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John H. Fry:
I want to make one statement. I was not here at the time Mr. Bannister started to read his paper. I understood he made certain references concerning Judge Cavender's decision, which I think were somewhat erroneous. I was present in court at the time Judge Cavender rendered his decision. The contention of the Government in that case at that time was that their right to this water should date back to the time they declared their intenion to construct the Highline Canal.
This was another case, litigation of water rights in Water District 62, to which Mr. Bannister referred.
John H. Fry:
That was not the case?
No, that was not the case. I have the opinion here in the case to which Mr. Bannister referred.
John H. Fry:
I was going to say in that particular case I know the court held that the Government would have to proceed under the statutes of Colorado the same as any other proprietor or user of water. The only qualification was that reasonable time for the construction of a project of that magnitude might be greater than reasonable time for the construction of an ordinary project. If I was mistaken in the decision I want to correct it.
Thomas J. O'Donnell:
For the benefit of history, which we are making from time to time, I would like to ask the gentleman to give us an account of the Government's contentions in that case, whether, what I
should call offhand, the rainbarrel theory cut any figure in that decision, that the Government was entitled to this water because it fell upon its particular roof? (Laughter.)
I can answer that by stating that in the discussion of that subject by Mr. Ward in Water District No. 40 that doctrine was advanced, among others.
Thomas J. O'Donnell:
The case was not adjudged on that ground?
I can not state the exact reasoning upon which the Judge acted in announcing his decision. The decision, as I have it here in the decree, is that by virtue of departmental reservation of 1,300 second-feet of water, the United States was entitled to a decree.
Thomas J. O'Donnell:
By reason of certain things done by the United States it had acquired a priority and was entitled to have that priority adjudged ?
Thomas J. O'Donnell:
I wanted to ask Mr. Bannister what he has in mind in speaking of the equitable right of another State. I believe it was his fourth proposition in the conclusion, as to the equitable right of another State on an interstate stream. I have forgotten the exact language, but it was something like this, subject to the equitable right of the State, which, of course, must be the State lower down on the stream.
I will state my own view about that in this connection. My own idea is that, save what I regard as the impossible that the appropriation of water might inferfere with navigation which I believe was claimed in the Kansas-Colorado case to some extent-there is no such thing as an equitable right.
I believe, going back to the announcement of Judge Hallett, which has not been referred to in any of the discussion, in a very early case in our reports, the case of Yunker vs. Nichols, he declared that the common law with respect to riparian rights never should apply in this country, where we had, to use his quaint and unforgetable expression, "This dry and thirsty soil."
I think a mistake has been made on the part of some of those who have in times past and perhaps here now advocated, with very great zeal the rights of Colorado. I can not conceive that it is possible either on any principle of justice or any principle of law to say that an appropriator of water on any stream rising in this State can deprive an appropriator of water in any other State of his water by subsequent appropriation in this State, simply because we happen to be at the head of the stream.
I believe we have to plant ourselves upon the proposition ably announced by Mr. Haynes, and upon the statement of Judge Hallett, that there never was such a thing as riparian right in this arid country. By reason of the situation of the country the doctrine was inapplicable and never obtained. If that is true as to us then it is true as to every other State, and everybody must base his right upon priority of appropriation. Priority of appropriation and use must apply regardless of state lines. Of course it can only so apply as to interstate streams.
If Mr. Bannister has any idea that there is any equitable. right in any other State further than that, I should like to hear from him.
L. Ward Bannister:
Mr. O'Donnell asks what I understand the equitable appor
tionment of water to mean. I have referred to the language of Justice Brewer in Kansas vs. Colorado, in which he lays down the proposition that no matter what the system of any particular state may be, on an interstate stream, that state and its people can not deprive its neighboring State of an equitable portion of the waters of the stream. Under that doctrine, if we have two States adjoining, each with a priority system in force, each State or its people is entitled to a portion of the waters of that stream.
Mr. O'Donnell suggests that you could not possibly deprive the upper State of the water, and I say if the appropriators in the upper State are prior and those in the lower State are junior, the appropriators in the upper State are entitled to water, but they are not entitled to all of that water, even though they may have claimed and have applied to use all of the water. The opinion of Justice Brewer allows an equitable portion-he did not in fact discuss what that is to pass down to the lower State. On the other hand, if the appropriators in the lower State be prior and those in the upper State subsequent, then those in the upper State are likewise entitled to retain an equitable portion of that water.
Suppose that instead of having two States with a priority system you have two States one of which has a priority system, and the other a riparian system. Now, as I understand the doctrine. of equitable apportionments, the riparian State is entitled to an equitable portion of that water. After receiving it it will parcel it out under its own doctrine of riparian rights. The priority State is entitled to an equitable portion of the water and will parcel that portion out under the priority system.
It was held in the Beam case, by Justice Holmes, that where you have two States, as Wyoming and Colorado, both adopting the priority system, the question of equitable apportionment can not be raised at all, but that all controversies will be disposed of as if there were no state lines. But he distinguishes the case of a private controversy from one in which the States in their capacity as parens patriae are the plaintiff and the defendant, saying
that they are the States as such in their sovereign capacity, and regardless of the system maintained in either State may enforce a right to an equitable portion of the water, and getting that portion, the State may then do with it what it will.
Now, the question is what is that equitable portion. Justice Brewer does not inform us very accurately, but he says it is like the proportion that a riparian appropriator gets at common law. What does he get? It is whatever amount a reasonable use of the stream gives him. Justice Brewer went further and said in a case between states factors will be taken into consideration that are not taken into consideration in private controversy. For instance, in the Arkansas case he said that the question of whether rainfall in a lower State is increased by the irrigation in the upper State to a quantity greater than it would be without the irrigation, is a factor to be considered. It is a matter of determining what is reasonable between the two States in view of all the factors that logically bear upon it, and among those factors are larger ones than are attempted in private controversies.
That is my understanding of the doctrine of equitable apportionment.
There are two other points to which I want to make brief reply to Mr. Haynes, to prevent misconstruction of my paper. He took the paper as stating that historically the first time the doctrine of priority ever appeared was in the west of the United States.
I did not say that and did not mean that. I said that the doctrine was indigenous in the United States, meaning by that that it had no historical connection with the doctrine, if that doctrine ever prevailed elsewhere. The pine tree is indigenous to Colorado; it is indigenous to Norway. But the fact that it may have existed in Norway first does not make it any the less indigenous here. And so it is with the priority doctrine. When we get dowu to the study of comparative law of the world I do not pretend tɔ say where the priority doctrine first appeared. Indeed I do not