| OCR Text |
Show As observed by Mr, Justice Holmes: "But the Constitution would be. a narrow ground upon which to construct and apply to the relations between states the same system of municipal law in all its details which would be applied between individuals," (Mo, vs. 111., 200 U, Se I4.96, 520*) And in the language of Mr, Justice Brewer in Kansas vs* Colorado,, 206 U. S, I46: "The controversy rises,, therefore., above a mere question of local private right and in olves a matter of state interest, and must be considered from that standpoint0" (p. 99) "Turning to the enumeration of powers granted to Congress * - it ia enough to say that no one of them by any implication refers to the reclamation of arid land0 * * *No independent and unmentioned power passes to the National Government or can rightfully be exer.~ cised by Congress * * * each State has full jurisdiction over the lands within its bordersP including the beds of streams and other waters, * * *It may determine for itself whether the common law in respect to rpiarian rights or that doctrine which obtains in the ari; regions of the West of the appropriation of waters for the purposes of irrigation shall control.- Congress cannot enforce either rule upon any stater" (pp» 87-97,) "Nor is our jurisdiction ousted, even if, because Kansas and Colorado are States sovereign and independent in local mattersj, the relations between them depend in any respect upon principles of in- ternational law* International law is no alien in this tribunal * * * *In other words, through these successive disputes and decision? this court is practically building up what may not improperly be called interstate common law," (p* 99) While, the States of the Union as with Nations, the States vdth- in which, our rivers have their rise,, may properly assert their full and absolute dominion and their right to use and consume the waters, so rising within and forming a part of their territory, regardless of injury to the territory and citizens of lower States, and may deny all assertions or claims of foreign servitude upon their territory and natural resources, neverthele ss, for the peace and harmony of the Union, disputes between the States respecting the use, pollution or consumption of the waters of the streams-common to two or more States must be settled upon some basis which will assure to the lower State or States some benefit from the stream, while at the sane time preserving to the State or States of origin, in so fa.r as possible., their sovereign rights of use and consumption, ac- cording to their future conditions and necessities, end the exercise of eminent domain within their respective territories free from servitudes beyond their control,, In other words, either treaty co missions or the Supreme Court, in the language of Ilr, Justice Brewer in the above case, must malce an "equitable apportionment of the benefits between the two States resulting from the" flow ' of the river" (206 U, S. I46, 117), and |
