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Show -95- river bottom and over distances which include sometimes several climatic zones. II. SETTLEMENT BY SUITS 3ETWH.EN PR1V1TE ?ER30NS. The second avenue of action for the adjustment of conflicts over rights to water on the same stream but diverted or used in different states by parties interested, is direct litigation between the persons affected in the nearest available tribunal- The resort to such a tribunal for re- lief seems obviously practical., and the alternative of state action impli--. octes ponderous machinery* the inertia of commonwealths, expense and an un- familiar or utterly unknown remedy. In spite of all this, the practice of settling interstate controversies between individuals is hard to justify logically and leads to awkv/ard situations. The courts have,, howevera dealt readily and frequently vdth such con- troversies i have said little about the interesting, broader problems in- volved in rendering private decrees across state lines and have almost universally adjudicated the claims involved by forgetting or erasing state lines. I find about twenty such suits printed in the law reports* in- volving nearly all the states with the appropriation doctrine and one or two interstate riparian cases. The principles can be conveniently sug- gested by dividing the cases into four types of situations. (a) The first type concerns a simjple case of priorities under the laws of different states on the same stream, whore both states recognize the priority doctrine and no adjustment has been made by the Supreme Court or by compact as between the sovereignties as parties. The courts, in- cluding the Supreme Court of the United States, have considered such cases and usually lightly ignored state lines and enforced the priorities as if they were all in the same jurisdiction. As Justice Holmes characteris- tically announced on one of these cases, no state can be presumed to commit suicide and he must therefore conclude the upper state intends its laws should recognize priorities in another state lower down3 else it suffers when the tables are turned and it appears in the role of the lower state on another stream, The difficulty with his epigram is that all states sire not geographically in any such position, or at least equally in the same position so that the trade balances. Several of the states have wrecked the presumption by repudiating any such policy and announcing by law or resolution that they did so. They survive their suicide. There are otJner technical and practical difficulties* The Supreme Court in all its river cases and notably in the two irrigation cr.ses has treated the rights of each state involved, in bulk as it were and has decreed or indicated a quantity division of water if any was to be made. The state agreements NT now pending all adopt the same system. Indeed, it is the most practical. *"' system for dividing a river. But a decree in a case between private persons which awards to an individual a priority claim is not only estab- lishing a wholly different system of distribution of the same v-ater between the two states, but is necessarily an adjudication of the relative righ"fcs of the plaintiff and other parties who divert from the same stream in t3ie lower state, but who are not before the court. Twenty different courts in at least four probable jurisdictions, namely two sets of state tribunals |
