OCR Text |
Show 60 flow had caused little if any detriment in Kansas.263 Accord- ingly, the Court refused to enjoin Colorado, saying:264 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 few years later, Wyoming sued Colorado to enjoin a pro- posed diversion of water out of the basin of the Laramie River which rises in Colorado and flows northward into Wyoming.265 After noting that both litigants adhered to the doctrine of prior appropriation, the Court stated: ^ We conclude that Colorado's objections to the doctrine of appropriation as a basis of decision are not well taken, and that it furnishes the only basis which is consonant with the principles of right and equity applicable to such a controversy as this is. The cardinal rule of the doctrine is that priority of appropriation gives superi- ority of right. Each of these States applies and enforces this rule in her own territory, and it is the one to which 263 206 U. S. at 113-114,117. 294 206 U. S. at 100. However, it was made clear that Kansas would be free to return to the Court for relief if Colorado's diversions increased to a point where Kansas might justly say that there is no longer an "equitable division of benefits." 206 U. S. at 117. In subsequent litigation between the two States, Kansas claimed that the water users in Colorado had in- creased their use and sought a decree allocating the flow of the Arkansas River. But relief was again denied on the ground that Kansas had failed to prove that the users in Colorado had so increased their use as to work serious detriment to users in Kansas. Colorado v. Kansas, 320 U. S. 383, 400 (1943). 245 Wyoming v. Colorado, 259 U. S. 419 (1922). 186 259 U. S. at 470. Compare Bean v. Morns, 221 U. S. 485 (1911) involv- ing a water-right dispute in which there was a prior appropriation in Wyo- ming and an alleged interference by diversion in Montana. There, the Court said, "We know no reason to doubt, and we assume, that subject to such rights as the lower State might be decided by this court to have, and to vested private rights, if any, protected by the Constitution, the State of Montana has full legislative power over Sage Creek while it flows within that State." 221 U. S. at 486. |