bordering upon the river, one at Hutchinson and one at Dodge City, upon which state institutions are maintained — one as a reform school and the other as a soldiers’ home. That when the State of Kansas was admitted into the Union, it became the owner, for school purposes, of sections 16 and 36 of each congressional township, of which the complainant still owns many thousand acres, much of which borders on the Arkansas River. That by act of Congress of March 3, 1863, the complainant became the owner of each odd-numbered section of land in the Arkansas Valley, and has since conveyed the whole of this land for the purposes specified. That, by the year 1868,
Page 206 U. S. 51
the land in the Arkansas Valley began to be taken by actual settlers, and by the year 1875, practically all the bottom lands in the east or lower half of the valley were entered and settled, and title obtained from the United States or the State of Kansas, and by the year 1882, the west or upper half of the valley was so entered and settled and like titles obtained. By the year 1873, a railroad was built through the entire length of the valley, and immediately after their settlement, these bottom lands were extensively cultivated, large crops of agricultural products were raised, towns and cities sprang up, population rapidly increased, and by the year 1883, practically all the bottom lands of the Arkansas Valley were in a state of successful and prosperous cultivation; that the waters of the Arkansas River furnished the foundation for this prosperity. These waters furnished a wholesome and ample supply for domestic purposes, for the watering of stock, for power for operating mills and factories, for saturating and sub-irrigating the bottom lands back to the uplands on either side of the river, so that crops thereon were not only bounteous, but practically certain, and in the western portion of the valley these waters were appropriated and used for surface irrigation, to supplant the scanty rainfall in that region. That, by reason of these uses of the waters of the Arkansas River, and the almost unvarying water level beneath these bottom lands being near the surface, the lands in the Arkansas Valley in the State of Kansas were of great and permanent value to the owners and settlers thereon, and those upon the tax rolls of the State of Kansas yielded a large and increasing revenue to the complainant for state purposes.”
“That after the lands in the Arkansas Valley had been settled and raised to a high State of cultivation, all the bottom lands in the valley being riparian lands and directly affected by the presence and flow of the river, and after parts of the flow of the river had been used for manufacturing and milling purposes, and after the riparian lands had been largely and extensively irrigated in the valley of the river in the western portion of
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Kansas, and after portions of the land so belonging to the complainant had been sold and conveyed, the State of Colorado and other defendants began systematically appropriating and diverting the waters of the Arkansas River, in the State of Colorado, between Canon City and the Kansas state line, for the purpose of irrigating dry, barren, arid, nonriparian, and nonsaturated lands lying on either side of the river, and often many miles therefrom, and by the year 1891, all the natural and normal waters and a large portion of the flood waters of the Arkansas River were so appropriated and diverted and actually applied to these dry, barren, arid, nonriparian, and nonsaturated lands in the State of Colorado, said diversions increasing from year to year, as their means of diversion became more complete and perfect, so the average flow of the river was greatly and permanently diminished and the normal flow of the river, exclusive of floods, was wholly and permanently destroyed, the navigability of the river where navigable before has been ruined, the power for manufacturing purposes greatly diminished, the surface of the underflow beneath the bottom lands has been lowered about five feet, and the water for the irrigation ditches in the western part of Kansas has been entirely cut off. The loss sustained by the complainant and its citizens has been great and incalculable. The benefits of river navigation are gone; the cheap water power has been replaced by the costly steam power; the productiveness and value of the bottom lands have been greatly diminished; the irrigation ditches are left dry and the lands uncultivated, and the revenues of the State of Kansas and its municipalities have been materially decreased. Against this loss and injury the complainant prays the assistance of this Court.”
In the brief of counsel for Colorado, it is said:
“The contention of the defendant, State of Colorado, as to the facts, may be concisely stated as follows: the Arkansas River, popularly so called, is substantially two rivers — one a perennial stream rising in the mountains of Colorado and flowing down to the plains, and this Colorado Arkansas, when the
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river was permitted to run as it was accustomed to run, prior to the period of irrigation, poured into the sands of western Kansas, and at times of low water the river as a stream entirely disappeared. Its waters were to some extent evaporated, and, as to the residue, were absorbed and swallowed up in the sands. So that from the vicinity of the state line between Kansas and Colorado on eastwardly, as far, at least, as Great Bend, if not farther at such times of low water there was no flowing Arkansas River. Farther east, however, a new river arose, even at such times of low water, and partly from springs, partly from the drainage of the water table of the country supplied by rainfall, and partly from the surface drainage of an extensive territory, this river gradually again became a perennial stream, so that south of Wichita, and from there on to the mouth of the river, the Kansas Arkansas, as a new and separate stream, had a constant flow. Such, as the river was accustomed to flow, was the Arkansas of the period prior to irrigation. It was a ‘broken river.’ It is true that at all times in early years, and now, the Arkansas River at times of flood, or of what might be called high water, has a continuous flow from its source to its mouth, but a flow, even in times of flood or high water, which diminishes through the sandy waste east of the Colorado state line above described, so that oftentimes even a flood in Colorado would be completely lost before it had passed over this arid stretch of sandy channel, and high water would always be diminished in flow through the same stretch of country. This river is as if it were a current of water passing over a sieve — if the current be slow and the volume not excessive, all of it sinks through the sieve and none passes on beyond; when the current is rapid and the volume is large, still a large amount sinks in the sieve, and the residue passes on beyond.”
“Now the irrigators of Colorado have confined their actions to the Colorado Arkansas above described. They have taken the waters of the perennial stream before it reaches this sieve, through which it wasted; they have lifted that stream out of
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the sandy channel in which it had flowed, and applied it to beneficial uses upon the land; carried the body of it along at a higher level than where it was accustomed to run, and they finally restore it, practically undiminished in volume so far as regards practical use at points in the ancient channel farther east than the river at low water was accustomed to flow before the period of irrigation. The effect of the diversion of this water in Colorado, the carrying of it forward on a higher level, the return of waters, partly through seepage and partly through direct delivery at waste gates, and the effect of this process in extending eastward the perennial flow, will be fully discussed in the course of the argument to follow. It is sufficient in this preliminary statement to say that it is admitted by the complainant that, in the course of a twelve-month, there is a vast amount of high and flood waters of the Arkansas that are never captured by man, that are of no use, but are rather of injury to Kansas riparian proprietors, and, so far as any beneficial use is concerned, are absolutely wasted and lost. Kansas does not claim that she has not abundance of water in times of flood or in times of high water; her complaint is based upon the alleged fact that she does not have what she was accustomed to have in periods of low water, whereas, in fact as contended by the State of Colorado, the diversion of water in Colorado into ditches and reservoirs, continuing, as it does, throughout the year, in times of flood and in times of high water, has the effect, through seepage and return waters, to give perennial vitality to portions of this stream during what would otherwise be periods of depression or suspension of flow.”
The substance of the petition in intervention is thus stated by counsel for the government:
“The first paragraph of the said petition describes the Arkansas River from its source to its mouth, and alleges that it is not navigable in the States of Colorado and Kansas, nor the Territory of Oklahoma, but is navigable in the State of Arkansas and the Indian Territory.”
“In the second paragraph, it is alleged that the lands located
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within the watershed of the river west of the ninety-ninth degree of longitude are arid lands.”
“The third paragraph alleges that within said watershed there are 1,000,000 acres of public lands that are uninhabitable and unsalable.”
“The fourth paragraph alleges that said lands can only be made habitable, productive, and salable by impounding and storing flood and other waters in said watershed to the end that the said waters may be used to reclaim said land.”
“The fifth paragraph alleges that there is not sufficient moisture from rainfall to render the soil capable of producing crops in paying quantities in the watershed so described, and that they can only be made to produce crops by irrigation; that the common law doctrine of riparian rights is not applicable to conditions in the arid region, and has been abolished by statute and by usage and custom; that there has been established in its stead in said region a doctrine to the effect that the waters of natural streams and the flood and other waters may be impounded, appropriated, diverted, and used for the purpose of reclaiming and irrigating the arid land, therein, and that the prior appropriation of such waters for such purpose gives a prior and superior right to the water of the stream.”
“The sixth paragraph alleges that legislation of Congress, decisions of courts, and acts of the executive department have sanctioned and approved the use of water for irrigation purposes in the arid region, and that he who is prior in time is prior in right, and that it is recognized that the common law doctrine of riparian rights is not applicable to the public land owned by the United States in the arid region.”
“The seventh paragraph alleges that, in accordance with and in reliance upon the doctrine of the use of water for irrigation purposes, the inhabitants of the arid portion of the United States have appropriated and used the waters of streams therein to reclaim and make productive and profitable about 10,000,000 acres of land, which now support a population of many millions, and that the inhabitants of Colorado and Kansas
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within the watershed of the Arkansas River have, by irrigation from said river, made productive and profitable about 200,000 acres of land, which provide homes for and support a population of many thousands.”
“The eighth paragraph alleges that the common law doctrine of riparian rights is not applicable to riparian lands within the arid region, and that only by the use of waters of natural streams and flood waters for irrigation and other beneficial purposes can the lands in the arid region be made productive, and only by such use can additional areas be reclaimed and rendered productive and salable.”
“The ninth paragraph recites the passage of the so-called Reclamation Act of June 17, 1902.”
“The tenth paragraph alleges that about 60,000,000 acres of land belonging to the United States within the arid region can be reclaimed under the provisions of the so-called reclamation act.”
“The eleventh paragraph alleges that the amount of land that can be so reclaimed will support a population of many millions.”
“The twelfth paragraph alleges that, under the operation of the said Reclamation Act, 100,000 acres of public land can be reclaimed within the watershed of the Arkansas River west of the ninety-ninth degree west.”
“The thirteenth paragraph alleges that the lands, when so reclaimed, will support a population of not less that 50,000.”
“The fourteenth paragraph alleges that, under the operation of the so-called Reclamation Act, about $1,000,000 has been expended in exploring, procuring, and setting apart sites upon which reservoirs and dams contemplated by the act can be constructed and maintained; that contracts have been let for the construction of reservoirs which, when completed, will cost over two millions and will have a storage capacity to reclaim 500,000 acres of arid land, which land, when reclaimed, will sustain a population of not less than 250,000; that plans are contemplated for the expenditure of $20,000,000 under
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said act, to irrigate about 1,000,000 acres of arid public lands.”
