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expression of the poetical temperament of the man who prepared it,—that is, Mr. Eugene Ware, who is not only a lawyer but a poet-he has shown how the Common Law became attached to a part of this Western country and how, like a dove, it has floated, gradually, quietly and imperceptibly, from the wilds of Indiana until it located upon the crests of the Rocky Mountains. He shows that when Indiana was a Territory, when they had no Legislature, but the Governor and the judges made the laws for the territory, the Common Law was adopted as controlling in that then Territory. There were many things in this brief of which I confess I was ignorant, because they ran into a period of which, unless we are careful investigators, we have very little knowledge at the present day. But he shows that this principle of the Common Law was floated from Indiana Territory over the Louisiana Territory at the time of the purchase, and then over Missouri Territory and finally over Kansas Territory, by a single line in the Statutes, and that when it became a part of the law of the Territory of Kansas, what is now the State of Colorado, north of the Arkansas, was a portion of Kansas, and therefore the Common Law floated to the very tops of the Rocky Mountains.
In their brief which they filed against the demurer which was inter posed by the State of Colorado to their bill of complaint in the Supreme Court of the United States, they somewhat shifted their position, or rather attempted to occupy two positions. They then added this as a part of the ground upon which they claimed the right to interfere with our diversion of the water—that is, that according to the rules of the department, the Arkansaw was a navigable stream in Kansas, and also that it was a meandered stream, and that by reason of its being meandered the title of the adjoining land owner stopped at the meander line, and that therefore the river and its bed were made publici juris; that is, they were the property of the State of Kansas, and that therefore the State of Kansas, in its sovereign capacity, had such an interest in the bed and the flow of water that it could maintain its action. So that to-day it may be said that Kansas rests upon two grounds--one, the
doctrine of riparian rights as pertaining to private ownership of lands adjoining non-navigable streams; the other, the doctrine of riparian rights as pertaining to the ownership of the bed and flow of navigable streams. The peculiarity of this is that whichever position Kansas takes it destroys the other. They cannot exist together, because if it be true that it is a navigable stream, or that the meandering of it has the effect claimed by Kansas, then there are certainly no riparian rights at all in the adjoining land owners; whereas, if it is to be treated as a part of the sovereign property, then according to the principles of the Common Law to which they appeal in respect to private ownership, they have no right to question the flow of the stream, whether it is large or small, because, curiously enough, by the most recent decisions of the English courts, it has been several times held, on appeals from Canada and Australia and the provinces, that the ownership of the beds of rivers does not carry with it any right to the use of the waters; so that Kansas, unconsciously, if the question is ever presented, has hoisted herself by her own petard in applying Common Law rules and decisions to this feature of the case.
Now, while the Kansas case has not progressed far enough to determine whether there is a question presented in which the Federal Government is concerned, it is likely to go that far before it is finished, and we will then have the Government in still another attitude concerning the diversion of water in Colorado.
As you will notice in the paper prepared by Mr. Brown, he assumed that the enabling act and the Constitution of Colorado formed a compact between the State of Colorado and the Federal Government by which the streams of Colorado were turned over to and became the absolute property of the State of Colorado. If that be true, of course we may say that we can assert whatever rights we choose in the waters of the Arkansas river without respect to Kansas or appropriators in Kansas. But whether the General Government has lost full control of the streams is somewhat debatable. case decided in Montana by a Federal Court, an appropriator in Wyoming, who was prior in point of
time, was protected against an appropriator in Montana who was later in point of time. And the controversy between Kansas and Colorado may in the end resolve itself into a controversy between appropriators in Kansas and appropriators in Colorado. If so, then it would seem to involve some question of interstate streams and in some degree a question as to the extent to which the General Government still has a right to control the streams formerly a part of the public domain.
Now, this brings us to the theory which Colorado has advanced in her answer to the bill of complaint filed by Kansas.
