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Show The Attorney General of Colorado then took an appeal from the decision of the Colorado State Supreme Court to the U. S. Supreme Court, but the latter tribunal refused to take jurisdiction on the ground that at that time there was no final judgment in the trial Court from which the appeal could be taken. 57 Thereafter the matter was returned to the trial Court, where a new judge was presiding and, upon a stipulation that the evidence in the first trial should be considered as the record in the second hearing, a judgment was en- tered in harmony with the views expressed by the State Supreme Court. This commanded the water administrative officials to regulate the headgate of the ditch company so as to permit it to receive the water, to which it was entit- led under its decree from the State Court* at all times, without reference to the provisions of the Compact. The water-administrative officials then prosecuted a writ of error to the Supreme Court of the State of Colorado which reaffirmed its former de- cision, with certain explanatory observations and statements tending to strengthen and support its original position.58 The case then went to the Supreme Court of the United States, on appeal a second time, and was argued before that Court on February 10 and February 11, 1938* Colorado*s Constitution dedicates the use of all unappropriated v/aters in the natural streams of the State to the people, and expressly declares that the water is the property of the public. Under this doctrine, Colo- rado had always claimed the right to divert the entire flow of any stream rising v/ithin its borders, regardless of the claims of sister States and their residents. In the oases of Kansas vs. Colorado59 and Wyoming vs. Colorado,60 the Supreme Court of the United States held that this constitu- tional provision did not give to Colorado the ownership of all the water flowing within its borders, but expressly announced the doctrine that eveiry State upon an interstate stream is the owner of an equitable portion of tlie flow of the stream, which the other States are bound to recognize and res- pect. This doctrine has been announced by the Supreme Court on numerous occasions since that time. The defendant water-administrative officials took the position that "the equitable apportionment which had been effected by the La Plata Compact determined the limit of the water to which Colorado and its citizens were entitled, and that the title of any water users in Colorado was necessarily limited by the rights of New Hexico. In other words, it was contended thet no vested right of any Colorado water user was invaded when New Mexico received only the quantity to which it was entitled by the terms of the Com- pact. Of necessity, water delivered to New Mexico under the terms of the Compact was water which no Colorado appropriator might acquire under a decree from a Colorado Court. 57ninderlider et al. vs. La Plata River Cherry Creek Ditch Company, 251 U. S. 650, 5I4 S, Ct. Rept. 557. 58JHinderlider et al. vs. La Plata River Cherry Creek Ditch Company, 101 Colorado 73» 59Kansas vs. Colorado, 206 U. S. 100. 60Wyoming vs. Colorado, 259 U, S» Wk -109- |