“The fifteenth paragraph recites that there are $16,000,000 available under the so-called Reclamation Act.”
“The sixteenth paragraph sets forth the contention of Kansas as seen in its amended bill of complaint — viz., that it is entitled to have the waters of the Arkansas River, which rises in Colorado, flow uninterrupted and unimpeded into Kansas.”
“The seventeenth paragraph sets forth the contention of Colorado in respect to its claim of ownership — viz., that, under the provisions of its Constitution, it is the owner of all waters within that state.”
“The eighteenth paragraph is as follows:”
” That neither the contention of the State of Colorado nor the contention of the State of Kansas is correct; nor does either contention accord with the doctrine prevailing in the arid region in respect to the waters of natural streams and of flood and other waters. That either contention, if sustained, would defeat the object, intent, and purpose of the Reclamation Act, prevent the settlement and sale of the arid lands belonging to the United States, and especially those within the watershed of the Arkansas River west of the ninety-ninth degree west longitude, and would otherwise work great damage to the interests of the United States. ”
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MR. JUSTICE BREWER delivered the opinion of the Court.
While we said in overruling the demurrer that “this Court, speaking broadly, has jurisdiction,” we contemplated further consideration of both the fact and the extent of our jurisdiction, to be fully determined after the facts were presented. We therefore commence with this inquiry. And first, of our jurisdiction of the controversy between Kansas and Colorado.
This suit involves no question of boundary or of the limits of territorial jurisdiction. Other and incorporeal rights are claimed by the respective litigants. Controversies between the states are becoming frequent, and, in the rapidly changing conditions of life and business, are likely to become still more so. Involving, as they do, the rights of political communities which in many respects are sovereign and independent, they present not infrequently questions of far-reaching import and of exceeding difficulty.
It is well, therefore, to consider the foundations of our jurisdiction over controversies between states. It is no longer open to question that, by the Constitution, a nation was brought into being, and that that instrument was not merely operative to establish a closer union or league of states. Whatever powers of government were granted to the nation or reserved to the states (and, for the description and limitation of those powers, we must always accept the Constitution as alone and absolutely controlling), there was created a nation, to be known as the United States of America, and as such then assumed its place among the nations of the world.
The first resolution passed by the convention that framed the Constitution, sitting as a committee of the whole, was
“Resolved, That it is the opinion of this committee that a national government ought to be established, consisting of a
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supreme legislative, judiciary, and executive.”
1 Elliot Debates, p. 151.
In @ 17 U. S. 405, Chief Justice Marshall said:
“The government of the Union, then (whatever may be the influence of this fact on the case), is emphatically and truly a government of the people. In form and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”
@See also 14 U. S. 324, opinion by Mr. Justice Story.
In @ 60 U. S. 441, Chief Justice Taney observed:
“The new government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations, of the preceding one. But, when the present United States came into existence under the new government, it was a new political body, a new nation, then for the first time taking its place in the family of nations.”
And, in Miller on the Constitution of the United States, p. 83, referring to the adoption of the Constitution, that learned jurist said: “It was then that a nation was born.”
In the Constitution are provisions in separate articles for the three great departments of government — legislative, executive, and judicial. But there is this significant difference in the grants of powers to these departments: the first article, treating of legislative powers, does not make a general grant of legislative power. It reads: “Article I, § 1. All legislative powers herein granted shall be vested in a Congress,” etc., and then, in Article VIII, mentions and defines the legislative powers that are granted. By reason of the fact that there is no general grant of legislative power, it has become an accepted constitutional rule that this is a government of enumerated powers.
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In M’Culloch v. Maryland, 4 Wheat. 405, Chief Justice Marshall said:
“This government is acknowledged by all to be one of enumerated powers. The principal that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted.”
On the other hand, in Article III, which treats of the judicial department — and this is important for our present consideration — we find that § 1 reads that
“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”
By this is granted the entire judicial power of the nation. Section 2, which provides that “the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States,” etc., is not a limitation nor an enumeration. It is a definite declaration — a provision that the judicial power shall extend to — that is, shall include — the several matters particularly mentioned, leaving unrestricted the general grant of the entire judicial power. There may be, of course, limitations on that grant of power, but, if there are any, they must be expressed, for otherwise the general grant would vest in the courts all the judicial power which the new nation was capable of exercising. Construing this article in the early case of @ 2 U. S. 453):
“This question, important in itself, will depend on others more important still, and may, perhaps, be ultimately resolved into one no less radical than this — do the people of the United States form a nation?”
In reference to this question attention may, however, properly be called to Hans v. Louisiana, 134 U. S. 1.
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The decision in Chisholm v. Georgia led to the adoption of the Eleventh Amendment to the Constitution, withdrawing from the judicial power of the United States every suit in law or equity commenced or prosecuted against one of the United States by citizens of another state or citizens or subjects of a foreign state. This amendment refers only to suits and actions by individuals, leaving undisturbed the jurisdiction over suits or actions by one state against another. As said by Chief Justice Marshall in 19 U. S. 407: “The Amendment therefore extended to suits commenced or prosecuted by individuals, but not to those brought by states.” See also South Dakota v. North Carolina,@ 192 U. S. 286.
Speaking generally, it may be observed that the judicial power of a nation extends to all controversies justiciable in their nature, and the parties to which or the property involved in which may be reached by judicial process, and, when the judicial power of the United States was vested in the Supreme and other courts, all the judicial power which the nation was capable of exercising was vested in those tribunals, and, unless there be some limitations expressed in the Constitution, it must be held to embrace all controversies of a justiciable nature arising within the territorial limits of the nation, no matter who may be the parties thereto. This general truth is not inconsistent with the decisions that no suit or action can be maintained against the nation in any of its courts without its consent, for they only recognize the obvious truth that a nation is not, without its consent, subject to the controlling action of any of its instrumentalities or agencies. The creature cannot rule the creator. Kawananakoa v. Polyblank, 205 U. S. 349. Nor is it inconsistent with the ruling in Wisconsin v. Pelican Insurance Company, 127 U. S. 265, that an original action cannot be maintained in this Court by one state to enforce its penal laws against a citizen of another state. That was no denial of the jurisdiction of the Court, but a decision upon the merits of the claim of the state.
These considerations lead to the propositions that, when a
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legislative power is claimed for the national government, the question is whether that power is one of those granted by the Constitution, either in terms or by necessary implication, whereas, in respect to judicial functions, the question is whether there by any limitations expressed in the Constitution on the general grant of national power.
We may also notice a matter in respect thereto referred to at length in Missouri v. Illinois, 180 U. S. 208, 180 U. S. 220. The ninth article of the Articles of Confederation provided that
“The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more states concerning boundary, jurisdiction, or any other cause whatever.”
In the early drafts of the Constitution, provision was made giving to the Supreme Court “jurisdiction of controversies between two or more states, except such as shall regard territory or jurisdiction,” and also that the Senate should have exclusive power to regulate the manner of deciding the disputes and controversies between the states respecting jurisdiction or territory. As finally adopted, the Constitution omits all provisions for the Senate’s taking cognizance of disputes between the states, and leaves out the exception referred to in the jurisdiction granted to the Supreme Court. That carries with it a very direct recognition of the fact that to the Supreme Court is granted jurisdiction of all controversies between the states which are justiciable in their nature.
“All the states have transferred the decision of their controversies to this Court; each had a right to demand of it the exercise of the power which they had made judicial by the Confederation of 1781 and 1788; that we should do that which neither states nor Congress could do — settle the controversies between them.”
@ 37 U. S. 743.
Under the same general grant of judicial power, jurisdiction over suits brought by the United States has been sustained. United States v. Texas, 143 U. S. 621, 162 U. S. 162 U.S. 1; United States v. Michigan, 190 U. S. 379.
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The exemption of the United States to suit in one of its own courts without its consent has been repeatedly recognized. Kansas v. United States, 204 U. S. 231, 204 U. S. 341, and cases cited.
Turning now to the controversy as here presented, it is whether Kansas has a right to the continuous flow of the waters of the Arkansas River, as that flow existed before any human interference therewith, or Colorado the right to appropriate the waters of that stream so as to prevent that continuous flow, or that the amount of the flow is subject to the superior authority and supervisory control of the United States. While several of the defendant corporations have answered, it is unnecessary to specially consider their defenses, for, if the case against Colorado fails, it fails also as against them. Colorado denies that it is in any substantial manner diminishing the flow of the Arkansas River into Kansas. If that be true, then it is in no way infringing upon the rights of Kansas. If it is diminishing that flow, has it an absolute right to determine for itself the extent to which it will diminish it, even to the entire appropriation of the water? And if it has not that absolute right, is the amount of appropriation that it is now making such an infringement upon the rights of Kansas as to call for judicial interference? Is the question one solely between the states, or is the matter subject to national legislative regulation? and, if the latter, to what extent has that regulation been carried? Clearly this controversy is one of a justiciable nature. The right to the flow of a stream was one recognized at common law, for a trespass upon which a cause of action existed.
The primary question is, of course, of national control. For, if the nation has the right to regulate the flow of the waters, we must inquire what it has done in the way of regulation. If it has done nothing, the further question will then arise, what are the respective rights of the two states, in the absence of national regulation? Congress has, by virtue of the grant to it of power to regulate commerce “among the several states,” extensive control over the highways, natural or artificial, upon which such commerce may be carried. It may prevent or remove
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obstructions in the natural waterways and preserve the navigability of those ways. In United States v. Rio Grande Irrigation Company, 174 U. S. 690, in which was considered the validity of the appropriation of the water of a stream by virtue of local legislation, so far as such appropriation affected the navigability of the stream, we said (p. 174 U. S. 703):
“Although this power of changing the common law rule as to streams within its dominion undoubtedly belongs to each state, yet two limitations must be recognized: first, that, in the absence of specific authority from Congress, a state cannot, by its legislation, destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters — so far at least, as may be necessary for the beneficial uses of the government property. Second, that it is limited by the superior power of the general government to secure the uninterrupted navigability of all navigable streams within the limits of the United States. In other words, the jurisdiction of the general government over interstate commerce and its natural highways vests in that government the right to take all needed measures to preserve the navigability of the navigable water courses of the country, even against any state action.”
