OCR Text |
Show -89- the adoption of a legal system to govern irrigation, and the fact that stream irrigation has reached its furthest American development in many- respects in the Cache La Poudre District in this Sbate, will be general- ly conceded. In short, the subject in mind is of first importance to Colorado, and Colorado to the subject. The interstate controversy over irrigation water from a stream is , characteristically the complaint of a lower user against an upper-user on , the same stream. Certain results followc In the first place5 each stream is a separate controversy* and inasmuch as physical conditions are of pre- ponderating practical importance, the decision in no one stream is likely to control that in another* In the next place fi t he headwater state, being the only state whose increase of use can affect the other, is always on the defensive, with the familiar psychological advantages inherent in that attitude, and some practical advantages of position which are more con- spicuous before the conflict shapes* Finally, irrigation development is progressive upstream. That is to say, for various physical and human reasons which do not require analysis here, the extension of use* the elabo- ration of irrigation structures and the incidents of progress are mostly connected with the heads rather than the mouths of streams. This, tooj» has its consequences* The law is a stabilizer. In a field like irrigation, and particularly interstate irrigation (because, in this wide theatre of action, general and average tendencies become controlling factors), the law as a stabilizer is sure to be in oonstant friction with the unsettling tendencies of economic evolution. Irrigation conditions are constantly changing. Law assumes the c ontrary. Ir. short* in the situation which necessarily presents itself in interstate water litigation, the law is in one of least graceful and efficient roleso It must be undogmatic, and far- seeing if it hopes to be helpful at all, indeed to earn even respect. If the interstate water controversy is therefore usually the demand against an upper state by a lower state for water for irrigation which the upper state is diverting, through what avenues can this complainant get relief? As the several states of the Union are independent sovereignties (except as limited by their contract in the Constitution) we find the first suggestions of a remedy in international politics. War is the natu- ral conclusion of an unsettled international difficulty, but war is for- bidden between states of the Union, expressly and even more broadly by im- plication. The other accepted avenue of international adjustment has been treaty and diplomacy. This also is forbidden between states except with the consent of Congress., and no state maintains a diplomatic corps for ready use. The Supreme Court of the United States is* however, given juris- diction of controversies between states, and as will be seen;, it acts in this department as a sort of international Hague tribunal, adjusting almost any practical or "juridical" controversy. Finally, the lower Federal coizrts, partly because established as guardians of litigants whose claims may offend provincial prejudices* partly borrowing some jurisdiction from that thin volume called private international law, and partly assuming to assist tfreir great preceptor at Washington, in the wider phase of its business, have taken some jurisdiction of the subject where it arose between citizens of* the two States affected or where it seems to involve constitutional guaran- tees. This same jurisdiction theoretically belongs to the State courts, |