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Show this must necessarily be determined from a consideration of all the facts, conditions and circumstances surrounding the present and future necessities of the States in their use or consumption of the waters of the streams, and not from consideration of mere past or present uses by citizens of either State, whose rights at most are merely usufructuary and temporary and must always yield to the superior and sovereign power of the States to adapt the uses or consumption of the waters to future conditions and neces- sities* The rule to be applied, as determined by the Supreme Court in the above case, is thus stated by the late Mr. Kinney in his monumental work on water rights: "Therefore, as to the rights in and to the waters of inter- state streams the law of this case, summed up in a concise statement seems to be that each State through which an interstate river runs is entitled to make reasonable use of its waters, even to the extent that the state below must be damaged to a considerable extent thereby, provided the upper State does not divert the waters in excess of what will give it an equitable apportionment, all facts considered, of the benefits of the river, which apportionment is not confined to an equal diversion between the two States, or the respective States, of the entire natural flow of the stream." (Kinney on Irrigation aid Water Rights (2nd Ed.) Vol. Ill, p. 22l6e) This rule- of equitable apportionment is in harmony with the in- ternational principle applied between the United States and Mexico in the "Convention providing for the equitable distribution of the waters of the Rio Grande River for irrigation purposes" (Malloy-pB 1202), wherein the United States, although previously asserting title to all the waters of the river (see Supra pp. 2J4-27), retained all but an insignificant part of the waters of the stream, in view of the peculiar character thereof. The equitable distribution of the waters of interstate streams involves primarily questions of fact and we conclude discussion of this /- phase of the problem by again respectfully suggesting that an interstate '>-" comgact commission should be in a better position to arrive at an "equitable apportionment of the benefits between the two States from the flow of the river" than would "any court however constituted". CONCLUSION Without further discussion, it would appear that the Stabes possess the power, with the consent or approval of Congress, to conclude conventions with other States or with the United States, providing for .the regulation and the use and disposition of the waters of interstate streams? that when concluded by the States and approved by Congress suc!h compacts become the law of the land and may be enforced by the Supreme Court; that if it is not only the privilege but the duty of the States to reasonably exercise this power before resorting to the extreme measure of the substitute for war in the form of suits before the Supreme Court; . and that, except in extreme cases, the Court would be justified in enter- ing a rule requiring e preliminary showing of reasonable efforts to obta in |
