OCR Text |
Show navigation and possibly some right to prevent total diversion of the natural flow away from the riparian public lands of the United States.^5 While the • Reclamation Aot^+5a ias making its journey from the halls of Congress to the' Supreme Court, other events of importance in the adjustment of sovereign rights in American waters were happening or portending* In determining judicially the water boundary line, state jurisdiction, and rights of fishery in the waters at the mouth of the Mississippi River ^-J-" the Supreme Court declared that "the principle of the thalweg.is applicable in respect of water boundaries, to sounds, bays, straits, ^ulfs, estuaries, and other arms of the sea"; discussed at length the application of this principle of international law to water boundaries between the States and II4.5 Significant phrases in the opinion in Kansas y. Colorado, 206 U*S* U6y 27 Sup. Ct. 655, 51 L. Ed. 956 (1907), include the following: "It follows from this that if, in the present case, the national government was asserting as against either Kansas or Colorado, that the appropriation for the purposes of irrigation of the waters of the Arkansas was affecting the navigability of the stream, it would become our duty to determine the truth of the charge. • . It (i*e» each State) may determine for itself whether the common law rule in respect to riparian rights or that doctrine which obtains in the arid regions of the Lest of the appropriation of waters for the purposes of irrigation shall control. Congress cannot enforce either rule upon any state. . * Neither state can legislate for, or impose its own. policy upon the other. . . As Congress cannot .make compacts between the states, as it. cannot, in respect to certain matters, by legislation compel their separate action, disputes between them must be settled either by force or else by appeal to tribunals empowered to determine the right and wrong thereof. Force, under our system of government is eliminated. • • International lav; is no alien in this tribunal* One cardinal rule, under- lying all the relations of the states to each other, is that of equality of right. Each state stands on the sane level v/ith all the rest. * . But the appropriation of the entire flow of the river (by Colorado) would naturally tend to make the lands along the stream in Kansas less arable. It would be taking from the adjacent territory that which had been customary natural means of preserving its arable character. • « Colorado could not be upheld in appropriating the entire flow of the Arkansas river, on the ground that it is willing to give, and does give, to Kansas, something else which may be considered of equal value. That would be equivalent to this , court!s making a contract between the two states, and that it is not authorized to do. . • It cannot be denied. . . that the diminution of the flow of water.in the river by the irrigation of Colorado has worked some detriment to the south- western part of Kansas, and'yet, when we compare the amount of this detri- ment with the great benefit which has obviously resulted to the counties in Colorado, it would seem that equality of right and equity between the two states forbids any interference with the present withdrawal of water in Colo- rado for purposes of irrigation*" Compares Jackson v. United States, 230 U.S, 1, 33 SUp. Ct. 1011, 57 L. |