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Show ARKANSAS RIVER LITIGATION 491 the acts of Congress of 1866 and subsequently, while recognizing the prior appropriation of water as in contravention of the common law rule as to a continuous flow, have not attempted to recognize it as rightful to that extent. In other words, Kansas contends that Colo- rado cannot absolutely destroy her rights, and seeks some mode of accommodation as between them, while she further insists that she occupies, for reasons given, the position of a prior appropriator her- self, if put to that contention as between her and Colorado. Sitting, as it were, as an international, as well as a domestic tribu- nal, we apply Federal law, state law, and international law, as the exigencies of the particular case may demand, and we are unwilling, in this case, to proceed on the mere technical admissions made by the demurrer. Nor do we regard it as necessary, whatever imperfections a close analysis of the pending bill m;iy disclose, to compel its amend- ment at this stage of the litigation. We think proof should be made as to whether Colorado is herself actually threatening to wholly ex- haust the flow of the Arkansas River in Kansas; whether what is described in the bill as the "underflow" is a subterranean stream flow- ing in a known and defined channel, and not merely water percolating through the strata below; whether certain persons, firms, and corpora- tions m Colorado must be made parties hereto; what lands in Kansas are actually situated on the banks of the river, and what, either in Colorado or Kansas, are absolutely dependent on water therefrom; the extent of the watershed or the drainage area of the Arkansas River; the possibilities of the maintenance of a sustained flow through the control of flood waters; in short, the circumstances, a variation in which might induce the court to either grant, modify, or deny the relief sought or any part thereof. The result is that in view of the intricate questions arising on the record, we are constrained to forbear proceeding until all the facts are before us on the evidence. Demurrer overruled, without prejudice to any question, and leave to answer. Mr. Justice Gray did not hear the argument, and took no part in the decision. Kansas v. Colorado 206 U.S. 46 (1907) On May 20,1901, pursuant to a resolution passed by the legislature of Kansas (Laws Kansas, 1901, chap. 425), and upon leave obtained, the State of Kansas filed its bill in equity in this court against the State of Colorado. To this bill the defendant demurred. After argument on the demurrer this court held that the case ought not to be disposed of on the mere averments of the bill, and, therefore, over- ruled the demurrer without prejudice to any question defendant might present. Leave was also given to answer. 185 U.S. 125. * * * * * * * On August 17, 1903, Kansas filed an amended bill, naming as de- fendants Colorado and quite a number of corporations, who were charged to be engaged in depleting the flow of water in the Arkansas |