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Show through nearly three decades and unlikely ever to be abandoned while the need for its continuance remains. 143 But it was soon to be demonstrated that the constitutional power of the United States over streams elsewhere than upon its own ¦¦public lands, for reclamation purposes, is either non-existent or dependent upon the consent of the States interested in such waters. On the same day that the United States Supreme Court rendered its now much-quoted decision holding that a State of the American Union, as a quasi- sovereign "has an interest independent of and behind the title of its citizens, in all the earth and air within its domain" together with "the last word" as to whether such air shall be polluted by the acts of an adjoin- ing State or its citizens, 1W+ the Court was also able to decide whether the United States, as intervener in a suit between Kansas -and Colorado over diversion of the waters of the Arkansas River, might assume control of that important water course without the consent of the States through which it flows, for the purpose of carrying on the federal reclamation policy. Kansas was contending that the river should flow down to valleys of that sovereignty in all the undiminished natural volume of the stream, regardless of the needs of Colorado for diversion from its upper reaches within that State; its: own decision, an amendment of the Constitution, or possibly an agree- ment between the States sanctioned by the legislature of the United States* •••• It may be imagined that a nuisance might be created by a State upon a navigable river like the Danube, which would amount to a casus belli for a State lower down, unless removed. If such a nuisance were created by a State upon the Mississippi the controversy would be resolved by the more peaceful means of a suit in this court. • • • Before this court ought to intervene the case should be of serious magnitude, clearly and full proved, and the principle to be applied should be one which the court is prepared deliberately to maintain against all considerations on the other side. . . It is a question of the first magnitude whether the destiny of the great rivers is to be the sewers of the cities along their banks or to be pro- tected against everything which threatens their purity. Missouri v» Illinois, 200 Uo Sc 1;96, 520-521; 26 Sup. Ct. 268, 269-270', 50 1... Ed.-572, 578-579 (1906). (Italics added.) ^^Act of June 17, 1902, c. 109$, Par. 1,32 Stat. at L, 388. ¦ ^The original reclamation act v,-as the Act of June 17/ 1902, o. 1093* •32 Stat. at L. 388; it isnovf, ,as amended, U»S«G. title 1+3* Par. 371 et seq. In Bxarley v. United States, 179 Fed. 1, 11, 33 L.R.A* (N.S.) 807, 815 (C»C. A. 9th Cir. 1910), aff'g 172 Fed. 615 (C.C. Idaho 1909), the court said; "The policy of reclaiming the: arid region of the r7est for a beneficial use open to all the people of the United. States is as much a national policy as the preservation of rivers and harbors for the benefit of navigation." The text of that decision fully supports such statement by the court. ^"Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 Sup..Ct. 618, 51 L. E<3.« IO38, 11 Ann. Cas • I4.88 (I907), where an injunction was ordered to issue stt the suit of Georgia to prevent this Tennessee corporation from polluting the air flowing from Tennessee ever into Georgia fey operation of a plant discharging sulphurous acid gas within, but near to the borders of, the |
