OCR Text |
Show -9hr interstate water disputes* Some observations which are more in detail should be recorded? (a) These controversies are juridical in character and therefore ap- propriate subjects for the jurisdiction of that court* (b) The court usually has been reluctant and cautious in its move- ments c (c) The court as between states has expressly required a degree of certainty in proof by the complainant beyond that fixed for ordinary civil controversies9 and practically equivalent to that used in criminal cases. (d) The court has usually and in its most successful cases abandoned ordinary juristic conceptions, and placed itself on the broadest field of state sman ship. (e) In spite of having decided a number of important river cases, the court has not built up any scheme or system of judicial principles applica- ble to them, as a guide to decision except in the disputed case.of uyoming vs. Colorado* supra* (f) While it is of primary importance in ordinary litigation that a set of" principles be developed and followed, the first purpose of ordinary law being the promulgation of a code of conduct which shall be certain even before being just, these principles do not apply to the function of the court as an arbiter of these broad issues of interstate economy, so that failure to construct a permanent framework of principles is not to be criti- cized* ( g) The court early in its history has difficulty in determining to enforce its judgmentss but it has in later cases used all the ordinary judicial machinery of enforcement, including mandatory ajid declaratory de- creesj injunctions, receivers and commissioners, so it vdll unquestionably find ways to enforce interstate water judgmentse (b.) Inasmuch as the basis of decision in the peculiar class of con- troversy..is economic rather than legalistic^ the court should be given the deepesi: insight into the actual physical conditions and economic questions in eveiry litigation. (i) The freedom of individuals to litigate in other courts as between themselves over right to water within different states, but upon the same stream,, has had no adequate discussion. Some suggestions will be made be- low under this heading as a principal topic. (3) It is in the forefront of the mind of every lawyer who considers irrigation cases before the Supreme Court that the court has no real con- ception, of the irrigation conditions. It scarcely realizes the fact that our stireams are fragile threads of water in a waste of sand bottoms^ scarcely continuous streams at all, and that our administration of prior- ities is merely a crude approximation over long stretches of sand-blown |