It follows from this that if, in the present case, the national government was asserting, as against either Kansas or Colorado, that the appropriation for the purposes of irrigation of the waters of the Arkansas was affecting the navigability of the stream, it would become our duty to determine the truth of the charge. But the government makes no such contention. On the contrary, it distinctly asserts that the Arkansas River is not now, and never was, practically navigable beyond Fort Gibson in the Indian Territory, and nowhere claims that any appropriation of the waters by Kansas or Colorado affects its navigability.
It rests its petition of intervention upon its alleged duty of legislating for the reclamation of arid lands; alleges that, in or near the Arkansas River as it runs through Kansas and Colorado,
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are large tracts of those lands; that the national government is itself the owner of many thousands of acres; that it has the right to make such legislative provision as, in its judgment, is needful for the reclamation of all these arid lands, and, for that purpose, to appropriate the accessible waters.
In support of the main proposition, it is stated in the brief of its counsel:
“That the doctrine of riparian rights is inapplicable to conditions prevailing in the arid region; that such doctrine, if applicable in said region, would prevent the sale, reclamation, and cultivation of the public arid lands, and defeat the policy of the government in respect thereto; that the doctrine which is applicable to conditions in said arid region, and which prevails therein, is that the waters of natural streams may be used to irrigate and cultivate arid lands, whether riparian or nonriparian, and that the priority of appropriation of such waters and the application of the same for beneficial purposes establishes a prior and superior right.”
In other words, the determination of the rights of the two states inter sese in regard to the flow of waters in the Arkansas River is subordinate to a superior right on the part of the national government to control the whole system of the reclamation of arid lands. That involves the question whether the reclamation of arid lands is one of the powers granted to the general government. As heretofore stated, the constant declaration of this Court from the beginning is that this government is one of enumerated powers.
“The government, then, of the United States, can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given or given by necessary implication.”
Story, J., in 14 U. S. 326. “The government of the United States is one of delegated, limited, and enumerated powers.” United States v. Harris,@ 106 U. S. 629, 106 U. S. 635.
Turning to the enumeration of the powers granted to Congress by the eighth section of the first article of the Constitution,
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it is enough to say that no one of them, by any implication, refers to the reclamation of arid lands. The last paragraph of the section, which authorizes Congress to make all laws which shall be necessary to proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof, is not the delegation of a new and independent power, but simply provision for making effective the powers theretofore mentioned. The construction of that paragraph was precisely stated by Chief Justice Marshall in these words:
“We think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional –”
a statement which has become the settled rule of construction. From this and other declarations, it is clear that the Constitution is not to be construed technically and narrowly, as an indictment, or even as a grant presumably against the interest of the grantor, and passing only that which is clearly included within its language, but as creating a system of government whose provisions are designed to make effective and operative all the governmental powers granted. Yet, while so construed, it still is true that no independent and unmentioned power passes to the national government or can rightfully be exercised by the Congress.
We must look beyond section 8 for congressional authority over arid lands, and it is said to be found in the second paragraph of section 3 of Article IV, reading:
“The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging
Page 206 U. S. 89
to the United States, and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.”
The full scope of this paragraph has never been definitely settled. Primarily, at least, it is a grant of power to the United States of control over its property. That is implied by the words “territory or other property.” It is true it has been referred to in some decisions as granting political and legislative control over the territories as distinguished from the states of the Union. It is unnecessary in the present case to consider whether the language justifies this construction. Certainly we have no disposition to limit or qualify the expressions which have heretofore fallen from this Court in respect thereto. But clearly it does not grant to Congress any legislative control over the states, and must, so far as they are concerned, be limited to authority over the property belonging to the United States within their limits. Appreciating the force of this, counsel for the government relies upon “the doctrine of sovereign and inherent power;” adding, “I am aware that in advancing this doctrine I seem to challenge great decisions of the Court, and I speak with deference.” His argument runs substantially along this line: all legislative power must be vested in either the state or the national government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that state; consequently all powers which are national in their scope must be found vested in the Congress of the United States. But the proposition that there are legislative powers affecting the nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain
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by the Tenth Amendment. This Amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the national government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination, the framers intended that no such assumption should ever find justification in the organic act, and that if, in the future, further powers seemed necessary, they should be granted by the people in the manner they had provided for amending that act. It reads:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
The argument of counsel ignores the principal factor in this article, to-wit, “the people.” Its principal purpose was not the distribution of power between the United States and the states, but a reservation to the people of all powers not granted. The preamble of the Constitution declares who framed it — “we, the people of the United States,” not the people of one state, but the people of all the states, and Article X reserves to the people of all the states the powers not delegated to the United States. The powers affecting the internal affairs of the states not granted to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, and all powers of a national character which are not delegated to the national government by the Constitution are reserved to the people of the United States. The people who adopted the Constitution knew that, in the nature of things, they could not foresee all the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and, after making provision for an amendment to the Constitution by which any needed additional powers would be granted, they reserved to themselves all powers not so delegated. This Article X is not to be shorn of its meaning by any narrow or technical construction, but is to be considered fairly and
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liberally so as to give effect to its scope and meaning. As we said, construing an express limitation on the powers of Congress, in Fairbank v. United States, 181 U. S. 283, 181 U. S. 288:
“We are not here confronted with a question of the extent of the powers of Congress, but one of the limitations imposed by the Constitution on its action, and it seems to us clear that the same rule and spirit of construction must also be recognized. If powers granted are to be taken as broadly granted and as carrying with them authority to pass those acts which may be reasonably necessary to carry them into full execution; in other words, if the Constitution in its grant of powers is to be so construed that Congress shall be able to carry into full effect the powers granted, it is equally imperative that, where prohibition or limitation is placed upon the power of Congress, that prohibition or limitation should be enforced in its spirit and to its entirety. It would be a strange rule of construction that language granting powers is to be liberally construed, and that language of restriction is to be narrowly and technically construed. Especially is this true when, in respect to grants of powers, there is, as heretofore noticed, the help found in the last clause of the eighth section, and no such helping clause in respect to prohibitions and limitations. The true spirit of constitutional interpretation in both directions is to give full, liberal construction to the language, aiming ever to show fidelity to the spirit and purpose.”
This very matter of the reclamation of arid lands illustrates this: at the time of the adoption of the Constitution, within the known and conceded limits of the United States there were no large tracts of arid land, and nothing which called for any further action than that which might be taken by the legislature of the state in which any particular tract of such land was to be found, and the Constitution therefore makes no provision for a national control of the arid regions or their reclamation. But, as our national territory has been enlarged, we have within our borders extensive tracts of arid lands
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which ought to be reclaimed, and it may well be that no power is adequate for their reclamation other than that of the national government. But, if no such power has been granted, none can be exercised.
It does not follow from this that the national government is entirely powerless in respect to this matter. These arid lands are largely within the territories, and over them, by virtue of the second paragraph of § 3 of Article IV, heretofore quoted, or by virtue of the power vested in the national government to acquire territory by treaties, Congress has full power of legislation, subject to no restrictions other than those expressly named in the Constitution, and therefore it may legislate in respect to all arid lands within their limits. As to those lands within the limits of the states — at least of the Western states — the national government is the most considerable owner and has power to dispose of and make all needful rules and regulations respecting its property. We do not mean that its legislation can override state laws in respect to the general subject of reclamation. While arid lands are to be found mainly, if not only, in the Western and newer states, yet the powers of the national government within the limits of those states are the same (no greater and no less) than those within the limits of the original thirteen, and it would be strange if, in the absence of a definite grant of power, the national government could enter the territory of the states along the Atlantic and legislate in respect to improving, by irrigation or otherwise, the lands within their borders. Nor do we understand that, hitherto, Congress has acted in disregard to this limitation. As said by Mr. Justice White, delivering the opinion of the Court in Gutierres v. Albuquerque Land Company, 188 U. S. 545, 188 U. S. 554, after referring to previous legislation:
“It may be observed that the purport of the previous acts is reflexively illustrated by the Act of June 17, 1902, 32 Stat. 388, c. 1093. That act appropriated the receipts from the sale and disposal of the public lands in certain states and territories
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to the construction of irrigation works for the reclamation of arid lands. The eighth section of the act is as follows:”
“SEC. 8. That nothing in this act shall be construed as affecting or intending to affect or to in any way interfere with the laws of any state or territory relating to the control, appropriation, 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, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, That the right to the use of the water acquired under the provisions of this act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.”
But it is useless to pursue the inquiry further in this direction. It is enough for the purposes of this case that each state has full jurisdiction over the lands within its borders, including the beds of streams and other waters. @ 41 U. S. 338):
“And since this Court, in the case of The Genesee Chief, 12 How. 443, has declared that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reasons for adhering to the old rule as to the proprietorship of the beds and shores of such
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waters. It properly belongs to the states by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond the limits of high water.”
In Hardin v. Jordan, supra, the same Justice, after stating that the title to the shore and lands under water is in the state, added (pp. 140 U. S. 381-382):
“Such title being in the state, the lands are subject to state regulation and control, under the condition, however, of not interfering with the regulations which may be made by Congress with regard to public navigation and commerce. . . . Sometimes large areas so reclaimed are occupied by cities, and are put to other public or private uses, state control and ownership therein being supreme, subject only to the paramount authority of Congress in making regulations of commerce, and in subjecting the lands to the necessities and uses of commerce. . . . This right of the states to regulate and control the shores of tidewaters, and the land under them, is the same as that which is exercised by the Crown in England. In this country, the same rule has been extended to our great navigable lakes, which are treated as inland seas, and also, in some of the states, to navigable rivers, as the Mississippi, the Missouri, the Ohio, and, in Pennsylvania, to all the permanent rivers of the state; but it depends on the law of each state to what waters and to what extent this prerogative of the state over the lands under water shall be exercised.”
