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Show "As Colorado possessed the right only to an equitable share of the water in the stream * the decree of January 12* 1898, in the Colorado water proceeding did not award to the ditch company any right greater than the equitable share. Hence the apportionment made by the compact cannot have taken from the ditch company any vested right unless there was in the proceedings leading up to the compact or in its application some vitiating infirmity. No such infirmity or illegality has been shown.t! A recent decision, decided in April 1940, the State of Wyoming * com- plainant vs. the State of Colorado, defendant, (Advanced Opinions L. Ed« 725), should be noted here* The State of Wyoming sought leave to file its petition for a rule requiring the State of Colorado to show cause why it should not be adjudged in contempt for violation of former decrees in that suit, restraining diversions of water from the Laramie River. (259 U« S« 419* 496; 260 U. S» 1; 286 U. S. i}9Us 298 U« S* 573). There arose the question of whether the state had the right to control the use and distribution * within its borders, of that portion of the water which was allotted to the State by the earlier decisions of the Court* It was claimed by certain water users within the State of Colorado that the Court had, in addition to making an equitable apportionment of water between the two states, determined the amount which individual appropriators could take within the State of Colo- rado* If this contention had been sustained, it would have meant that tho Supreme Court of the United States exercised its jurisdiction to determine the use and distribution of water within the state irrespective of previous adjudication by decrees of the state court, However, the Court held in con- struing its former decisions* "* .* That it was neb intended to restrict Colorado in de- termining the use of water of the river, according to Colorado laws and adjudications, provided the diversions did not exceed the aggregate amount of 39*750 acre feet to which Colorado was entitled, is clear frcm the ruling upon another branch of the case." "* * The thing which the decree recognizes and confirms is !the right of the State of Colorado, or of anyone recogni- zecl by her as duly entitled there, . . . to divert and take* the water included in the designated appropriations." The Court observed that3 "* * it was not its purpose *tb withdraw water claims dealt with therein from the operation of local laws relating to their transfer or to restrict their utilization in ways not affecting the rights of one State and her claimants as against the other Sta.te and her claimants. rn There is now pending in the United States Circuit Court of Appeals, for -52- |
