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Show ARKANSAS RIVER LITIGATION 515 mended allocation, but insists that the decree require Colorado to deliver the quantity of water awarded to Kansas when and as de- manded by her. Colorado asserts that the recommended decree- much more Kansas' proposed amendment-would entail serious and unjustified damage to her interests, if indeed compliance with its terms were possible. In respect to the third question, the Master finds: "There has been since the taking of testimony in the case of Kansas against Colorado cited in 206 U.S. 46, in 1907, a material increase in the river depletion by Colorado of the water supply of the Arkansas River, which has been consumed and used by Colorado users for irri- gation purposes and which has diminished the flow of the water into the State of Kansas and that by reason thereof there have been injuries to the substantial interests in Kansas." No exception is taken.--to¦the Master's recommendation that an in- junction issue against further prosecution of the Finney County Association suits against Colorado users. In our view such an injunc- tion is appropriate, and should be granted. Colorado urges that our decision in Kansas v. Colorado, supra, amounted to an allocation of the flow of the Arkansas River between the two States. We cannot accept this view. In that case Kansas labored under a burden of proof applicable in litigation between quasi-sovereign states, of which more hereafter. The dismissal of her bill resulted from the conclusion that she had failed to sustain the burden. But from the decision then rendered it follows that unless Kansas can show a present situation materially different from that disclosed in the earlier ease she cannot now obtain relief. The prayer of Kansas for an apportionment in second feet or acre feet cannot be granted. In our former decision we ruled that Kansas was not entitled to a specific share of the waters as they flowed in a state of nature, that it did not then appear that Colorado had ap- propriated more than her equitable share of the flow, and that if Kansas were later to be accorded relief, she must show additional takings working serious injuries to her substantial interests. This was in accord with other decisions in similar controversies.2 The reason for judicial caution in adjudicating the relative rights of States in such cases is that, while we have jurisdiction of such dis- putes,3 they involve the interests of quasi-sovereigns, present compli- cated and delicate questions, and, due to the possibility of future change of conditions, necessitate expert administration rather than judicial imposition ox a hard and fast rule. Such controversies may appropriately be composed by negotiation and agreement, pursuant to the compact clause of the federal Constitution. We say of this case, as the court has said of interstate differences of like nature, that such mutual accommodation and agreement should, if possible, be 3 See the cases in notes 3, 4 and 6 infra. In New Jersey v. New York, 283 U.S. 336, 347, the prayer of Pennsylvania for such an allocation was denied. Wyoming v. Colorado, 259 U.S. 419, is not an exception. As it happened, the doctrine of appropriation had always prevailed in each of the States there concerned and furnished the most appropriate and accurate measure of their respective rights of appropriation of the flow of the Laramie River. It was, therefore, possible in enforcing equitable apportionment, to limit the amount of water which Colorado might, without injury to Wyoming's interests, divert to another water shed, to an amount not exceeding the unappropriated flow. 3 Missouri v. Illinois, 180 U.S. 208; Kansas v. Colorado, 206 U.S. 46, 95, 96. |