It may determine for itself whether the common law rule in respect to riparian rights or that doctrine which obtains in the arid regions of the West of the appropriation of waters for the purposes of irrigation shall control. Congress cannot enforce either rule upon any state. It is undoubtedly true that the early settlers brought to this country the common law of England, and that that common law throws light on the meaning and scope of the Constitution of the United States, and is also in many states expressly recognized as of controlling force in the absence of express statute. As said by Mr.
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Justice Gray in United States v. Wong Kim Ark, 169 U. S. 649, 169 U. S. 654:
“In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. 88 U. S. 422; Boyd v. United States, 116 U. S. 616, 116 U. S. 624-625; Smith v. Alabama, 124 U. S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. 1 Kent, Com. 336; Bradley, J., in Moore v. United States,@ 91 U. S. 270, 91 U. S. 274.”
In the argument on the demurrer, counsel for plaintiff endeavored to show that Congress had expressly imposed the common law on all this territory prior to its formation into states. See also the opinion of the Supreme Court of Kansas in Clark v. Allaman, 71 Kan. 206. But when the states of Kansas and Colorado were admitted into the Union, they were admitted with the full powers of local sovereignty which belonged to other states (Pollard v. Hagan, supra; Shively v. Bowlby, supra; Hardin v. Shedd, 190 U. S. 508, 190 U. S. 519), and Colorado, by its legislation, has recognized the right of appropriating the flowing waters to the purposes of irrigation. Now the question arises between two states, one recognizing generally the common law rule of riparian rights and the other prescribing the doctrine of the public ownership of flowing water. Neither state can legislate for, or impose its own policy upon the other. A stream flows through the two and a controversy is presented as to the flow of that stream. It does not follow, however, that, because Congress cannot determine the rule which shall control between the two states, or because neither state can enforce its own policy upon the other, that the controversy ceases to be one of a justiciable nature, or that there is no power which can take cognizance of the controversy and determine the relative rights of the two states. Indeed, the disagreement, coupled with its effect upon a stream passing through the two states, makes a matter for investigation and
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determination by this Court. It has been said that there is no common law of the United States, as distinguished from the common law of the several states. This contention was made in Western Union Telegraph Company v. Call Publishing Company, 181 U. S. 92, in which it was asserted that, as Congress, having sole jurisdiction over interstate commerce, had prescribed no rates for interstate telegraphic communications, there was no limit on the power of a telegraph company in respect thereto. After referring to the general contention, we paid (pp. 181 U. S. 101-102):
“Properly understood, no exceptions can be taken to declarations of this kind. There is no body of federal common law separate and distinct from the common law existing in the several states in the sense that there is a body of statute law enacted by Congress separate and distinct from the body of statute law enacted by the several states. But it is an entirely different thing to hold that there is no common law in force generally throughout the United States, and that the countless multitude of interstate commercial transactions are subject to no rules and burdened by no restrictions other than those expressed in the statutes of Congress. . . . Can it be that the great multitude of interstate commercial transactions are freed from the burdens created by the common law, as so defined, and are subject to no rule except that to be found in the statutes of Congress? We are clearly of opinion that this cannot be so, and that the principles of the common law are operative upon all interstate commercial transactions except so far as they are modified by congressional enactment.”
What is the common law? Kent says (vol. 1, p. 471):
“The common law includes those principles, usages, and rules of action applicable to the government and security of persons and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature.”
As it does not rest on any statute or other written declaration of the sovereign, there must, as to each principle thereof, be a first statement. Those statements are found in the decisions
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of courts, and the first statement presents the principle as certainly as the last. Multiplication of declarations merely adds certainty. For after all, the common law is but the accumulated expressions of the various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes. As Congress cannot make compacts between the states, as it cannot, in respect to certain matters, by legislation compel their separate action, disputes between them must be settled either by force or else by appeal to tribunals empowered to determine the right and wrong thereof. Force, under our system of government, is eliminated. The clear language of the Constitution vests in this Court the power to settle those disputes. We have exercised that power in a variety of instances, determining in the several instances the justice of the dispute. Nor is our jurisdiction ousted even if, because Kansas and Colorado are states sovereign and independent in local matters, the relations between them depend in any respect upon principles of international law. International law is no alien in this tribunal. In The Paquete Habana, 175 U. S. 677, 175 U. S. 700, Mr. Justice Gray declared:
“International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.”
And, in delivering the opinion in the demurrer in this case, CHIEF JUSTICE FULLER said (185 U.S. 185 U. S. 146):
“Sitting, as it were, as an international, as well as a domestic, tribunal, we apply federal law, state law, and international law, as the exigencies of the particular case may demand.”
One cardinal rule underlying all the relations of the states to each other is that of equality of right. Each state stands on the same level with all the rest. It can impose its own legislation on no one of the others, and is bound to yield its own views to none. Yet whenever, as in the case of Missouri v. Illinois, supra, the action of one state reaches, through the agency of natural laws, into the territory of another state,
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the question of the extent and the limitations of the rights of the two states becomes a matter of justiciable dispute between them, and this Court is called upon to settle that dispute in such a way as will recognize the equal rights of both, and at the same time establish justice between them. In other words, through these successive disputes and decisions, this Court is practically building up what may not improperly be called interstate common law. This very case presents a significant illustration. Before either Kansas or Colorado was settled, the Arkansas River was a stream running through the territory which now composes these two states. Arid lands abound in Colorado. Reclamation is possible only by the application of water, and the extreme contention of Colorado is that it has a right to appropriate all the waters of this stream for the purposes of irrigating its soil and making more valuable its own territory. But the appropriation of the entire flow of the river would naturally tend to make the lands along the stream in Kansas less arable. It would be taking from the adjacent territory that which had been the customary natural means of preserving its arable character. On the other hand, the possible contention of Kansas that the flowing water in the Arkansas must, in accordance with the extreme doctrine of the common law of England, be left to flow as it was wont to flow, no portion of it being appropriated in Colorado for the purposes of irrigation, would have the effect to perpetuate a desert condition in portions of Colorado beyond the power of reclamation. Surely here is a dispute of a justiciable nature which might and ought to be tried and determined. If the two states were absolutely independent nations, it would be settled by treaty or by force. Neither of these ways being practicable, it must be settled by decision of this Court.
It will be perceived that Kansas asserts a pecuniary interest as the owner of certain tracts along the banks of the Arkansas and as the owner of the bed of the stream. We need not stop to consider what right such private ownership of property might give.
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In deciding this case on demurrer, we said, referring to the opinion in Missouri v. Illinois (185 U.S. 185 U. S. 142):
“As will be perceived, the Court there ruled that the mere fact that a state had no pecuniary interest in the controversy would not defeat the original jurisdiction of this Court, which might be invoked by the state as parens patriae, trustee, guardian, or representative of all or a considerable portion of its citizens, and that the threatened pollution of the waters of a river flowing between states, under the authority of one of them, thereby putting the health and comfort of the citizens of the other in jeopardy, presented a cause of action justiciable under the Constitution.”
“In the case before us, the State of Kansas files her bill as representing and on behalf of the citizens, as well as in vindication of her alleged rights as an individual owner, and seeks relief in respect of being deprived of the waters of the river accustomed to flow through and across the state, and the consequent destruction of the property of herself and of her citizens and injury to their health and comfort. The action complained of is state action, and not the action of state officers in abuse or excess of their powers.”
It is the State of Kansas which invokes the action of this Court, charging that, through the action of Colorado, a large portion of its territory is threatened with disaster. In this respect, it is in no manner evading the provisions of the Eleventh Amendment to the federal Constitution. It is not acting directly and solely for the benefit of any individual citizen to protect his riparian rights. Beyond its property rights, it has an interest as a state in this large tract of land bordering on the Arkansas River. Its prosperity affects the general welfare of the state. The controversy rises, therefore above a mere question of local private right, and involves a matter of state interest, and must be considered from that standpoint. Georgia v. Tennessee Copper Co., decided this day, post, p. 206 U. S. 230.
This changes, in some respects, the scope of our inquiry. It is not limited to the simple matter of whether any portion of the
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waters of the Arkansas is withheld by Colorado. We must consider the effect of what has been done upon the conditions in the respective states, and so adjust the dispute upon the basis of equality of rights as to secure as far as possible to Colorado the benefits of irrigation without depriving Kansas of the like beneficial effects of a flowing stream. A little reflection will make this clear. Suppose the controversy was between two individuals, upper and lower riparian owners on a little stream with rocky bank and rocky bottom. The question properly might be limited to the single one of the diminution of the flow by the upper riparian proprietor . The lower riparian proprietor might insist that he was entitled to the full, undiminished, and unpolluted flow of the water of the stream as it had been wont to run. It would not be a defense on the part of the upper riparian proprietor that, by the use to which he had appropriated the water, he had benefited the lower proprietor, or that the latter had received in any other respects an equivalent. The question would be one of legal right, narrowed to place, amount of flow, and freedom from pollution.
