OCR Text |
Show 516 INTERSTATE ADJUDICATIONS the medium of settlement, instead of invocation of our adjudicatory power.4 It follows that the Master erred in attempting to divide what he designated as the "average annual dependable" water supply of the Arkansas River in Colorado into fractions and awarding those frac- tions to the States respectively. Such a controversy as is here pre- sented is not to be determined as if it were one between two private riparian proprietors or appropriators.5 The lower State is not entitled to have the stream flow as it would in nature regardless of need or use.6 If, then, the upper State is de- voting the water to a beneficial use, the question to be decided, in the light of existing conditions in both States, is whether, and to what extent, her action injures the lower State and her citizens by depriv- ing them of a like, or .an equally valuable, beneficial use.7 We come now to the vital question whether Kansas has made good her claim to relief founded on the charge that Colorado has, since our prior decision, increased depletion of the water supply to the material damage of Kansas' substantial interests. The question must be an- swered in the light of rules of decision appropriate to the quality of the parties and the nature of the suit. In such disputes as this, the court is conscious of the great and serious caution with which it is necessary to approach the inquiry whether a case is proved. Not every matter which would warrant resort to equity by one citizen against another would justify our inter- ference with the action of a State, for the burden on the complaining State is much greater than that generally required to be borne by private parties. Before the court will intervene the case must be of serious magnitude and fully and clearly proved.8 And in determining whether one State is using, or threatening to use, more than its equi- table share of the benefits of a stream, all the factors which create equities in favor of one State or the other must be weighed as of the date when the controversy is mooted. On this record there can be no doubt that a decree such as the Master recommends, or an amendment or enlargement of that decree in the form Kansas asks, would inflict serious damage on existing agricultural interests in Colorado. How great the injury would be it is difficult to determine, but certainly the proposed decree would operate to deprive some citizens of Colorado, to some extent, of their means of support. It might indeed result in the abandonment of valuable improvements and actual migration from farms. Through practice of irrigation, Colorado's agriculture in the basin has grown steadily for fifty years. With this development has gone a large in- vestment in canals, reservoirs, and farms. The progress has been open. The facts were of common knowledge. * See Washington v. Oregon, 214 U.S. 205, 218 ; Minnesota v. Wisconsin, 252 U.S. 273, 283 ; New York v. New Jersey, 256 U.S. 296, 313. Compare the Colorado River Compact of Nov. 24, 1922, authorized by Act of August 19, 1921, 42 Stat. 171, and dismissed in Arizona v. California, 292 U.S. 341, 345; and compare Hinderlider v. La Plata River Co., 304 U.S. 92. 5 Kansas v. Colorado, supra, 100. 6 Kansas v. Colorado, supra, 85. 101-102 ; Connecticut v. Massachusetts, 282 U.S. 660, 669-670 ; Washington v. Oregon, 297 U.S. 517, 523, 526. 7 Cases cited in Note 8. 8 Missouri v. Illinois, 200 U.S. 496, 520-521 ; New York v. New Jersey, 256 U.S. 296, 309 ; North Dakota v. Minnesota, 263 U.S. 365, 374 ; Connecticut v. Massachusetts, 282 U.S. 660, 669 ; Alabama v. Arizona, 291 U.S. 286, 292 ; Washington v. Oregon, 297 U.S. 517, 522. |