The position which Colorado takes is that with the first settlement in the arid part of the United States, waters were diverted for agricultural and mining purposes, because without such diversion it would have been impossible to live in this country or to make the country productive of wealth; that the Government of the United States, although it was the owner of the lands and the streams, has, by consent and license, permitted the exercise of rights of diversion for mining and agricultural purposes; and that in 1866 the Congress of the United States not only ratified or approved such diversion, but accepted as the principle attached to the lands then belonging to the United States, in their then condition, and in the condition which they might thereafter present as subjects of private ownership, the doctrine of appropriation, and that the Government of the United States thereby declared the rights that might be obtained in the streams which belonged to it.
This is a quasi recognition of the right of the Government at all times in the public streams in the arid West; and if it be true that such right does exist, then the right of appropriation which is thus recognized, affirmed and approved and made a part of the laws of the United States so far as public lands and streams are concerned, must exist without any reference to State lines, because when the act of 1866 and all subsequent acts which were in the same direction were passed, it was not expressed by Congress, nor by the opinions of any of the departments, that these principles should have existence solely in certain States, nor in any one State
as against the interests of any other State, but rather that the doctrine was general wherever necessity required the diversion of water, and that neither the Congress of the United States nor the Supreme Court could know, so far as the diversion of water from the public streams was concerned, whether that diversion was made in Kansas or Colorado, and that if the first diversion were made in Kansas, as against an appropriator in Colorado, it would be entitled to relief in the Federal Courts.
If that be true, then the other question is presented, which has also been mooted, whether if these are to be treated as interstate streams, the Government of the United States has not, by that fact, a right of regulation, even as against anything which the States may do, except so far as any specific regulation by a State may have been approved by Congress.
So we lead up in that manner to the question, which is presented in concrete forun by the construction of the Gunnison tunnel, whether, when the Government of the United States comes into (Colorado, and diverts the waters, according to the theory of the bill making the appropriation, which undoubtedly was that the Government of the United States had an interest in such streams and should apply its moneys for the purpose of adding to their beneficial uses—whether, with these conditions presented, the Government of the United States may now claim, as against the State of Colorado, some measure of regulation and control of the streams in Colorado, at least so far as they tend to improve the water supply.
Now, it is to be said, in respect to what the Government has done up to date, that it has taken a position which is exactly contrary to that which has been laid down by our Legislature in what is known as the anti-royalty law. The anti-royalty law is an inhibition upon any person constructing a ditch exacting any bonus or consideration or sum of money whatever as a preliminary to having a right to divert water; that is, it is an interdiction upon the sale of water rights as water rights pure and simple—that is, the right to have water, subject to annual assessments, thereafter. And yet
the Government of the United States comes in and its first step is to require from the people who are to be benefited by this Gunnison experiment that they shall buy a water right upon practically the same terms that have been condemned by the Supreme Court, assuming, undoubtedly, that they have such an interest in the stream as to entitle them to make this a condition precedent to the right to receive water.
Now, I am not standing here for the purpose of solving any of these questions; that is for the courts. I can only present them, and you can take them home and deliberate upon them at your leisure.
We are ready to hear from any other member of the Association. If anybody wishes to gild the lily let him come forward.
K. R. Babbitt:
I would like to ask Mr. Rogers a question. Assuming that Kansas prevails on every point as stated in her bill of complaint, what sort of a decree would be entered by the Supreme Court?
Well, as the case now stands, there could be no effective decree entered, it seems to me, because it is purely against a State and not against an individual irrigator. Does that answer it?
K. R. Babbitt:
Well, that is more than I can answer, in the present state of the case.
I do not see that any decree can be entered except that the State of Colorado shall not pass laws regulating irrigation, be. cause, as now apparent in the issue, the State of Colorado is not itself an appropriator. It has no connection with appropriations except as it passes laws for the purpose of regulating the distribution of water; so that there is nothing in a decree which could be entered now which would restrain any individual from continuing to divert water.