We do not intimate that entirely different considerations obtain in a controversy between two states. Colorado could not be upheld in appropriating the entire flow of the Arkansas River on the ground that it is willing to give, and does give, to Kansas, something else which may be considered of equal value. That would be equivalent to this Court’s making a contract between the two states, and that it is not authorized to do. But we are justified in looking at the question not narrowly and solely as to the amount of the flow in the channel of the Arkansas River, inquiring merely whether any portion thereof is appropriated by Colorado, but we may properly consider what, in case a portion of that flow is appropriated by Colorado, are the effects of such appropriation upon Kansas territory. For instance, if there be many thousands of acres in Colorado destitute of vegetation, which, by the taking of water from the Arkansas River, and in no other way, can be
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made valuable as arable lands producing an abundance of vegetable growth, and this transformation of desert land has the effect, through percolation of water in the soil, or in any other way, of giving to Kansas territory, although not in the Arkansas Valley, a benefit from water as great as that which would inure from keeping the flow of the Arkansas in its channel undiminished, then we may rightfully regard the usefulness to Colorado as justifying its action, although the locality of the benefit from the flow of the Arkansas through Kansas has territorially changed. Science may not as yet be able to give positive information as to the processes by which the distribution of water over certain territory has operation beyond the mere limits of the area in which the water is distributed, but they who have dwelt in the West know that there are constant changes in the productiveness of different portions of the territory, owing, apparently, to a wider and more constant distribution of water. To illustrate, the early settlers of Kansas Territory found that farming was unsuccessful unless confined to its eastern 100 or 120 miles. West of that, crops were almost always a failure; but now that region is the home of a large population, with crops as certain as those elsewhere, and yet this change has not been brought about by irrigation. A common belief is that the original sod was largely impervious to water; that, when the spring rains came, the water, instead of sinking into the ground, filled the water courses to overflowing and ran off to the Gulf of Mexico. There was no water in the soil to go up in vapor and come down in showers, and the constant heat of summer destroyed the crops; but after the sod had once been turned, the water from those rains largely sank into the ground, and then, as the summer came on, went up in vapor and came down in showers, and so, by continued watering, prevented the burning up of the growing crops. We do not mean to say that science has demonstrated this to be the operating cause, or that other theories are not propounded, but the fact is that, instead of stopping at a distance of 120 miles from the Missouri River, the area of cultivated and
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profitably cultivated land has extended from 150 to 200 miles further west, and seems to be steadily moving towards the western boundary of the state. Now if there is this change gradually moving westward from the Missouri River, is it altogether an unreasonable expectation that, as the arid lands of Colorado are irrigated and become from year to year covered with vegetation, there will move eastward from Colorado an extension of the area of arable lands until, between the Missouri River and the mountains of Colorado, there shall be no land which is not as fully subject to cultivation as lands elsewhere in the country? Will not the productiveness of Kansas as a whole, its capacity to support an increasing population, be increased by the use of the water in Colorado for irrigation? May we not consider some appropriation by Colorado of the waters of the Arkansas to the irrigation and reclamation of its arid lands as a reasonable exercise of its sovereignty, and as not unreasonably trespassing upon any rights of Kansas? And here we must notice the local law of Kansas as declared by its supreme court, premising that 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. In Clark v. Allaman, 71 Kan. 206, is an exhaustive discussion of the question, Mr. Justice Burch delivering the unanimous opinion of the court. In the syllabus, which by statute (Compiled Laws, Kansas, p. 317, sec. 14) is prepared by the justice writing the opinion, and states the law of the case, are these paragraphs:
“The use of the water of a running stream for irrigation, after its primary uses for quenching thirst and other domestic requirements have been subserved, is one of the common law rights of a riparian proprietor.”
“The use of water by a riparian proprietor for irrigation purposes must be reasonable under all the circumstances, and the right must be exercised with due regard to the equal right of every other riparian owner along the course of the stream.”
“A diminution of the flow of water over riparian land, caused
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by its use for irrigation purposes by upper riparian proprietors, occasions no injury for which damages may be allowed unless it results in subtracting from the value of the land by interfering with the reasonable uses of the water which the landowner is able to enjoy.”
“In determining the quantity of land tributary to and lying along a stream which a single proprietor may irrigate, the principle of equality of right with others should control, irrespective of the accidental matter of governmental subdivisions of the land.”
And in the opinion, on pages 242-243, are quoted these observations of Chief Justice Shaw in the case of Elliot v. Fitchburg Railroad Company, 10 Cush.191, 193, 196:
“The right to flowing water is now well settled to be a right incident to property in the land; it is a right publici juris, of such character that, whilst it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet, as one of the beneficial gifts of Providence, each proprietor has a right to a just and reasonable use of it, as it passes through his land, and so long as it is not wholly obstructed or diverted, or no larger appropriation of the water running through it is made than a just and reasonable use, it cannot be said to be wrongful or injurious to a proprietor lower down. What is such a just and reasonable use may often be a difficult question, depending on various circumstances. To take a quantity of water from a large running stream for agriculture or manufacturing purposes would cause no sensible or practicable diminution of the benefit, to the prejudice of a lower proprietor; whereas, taking the same quantity from a small running brook, passing through many farms, would be of great and manifest injury to those below, who need it for domestic supply or watering cattle, and therefore it would be an unreasonable use of the water, and an action would lie in the latter case, and not in the former. It is therefore to a considerable extent a question of degree; still, the rule is the same, that each proprietor has a right to a reasonable use of it, for
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his own benefit, for domestic use, and for manufacturing and agricultural purposes. . . .”
“That a portion of the water of a stream may be used for the purpose of irrigating land we think is well established as one of the rights of the proprietors of the soil along or through which it passes. Yet a proprietor cannot, under color of that right, or for the actual purpose of irrigating his own land, wholly abstract or divert the water course, or take such an unreasonable quantity of water, or make such unreasonable use of it, as to deprive other proprietors of the substantial benefits which they might derive from it, if not diverted or used unreasonably. . . .”
“This rule, that no riparian proprietor can wholly abstract or divert a watercourse, by which it would cease to be a running stream, or use it unreasonably in its passage, and thereby deprive a lower proprietor of a quality of his property deemed in law incidental and beneficial, necessarily flows from the principle that the right to the reasonable and beneficial use of a running stream is common to all the riparian proprietors, and so each is bound so to use his common right as not essentially to prevent or interfere with an equally beneficial enjoyment of the common right by all the proprietors. . . .”
“The right to the use of flowing water is publici juris, and common to all the riparian proprietors; it is not an absolute and exclusive right to all the water flowing past their land, so that any obstruction would give a cause of action, but it is a right to the flow and enjoyment of the water, subject to a similar right in all the proprietors, to the reasonable enjoyment of the same gift of Providence. It is therefore only for an abstraction and deprivation of this common benefit, or for an unreasonable and unauthorized use of it, that an action will lie.”
As Kansas thus recognizes the right of appropriating the waters of a stream for the purposes of irrigation, subject to the condition of an equitable division between the riparian proprietors, she cannot complain if the same rule is administered
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between herself and a sister state. And this is especially true when the waters are, except for domestic purposes, practically useful only for purposes of irrigation. The Arkansas River, from its source to the eastern end of the Royal Gorge, is a mountain torrent, coming down between rocky banks and over a rocky bed. Along this distance, it is of comparatively little use for irrigation purposes. After it debouches from the Royal Gorge, it enters a valley, in which it wanders from one side to the other through eastern Colorado, southwestern Kansas, and into Oklahoma, with but a slight descent, and presenting but little opportunities for the development of water power through falls or by dams. Its length in Kansas is about three hundred and fifty miles, and the descent is only 2,320 feet, or less than seven feet to a mile. There are substantially no falls, no narrow passageways in which dams can be readily constructed for the development of water power, and while there are some in eastern Colorado, yet they are of little elevation, and mainly to assist in the storing of water for purposes of irrigation. So that, if the extreme rule of the common law were enforced, Oklahoma, having the same right to insist that there should be no diversion of the stream in Kansas for the purposes of irrigation that Kansas has in respect to Colorado, the result would be that the waters, except for the meager amount required for domestic purposes, would flow through eastern Colorado and Kansas of comparatively little advantage to either state, and both would lose the great benefit which comes from the use of the water for irrigation. The drainage area of the Arkansas River in Colorado is 26,000 square miles; in Kansas, 20,000 square miles, and all this area, unless the stream can be used for purposes of irrigation, would be left to the slow development which comes from the cultivation of the soil.
The testimony in this case is voluminous, amounting to 8,559 typewritten pages, with 122 exhibits, and it would be impossible to make a full statement of facts without an extravagant extension of this opinion, which is already too long;
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and yet some facts must be stated to indicate the basis for the conclusion to which we have come. It must also be noted that, as might be expected in such a volume of testimony, coming as it does from three hundred and forty-seven witnesses, there is no little contradiction and a good deal of confusion, and this contradiction is to be found not merely in the testimony of witnesses, but also in the exhibits, among which are reports from the officials of the government and the two states. We have endeavored to deduce from this volume those matters which seem most clearly proved, and must, as to other matters, be content to generalize and state that which seems to be the tendency of the evidence.
Colorado is divided into five irrigating divisions, each of which is in charge of a division engineer. That which includes the drainage area of the Arkansas is District No. 2, divided into eleven districts. Under the laws of Colorado, irrigating ditches have been established in this district and the amount of water which each may take from the river decreed. In addition, some reservoirs have been built for storing the surplus waters which come down in times of flood, and this adds largely to the amount available for irrigation. The storage capacity of six of these reservoirs is shown to be 8,527,673,652 cubic feet. The significance and value of these reservoirs can be appreciated when we remember that the Arkansas, like many other streams, has its origin in the mountain districts of Colorado, and that, by the melting of the snows, almost every year there is a flood. The amount of water authorized to be taken by the ditches from the river is, as alleged in the bill, 4,200 cubic feet, and from its affluents and tributaries 4,300 feet. (Whenever this term is used in reference to the flow of water, it means the number of cubic feet that pass in a second.) The average flow of the river as it comes out of the Royal Gorge at Canon City is, as shown by official measurements for a series of years, 750 cubic feet. So that it appears that the irrigating ditches are authorized to take from the Arkansas River much more water than passes in the channel into the valley. It is not clear
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what surplus water, if any, comes out of the tributaries. There are some twenty-five of them, the average flow from four of which into the Arkansas is 313 cubic feet. Aside from this surplus water, some may be returned through overflow of the ditches or from seepage. What either of these amounts may be is not disclosed. Indeed, the extent to which seepage operates in adding to the flow of a stream, or in distributing water through lands adjacent to those upon which water is poured, is something proof of which must necessarily be almost impossible. We may note the fact that a tract bordering upon land which has been flooded shows by its increasing vegetation that it has received in some way the benefit of water, and yet the amount of water passing by seepage may never be definitely known. The underground movement of water will always be a problem of uncertainty. We know that, when water is turned upon dry and barren soil, the barrenness disappears, vegetation is developed, and that which was a desert becomes a garden. It is the magic of transformation; the wilderness budding and blossoming as the rose. The writer of this opinion recalls a conversation with Bayard Taylor, the celebrated traveler, in which the latter stated that nothing had contributed so much to secure the steady control of the French in Algiers as the fact that, after taking possession of that territory, they sank artesian wells on the borders of the desert, and thus reclaimed portions of it, for the Arabs believed that people who could reclaim the desert were possessed of a power that could not be withstood.
Further, adjacent barren ground is slowly but surely affected, and itself begins to increase its vegetation. We may not be entirely sure as to the methods by which this change is accomplished, although the result is undoubted. It may be that water percolating under the surface has reached this adjacent ground. Perhaps the vegetation, which we know attracts moisture from the air, may increase the rainfall, and thus affect the adjacent barren regions.
It appears that, prior to 1885, there was comparatively little
Page 206 U. S. 108
water taken from the Arkansas for irrigation purposes — certainly not enough to make any perceptible impression on the flow of the river — but about that time certain corporations commenced the work of irrigation on a large scale, with ditches some of which might well be called canals. Thus, in 1884, work was commenced on ditches capable of carrying off 450 cubic feet; in 1887, others capable of carrying off 1,481 cubic feet, and in 1890 still others, carrying 1,705 cubic feet. Most of these were completed within two years after the commencement of the several works. By the year 1902, according to the report of the Census Bureau of the United States, there were 300,115 acres, in 4,557 farms, actually irrigated.
The counties in Colorado from Canon City eastward through which the Arkansas runs are Fremont, Pueblo, Otero, Bent, and Prowers. The following tables prepared by the defendants from various census reports show the population, number of acres cultivated, and total value of farm products in these several counties for the years 1880, 1890, and 1900:
1880 1890 1900
Fremont 4,735 9,156 15,636
Pueblo 7,617 31,491 34,448
Otero 4,192 11,522
Bent 1,654 1,313 3,049
Prowers 1,969 3,766
—— —— ——
Making in the aggregate 14,006 48,121 68,421
Page 206 U. S. 109
County No. of acres cultivated Value of Farm Products
1880 1890 1900 1880 1890 1900
Fremont 16,160 52,868 109,488 $ 76,900 $237,980 $472,293
Pueblo 51,894 100,697 478,821 136,184 244,580 691,693
Otero 61,347 244,594 208,860 1,089,344
Bent 30,921 30,058 118,485 105,621 35,070 670,541
Prowers 46,447 217,332 60,500 465,688
—— ——- ——— ——– ——– ———-
98,975 291,417 1,168,720 $318,705 $786,990 $3,389,559
These tables disclose a very marked development in the population, area of land cultivated, and amount of agricultural products. Whatever has been effective in bringing about this development is certainly entitled to recognition, and should not be wantonly or unnecessarily destroyed or interfered with. That this development is largely owing to irrigation is something of which, from a consideration of the testimony, there can be no reasonable doubt. It has been a prime factor in securing this result, and before at the instance of a sister state, this effective cause of Colorado’s development is destroyed or materially interfered with, it should be clear that such sister state has not merely some technical right, but also a right with a corresponding benefit.
It may be asked why cultivation in Colorado without irrigation may not have the same effect that has attended the cultivation in Kansas west of where it was productive when the territory was first settled. It may possibly have such effect to some degree, but it must be remembered that the land in Colorado is many hundred feet in elevation above that in Kansas; that large portions of it are absolutely destitute of sod, and that cultivation would have comparatively little effect upon the retention of water. Add further the fact that the rainfall in Colorado is less than that in Kansas, and it would seem almost certain that reliance upon mere cultivation of the soil would not have anything like the effect in Colorado
Page 206 U. S. 110
that it has had in Kansas, and that the barrenness which characterized portions of the Territory of Colorado would have continued for an indefinite time unless relived by irrigation.
Turning to Kansas, the counties along the Arkansas River, commencing from the Colorado line, are: Hamilton, Kearney, Finney, Gray, Ford, Edwards, Pawnee, Barton, Rice, Reno, Sedgwick, Sumner, Cowley. Taking the same years as are given for the Colorado counties, the population is shown to be:
1880 1890 1900
Hamilton 168 2,027 1,426
Kearney 159 1,571 1,107
Finney 3,350 3,469
Gray 2,415 1,264
Ford 3,122 5,308 5,497
Edwards 2,409 3,600 3,682
Pawnee 5,396 5,204 5,084
Barton 10,318 13,172 13,784
Rice 9,292 14,451 14,745
Reno 12,826 27,079 29,027
Sedgwick 18,753 43,626 44,037
Sumner 20,812 30,271 25,631
Cowley 21,538 34,478 30,156
——- ——- ——-
104,793 186,552 178,909
We have been furnished by the United States Census Office with statistics of the corn and wheat crops of those counties from the years 1889 to 1904. Corn, wheat, and hay are the leading crops in Kansas. It would unnecessarily prolong this opinion to copy these tables in full, so we give the figures for 1890, 1895, 1900, and 1904:
Page 206 U. S. 111
ACRES BUSHELS ACRES BUSHELS
1890 Hamilton 80 400 449 6,636
Kearney 872 8,720 586 10,658
Finney 2,423 48,460 1,410 24,740
Gray 493 2,465 3,335 38,724
Ford 1,558 12,464 7,190 107,295
Edwards 2,058 20,580 8,876 168,094
Pawnee 544 2,720 39,464 591,402
Barton 3,666 25,662 99,738 1,294,639
Rice 27,460 329,520 52,941 792,345
Reno 98,972 989,720 35,121 351,210
Sedgwick 67,685 744,535 52,506 944,804
Sumner 19,120 267,680 134,352 2,149116
Cowley 63,391 887,474 28,073 282,666
——— ———- ——— ———-
Totals 288,322 3,340,400 464,041 6,762,329
1895 Hamilton 404 3,232 4,360 12,576
Kearney 914 5,698 2,917 6,430
Finney 2,058 20,580 27,428 69,801
Gray 1,115 11,150 12,297 12,309
Ford 12,145 194,320 36,626 109,914
Edwards 21,222 212,220 47,479 94,958
Pawnee 19,076 152,608 113,980 342,075
Barton 103,831 778,732 179,761 359,284
Rice 153,256 3,371,632 127,200 254,394
Reno 205,745 7,406,820 89,973 314,573
Sedgwick 190,646 5,147,442 93,351 279,711
Sumner 181,642 2,179,704 248,115 619,884
Cowley 133,745 2,674,900 89,866 673,822
——— ———- ——— ———-
Totals 1,025,799 22,159,038 1,073,353 3,149,731
1900 Hamilton 266 3,990 155 1,550
Kearney 538 11,298 506 5,492
Finney 1,213 18,195 427 4,234
Gray 2,001 30,015 4,023 59,605
Ford 11,215 145,795 23,416 444,904
Edwards 25,032 325,416 43,525 696,400
Pawnee 16,257 146,313 115,931 1,969,801
Barton 32,649 261,192 254,130 5,081,352
Rice 71,151 355,755 148,597 3,120,537
Reno 199,150 1,991,500 110,404 2,097,276
Sedgwick 153,635 2,766,430 123,339 2,589,811
Sumner 102,057 2,143,197 288,133 5,761,260
Cowley 121,398 2,792,154 79,948 1,439,064
——— ———- ——— ———-
Totals 736,562 10,991,250 1,192,534 23,271,286
Page 206 U. S. 112
1904 Hamilton 120 1,800 271 2,297
Kearney 306 6,120 536 6,244
Finney 759 7,590 7,012 37,382
Gray 1,579 25,264 17,268 69,590
Ford 10,631 170,096 72,917 365,299
Edwards 23,396 584,900 130,313 1,302,834
Pawnee 13,272 331,800 162,970 1,629,246
Barton 26,984 728,568 262,673 3,414,731
Rice 59,851 1,556,126 160,853 2,251,838
Reno 138,899 4,028,071 207,002 3,518,752
Sedgwick 132,374 3,441,724 151,635 1,971,255
Sumner 79,808 1,995,200 294,489 3,828,192
Cowley 109,708 2,962,116 68,477 821,652
——— ———- ——— ———-
Totals 597,687 15,839,375 1,536,416 19,219,312
Comparing the tables of population, it will be perceived that both the counties in Colorado and Kansas made a considerable increase in the years from 1880 to 1890; that, while the Colorado counties continued their increase from 1890 to 1900, the Kansas counties lost. As the withdrawal of water in Colorado for irrigating purposes became substantially effective about the year 1890, it might, if nothing else appeared, not unreasonably be concluded that the diminished flow of the river in Kansas, caused by the action of Colorado, had resulted in making the land more unproductive, and hence induced settlers to leave the state. As against this, it should be noted, as a matter of history, that in the years preceding 1890, Kansas passed through a period of depression, with crops largely a failure in different parts of the state. But, more than that, in 1889, Oklahoma, lying directly south of Kansas, was opened for settlement, and immediately there was a large immigration into that territory, coming from all parts of the West, and especially from the State of Kansas, induced by glowing reports of its great possibilities. The population of Oklahoma,
Page 206 U. S. 113
as shown by the United States census, was, in 1890, 61,834, and in 1900, 348,331.
Turning to the tables of the corn and wheat products, they do not disclose any marked injury which can be attributed to a diminution of the flow of the river. While there is a variance in the amount produced in the different counties from year to year, it is a variance no more than that which will be found in other parts of the Union, and although the population from 1890 to 1900 in fact diminished, the amount of both the corn and wheat product largely increased. Not only was the total product increased, but the productiveness per acre seems to have been materially improved. Take the corn crop, and per acre, it was, in 1890, 12 bushels and a fraction; in 1895, 21 and a fraction; in 1900, 15, and in 1904, 28 bushels. Of wheat, the product per acre in 1890 was nearly 15 bushels; in 1895, it was only about 3 bushels. (For some reason, while that was a good year for corn, it seems to have been a bad year for wheat.) But in 1900, the product per acre rose to 19 bushels, and in 1904 it was 12 bushels.
These are official figures taken from the United States census reports, and they tend strongly to show that the withdrawal of the water in Colorado for purposes of irrigation has not proved a source of serious detriment to the Kansas counties along the Arkansas River. It is not strange that the western counties show the least development, for, being nearest the irrigation in Colorado, they would be most affected thereby. At one time there, were some irrigating ditches in these western counties, which promised to be valuable in supplying water, and thus increasing the productiveness of the lands in the vicinity of the stream, and it is true that those ditches have ceased to be of much value, the flow in them having largely diminished.
It cannot be denied, in view of all the testimony (for that which we have quoted is but a sample of much more bearing upon the question), that the diminution of the flow of water in the river by the irrigation of Colorado has worked some
Page 206 U. S. 114
detriment to the southwestern part of Kansas, and yet, when we compare the amount of this detriment with the great benefit which has obviously resulted to the counties in Colorado, it would seem that equality of right and equity between the two states forbids any interference with the present withdrawal of water in Colorado for purposes of irrigation.
Many other matters have been presented and discussed. We have examined and fully considered them, but, as heretofore stated, we shall have to content ourselves with merely general observations respecting them. Evidence has been offered of an alleged underflow of the river as it passes through the State of Kansas, and it seems to be the contention on the part of Kansas that beneath the surface there is, as it were, a second river, with the same course as that on the surface, but with a distinct and continuous flow as of a separate stream. We are of the opinion that the testimony does not warrant the finding of such second and subterranean stream. If the bed of a stream is not solid rock, but earth, through which water will percolate, and, as alleged in plaintiff’s bill, the “valley of the river in the State of Kansas is composed of sand covered with alluvial soil,” undoubtedly water will be found many feet below the surface, and the lighter the soil, the more easily will it find its way downward, and the more water will be discoverable by wells or other modes of exploring the subsurface. Undoubtedly, too, in many cases there may be, corresponding to the flow on the surface, a current beneath the surface; but the presence of such subsurface water, even though in places of considerable amount and running in the same direction, is something very different from an independent subsurface river flowing continuously from the Colorado line through the State of Kansas. It is not properly denominated a second and subsurface stream. It is rather to be regarded as merely the accumulation of water which will always be found beneath the bed of any stream whose bottom is not solid rock. Naturally, the more abundant the flow of the surface stream and the wider its channel, the more of this subsurface water there will be. If
Page 206 U. S. 115
the entire volume of water passing down the surface was taken away the subsurface water would gradually disappear, and in that way the amount of the flow in the surface channel coming from Colorado into Kansas may affect the amount of water beneath the subsurface. As subsurface water, it percolates on either side as well as moves along the course of the river, and the more abundant the subsurface water the further it will reach in its percolations on either side, as well as more distinct will be its movement down the course of the stream. The testimony therefore given in reference to this subsurface water, its amount and its flow, bears only upon the question of the diminution of the flow from Colorado into Kansas caused by the appropriation in the former state of the waters for the purposes of irrigation.
Equally untenable is the contention of Colorado that there are really two rivers, one commencing in the mountains of Colorado and terminating at or near the state line and the other commencing at or near the place where the former ends, and, from springs and branches, starting a new stream to flow onward through Kansas and Oklahoma towards the Gulf of Mexico. From time immemorial, the existence of a single continuous river has been recognized by geographers, explorers, and travelers. That there is a great variance in the amount of water flowing down the channel at different seasons of the year and in different years is undoubted; that at times the entire bed of the channel has been in places dry is evident from the testimony. In that way, it may be called a broken river. But this is a fact common to all streams having their origin in a mountainous region, and whose volume is largely affected by the melting of the mountain snows. Thus, from one of complainant’s exhibits furnished by the United States Geological Survey, the mean monthly flow at Canon City at the mouth of the Royal Gorge for the years 1890, 1895, and 1900 is as follows:
Page 206 U. S. 116
Arkansas River-Canon City
Mean Monthly Discharge in Second Feet
1890 1895 1900
January 310 344 a 345
February 363 361 a 353
March 320 471 a 439
April 477 868 736
May 2,090 1,506 2,251
June 2,611 1,900 3,492
July 1,571 1,413 891
August 670 1,095 273
September 519 635 211
October 531 505 241
November 522 499 266
December 502 444 298
Doubtless the variance at different seasons of the year is more regular and more pronounced than in those streams whose sources are only slightly elevated and the rise and fall of whose waters is mainly owing to rains. Contrasting, for instance, the Hudson with the Missouri illustrates this. When the June flood comes down the Missouri River, it is a mighty torrent. One can stand on the bluffs at Kansas City and see an enormous volume of water, extending in width from two to five miles to the bluffs on the other side of the river, flowing onward with tremendous velocity and force, and yet at other times the entire flow of the Missouri River passes between two piers of the railroad bridge across the river at that point. No such difference between high and low water appears in the Hudson. In the days when navigation west of the Mississippi was largely by steamboats on the Missouri River, it was familiar experience for the flat-bottomed steamboats, drawing but little water, to be aground on sandbars and detained for hours in efforts to cross them. Gen. Doniphan commanded an expedition which marched from Fort Leavenworth, in 1846, up the Arkansas Valley and into the Territory of New Mexico. He did not enter the valley again until shortly before his death, in 1887, and, when asked what he recognized, replied that there
Page 206 U. S. 117
were one or two natural objects, like Pawnee rock, that appeared as they did when he marched up the valley; the river was the same, but all else was changed, and the valley, instead of being destitute of human occupation, was filled with farm houses and farms, villages and cities — something that he had never expected would be seen in his day.
Summing up our conclusions, we are of the opinion that the contention of Colorado of two streams cannot be sustained; that the appropriation of the waters of the Arkansas by Colorado, for purposes of irrigation, has diminished the flow of water into the State of Kansas; that the result of that appropriation has been the reclamation of large areas in Colorado, transforming thousands of acres into fertile fields, and rendering possible their occupation and cultivation when otherwise they would have continued barren and unoccupied; that, while the influence of such diminution has been of perceptible injury to portions of the Arkansas Valley in Kansas, particularly those portions closest to the Colorado line, yet, to the great body of the valley it has worked little, if any, detriment, and regarding the interests of both states, and the right of each to receive benefit through irrigation and in any other manner from the waters of this stream, we are not satisfied that Kansas has made out a case entitling it to a decree. At the same time, it is obvious that if the depletion of the waters of the river by Colorado continues to increase, there will come a time when Kansas may justly say that there is no longer an equitable division of benefits, and may rightfully call for relief against the action of Colorado, its corporations and citizens, in appropriating the waters of the Arkansas for irrigation purposes.
The decree which therefore will be entered will be one dismissing the petition of the intervener without prejudice to the rights of the United States to take such action as it shall deem necessary to preserve or improve the navigability of the Arkansas River. The decree will also dismiss the bill of the State of Kansas as against all the defendants, without prejudice to the right of the plaintiff to institute new proceedings whenever
Page 206 U. S. 118
it shall appear that, through a material increase in the depletion of the waters of the Arkansas by Colorado, its corporations or citizens, the substantial interests of Kansas are being injured to the extent of destroying the equitable apportionment of benefits between the two states resulting from the flow of the river. Each party will pay its own costs.
In closing, we may say that the parties to this litigation have approached the investigation of the questions in the most honorable spirit, seeking to present fully the facts as they could be ascertained from witnesses, and discussing the evidence and questions of law with marked research and ability.
MR. JUSTICE WHITE and MR. JUSTICE McKENNA concur in the result.
MR. JUSTICE MOODY took no part in the decision of this case.
‘AFFIDAVIT OF SUI JURIS/SOVEREIGN STATUS
DECLINATION OF STATE FRANCHISE”
Comes the undersigned, having declined the option of state franchise and the disabilities associated therewith and operating under the Law Merchant, Statute-at-Large, First congress, 1789, Section 1, Chapter 8, page 52; Articles of Confederation, Article 4-3-1, 1781; Arizona Motor Vehicle Code Title 28; Title 18 Section 241, 242. USC Title 42, Section 1983, 1985, 1986 inclusive of oath of ‘explicit’ affirmation as directed by UCC 1-0207-(3)(4).
Affiant enjoying absolute, unalienable liberty sustained by authority of the people as per the Bill of Rights Article X claims unhampered use of all navigable waters and all common law highways, roadways and by ways which are used for transportation, EITHER PRIVATE, PUBLIC OR COMMERCE, ANYWHERE IN THESE united States of America. Said driver-operator is sworn in obedience to the constitution for the United States and may be detained, only on sworn complaint of an injured party, pursuant to Bill of Rights Article !V, Rights in law are claimed and is not subject to the obligations in equity known as the Motor Vehicle code of the respective states.
Affiant may not be charged, nor held, nor directed into contract requiring licensing, registration and/or forced insurance as directed by and through any state legislature, city council, township commissioners or other legal fiction entity.
RIGHTS GUARANTEED THE SOVERIGN
“The words, people of the United States and citizen are synonymous terms and mean the same thing. They both describe the political body who, according to our Republican institutes, form the sovereignty and hold the power and conduct the government through their representatives. They are what we familiarly call the sovereign people and every citizen is one of thesr people and constituent member of the sovereignty.” (Dred Scott case)
The Siren (74 U.S. 152 (1868) relates the opinion as delivered by Justice Field:
“It is the doctrine of the common law, that the sovereign cannot be sued in his own court without his consent.”
Eleven years latter, in 1879, the court again addressed the issue of ‘sovereignty’ in the case of Hauenstein vs Lynham (100 U.S. 483). At issue was a treaty between the United States and Switzerland concerning land ownership in America by a citizen of Switzerland, Hauenstein, a citizen of Switzerland, held title to property in the City of Richmond. He died and the state moved under the laws of escheat to seize the property, claiming Hauenstein could not will his property to his heirs because they were ”Aliens”. The entire case rested on the treaty and the power of the people to make the treaty. The court stated:
“There can be no limitation on the power of the people of the United States; by their authority the State Constitutions were made, and by their authority, the constitution of the United States was established. Power to change or abolish the state constitution or to make them yield to the general government and to the treaties made by their authority.
In 1885, two more cases came before the supreme court involving the “sovereign”. In Yick Wo vs Hopkins and Woo Lee vs Hopkins (118 U.S. 356), Sheriff Hopkins had jailed Yick Wo and Woo Lee, depriving them of their personal liberty. On the issue of “sovereignty” the court stated:
“Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts.”
The cases cited above are just a few of the rulings made by the Supreme Court concerning the issue of “sovereignty”. Those cases are based upon Barron vs Baltimore (7 Peters 243) and later on Fairbanks vs United states (181 U.S.283) The court in all cases said:
“Powers denied are not to be implied; they are to be obtained, if at all, from and in the same manner provided by, those who originally granted the enumerated powers, but who at the same time denied powers.”
In 1909, in Kansas City vs Colorado (206 U.S. 46), the court clearly recognized the three “sovereigns” in the United states as the federal government, the state government and We The People.
The Tenth Amendment reads as follows:
“The power not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Therefore, if We the People, denied the power to the General Government, i.e. Congress. The power was either reserved to the People or delegated to the state.
Therefore, the sovereign remains the entity which governs his or her own rights. What does this have to do with the rights of an individual to drive? Please pay close attention to the case law presented.
KENT vs. DULLES 357 U.S. 116-125
(a) the right to travel is a part of the “liberty” of which a citizen cannot be deprived without due process of law under the Fifth Amendment.
(e) If a citizen’s liberty to travel is to be regulated, it must be pursuant to the law-making functions of Congress, any delegation of the power must be subject to adequate standards, and such delegated authority will be narrowly construed.
SUPREME COURT OF APPEALS OF VIRGINIA THOMPSON vs. SMITH 154 S.E. 579
6. Constitutional Law (note 82)
Citizen’s right to travel upon the public highways and transport his property thereon in the ordinary course of life and business is common right.
The right of a citizen so to do is that which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety.
7. Automobiles (note 4) Highways (note 168)
Citizen’s right to travel upon public highways includes right to usual conveyances of time, including horsedrawn carriage, and automobile, for ordinary purposes of life and business.
8. Municipal corporations (note 7030)]
Citizen’s right to travel upon public highways and usual conveyances in doing so is not mere privilege which city may permit or prohibit at will.
9. Municipal corporations [note 703(1)] 93 319166
City, in regulating, under police power, citizen’s right to travel upon public streets, may not arbitrarily or unreasonably prohibit or restrict it, nor prohibit one, and refuse another of like qualifications, under like conditions, to exercise it.
CHICAGO MOTOR COACH vs. CHICAGO 169 N.E. 22
8. Highways (note 165) – Legislature cannot deny citizen (he right to travel on highway and transport his property in ordinary course of business or pleasure.
No state entity has the power to deny passage on the highways, byways, nor waterways, transporting his vehicles and person, and property for either recreation or business, but by being subject to local regulations i.e., safety, caution, traffic lights, speed limits, etc. Travel is not a privilege requiring licensing, vehicle registration, or forced insurance.
SHEER vs. CULLEN 481 F. 945
“There can be no sanction or penalty imposed because of this Exercise of Constitutional Rights.”
…when a ticket (citation) is given, by law enforcement, for failure to maintain vehicle insurance, vehicle registration, or a State privileged “driver license”, which carries either a fine or confinement as a penalty or sanction, is in fact, a restriction of Rights, and in fact, is converting a citizen’s Rights into a crime.
MIRANDA vs. ARIZONA 384 U.S. 436, 491
“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
ASSERTION PURSUANT TO UCC 1-207
Affiant understands the need for a law enforcement body and agrees to abide by the directives set-forth wherein the Constitution of the United States is concerned, therefore maintains an affirmation of rights on his person that bears the entire title, section, and code by which his Constitutional authority is found.
This includes a notification to public servants. Such servants, giving no credence to such authority, and by doing so, violate USC Title 42, Sections 1983, 1985, 1986 under color of state statute, color of authority, conspiracy to interfere with civil rights, and are not exempted from prosecution individually and severally.
Affiant reasserts his individual sovereign rights, including the maintenance of individual documentation with “explicit” reservation of rights under penalty of perjury;
UCC 1-207:4, The Code provides that a notice expressly preserve his rights and protect them against danger of loss by waiver or estoppel if he makes an explicit reservation of such right. (13)
The Code states an “explicit” reservation must be made. “Explicit” undoubtedly is used in place of “express* to indicate that a reservation must not only be “express” but it must also be “clear” that such reservation was intended.
The Code does not impose any requirement as to the form of the reservation, other than it be explicit. From the nature of the circumstances under which the need for making a reservation might arise it is apparent that no requirement of a writing is imposed.(19)
LOCAL STATUTORY CITATIONS AND VARIATIONS
Performance or acceptance under reservation of rights is found in agreement to UCC 1-207, inclusive of ARS 47-1207 (formerly ARS 44-2214).
A party who with explicit reservation of rights performs or promises performance or assents to perform in a manner demanded or offered by the other party does not prejudice the rights reserved. Such words as “without prejudice”, “under protest” or the like are sufficient.
Added by Laws 1984, Ch. 77, Title 3 SUMMATION
The state may not require a person exercising their Freeman status, under proper title, section, and code, to maintain a state issued “drivers license”, vehicle registration, and forced vehicle insurance.
The state may not direct its law enforcement in the willful disregard of lawful travel under the appropriate code and section without becoming party to and be responsible the violation of Constitutional Civil Rights of the Sovereign Freeman.
The state may not legislate away the Constitutional rights of individuals, nor compel sovereign citizens to give up their rights nor perform under any contract, or agreement, that I have not entered into KNOWINGLY, VOLUNTARILY, WILLINGLY, AND INTENTIONALLY.
This EXPLICIT Reservation serves NOTICE upon ALL Administrative agencies: Federal, State, Local, or intergovernmental organizations.
1) I do not and will not accept the liability associated with and “compelled benefit” of any and all Commercial agreements.
2) That any alleged benefits that I may have received through franchise were received with EXPLICIT reservation of all my rights without prejudice.
NUNC PRO TUNC, this ________ day of _____________, in the year of our Christ 200_ .
I, John-Paul: Jones, state that the foregoing is true in substance and in fact to the best of my
knowledge and belief, and is made in good faith, and that this asseveration could be used as evidence, and that I have personal knowledge of the facts stated herein.
STATE OF ARIZONA COUNTY OF MARICOPA
. a notary public for the state of
hereby certify and affirm that the above named person(s) have appeared before me and declaring the execution thereof, being a true and correct document to the best of his/her own belief.
, Sui Juris
Subscribed and sworn/affirmed to before me this £ 4 day of
Notary Public – Sate of Arizona
My CtK«rt’is!oii Exerts AMS). 3), 1996, 1993.
Local Loan Co. v. Hunt – How cited292 US 234, 54 S. Ct. 695, 78 L. Ed. 1230 – Supreme Court, 1934 – Google Scholar
… First. The pleading by which respondent invoked the jurisdiction of the bankruptcy court in the
present case is in substance and effect a supplemental and ancillary bill in equity, in aid of
and to effectuate the adjudication and order made by the same court. …
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Shields v. Barrow – How cited58 US 130, 15 L. Ed. 158 – Supreme Court, 1855 – Google Scholar
… They were begun by a bill in equity, filed in the circuit court of the United States for the eastern
district of Louisiana, on the 19th of December, 1842, by Robert R. Barrow, a citizen of the State
of Louisiana, against Mrs. Victoire Shields, and by amendment against William Bisland …
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Moore v. New York Cotton Exchange – How cited270 US 593, 46 S. Ct. 367, 70 L. Ed. 750 – Supreme Court, 1926 – Google Scholar
… must state in short and simple form any counter-claim arising out of the transaction which is the
subject matter of the suit, and may, without cross-bill, set up any set-off or counter-claim against
the plaintiff which might be the subject of an independent suit in equity against him …
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Deckert v. Independence Shares Corp. – How cited311 US 282, 61 S. Ct. 229, 85 L. Ed. 189 – Supreme Court, 1940 – Google Scholar
… raised by the bill. “It is well settled that the granting of a temporary injunction, pending final hearing,
is within the sound discretion of the trial court; and that, upon appeal, an order granting such
an injunction will not be disturbed unless contrary to some rule of equity, or the result …
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Hawes v. Oakland – How cited104 US 450, 26 L. Ed. 827, 26 L. Ed. 2d 827 – Supreme Court, 1882 – Google Scholar
… This question answers itself, and without considering the other point raised by the demurrer, we
are of opinion that it was properly sustained, and the bill dismissed, because the appellant shows
no standing in a court of equity — no right in himself to prosecute this suit. …
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Pusey & Jones Co. v. Hanssen – How cited261 US 491, 43 S. Ct. 454, 67 L. Ed. 763 – Supreme Court, 1923 – Google Scholar
… After execution upon a judgment recovered at law has been returned unsatisfied he may proceed
in equity by a creditor’s bill. … But where a state statute relating to clouds upon title is held merely
to enlarge the equitable remedy, it will not support a bill in equity in the federal court. …
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Enelow v. New York Life Ins. Co. – How cited293 US 379, 55 S. Ct. 310, 79 L. Ed. 440 – Supreme Court, 1935 – Google Scholar
… The test under § 274b is whether the defendant could have maintained a bill in equity on the
same averments. … In all actions at law equitable defenses may be interposed by answer, plea,
or replication without the necessity of filing a bill on the equity side of the court. …
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Massachusetts v. Mellon – How cited262 US 447, 43 S. Ct. 597, 67 L. Ed. 1078 – Supreme Court, 1923 – Google Scholar
… Decided June 4, 1923. IN EQUITY. APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT
OF COLUMBIA. … The other was brought in the Supreme Court of the District of Columbia. That
court dismissed the bill and its decree was affirmed by the District Court of Appeals. …
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Rooker v. Fidelity Trust Co. – How cited263 US 413, 44 S. Ct. 149, 68 L. Ed. 362 – Supreme Court, 1923 – Google Scholar
… MR. JUSTICE VAN DEVANTER delivered the opinion of the Court. This is a bill in equity to have
a judgment of a circuit court in Indiana, which was affirmed by the Supreme Court of the State,
declared null and void, and to obtain other relief dependent on that outcome. …
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Phillips v. Commissioner – How cited283 US 589, 51 S. Ct. 608, 75 L. Ed. 1289 – Supreme Court, 1931 – Google Scholar
… discharge unpaid corporate taxes. Compare Pierce v. United States, 255 US 398.
Before the enactment of § 280 (a) (1), such payment by the stockholders could be
enforced only by bill in equity or action at law.  Section 280 (a …
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