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Show ARKANSAS RIVER LITIGATION 5.1-7... The controversy was litigated in 1901. Kansas was denied relief in 1907. The dispute between appropriators in the two States was brought into court in 1910 and settled in 1916. The Finney County Association sued Colorado lappropriators in 1916 and 1923. Even if Kansas' claims of increased depletion and ensuing damage are taken at face value, it is nevertheless evident that while improvements based upon irrigation went forward in Colorado for twenty*one years, Kansas took no action until Colorado filed the instanl complaint in 1928. These facts might well preclude the award of the relief Kansas asks. But, in any event, they gravely add to the burden she would otherwise bear, and must be weighed in estimating the equities of the case.9 The Master concludes that there has been a material increase in depletion by Colorado, a consequent diminution of flow across the state line^ and injury to the substantial interests of Kansas. His re- port does not state what1 he considers material; or the extent of the diminution of flow; or the interests of Kansas which have been in- jured and the extent of the injury. We must, therefore, turn to the evidence to resolve the issues, Kansas asserts that since the decision of Kansas v. Colorado, suprar Colorado has increased her consumptive use of the water of the Arkan- sas River by an annual average of between 300,000 and 400,000 acre feet. Witnesses so testified and, to support their conclusions, sub- mitted elaborate calculations and analyses exhibiting the alleged total water supply of the river basin in Colorado and the alleged amount of water passing in the bed of the stream across the state line. A witness submitted tables covering the period 1895-1930 from which he deduced an average yearly water supply of 1,240,000 acre feet and an average annual dependable supply of 1,110,000 acre feet. He pre- sented figures to show that Colorado's consumptive use had increased to the extent of an annual average of 300,000 acre feet. He reached this result by using estimated flow across the state line between 1895 and 1908 and measured flow between 1908 and 1930, during which period a gauging station was maintained at Holly near the line. Measurements indicate that, during the latter period, the average annual state line flow was 260,700 acre feet.10 If, as claimed, this flow remained after an additional average annual depletion of 300,000 acre feet by Colorado, the average annual flow in the earlier period, 1895 to 1908, would neces- sarily have been greater by 300,000, or would have averaged 560,700 acre feet. The witness' own exhibit shows that he assumed an average annual state line flow for the period 1895-1899 of 300,000 acre feet, for 1900-1904, of 470,000 acre feet, and, for 1905-1909, of 454,000 acre feet, or an annual average over the total period, 1895-1909, of 408,000 acre feet. On his own estimates the claimed average annual depletion of 300,000 acre feet could not have taken place. Moreover, the force of this evidence is weakened by Kansas' allegations in Kansas v. Colorado, supra. In her bill in that case she alleged Colorado had totally destroyed the normal flow of the river exclusive of floods whereas she now asserts that the flow at the time of the earlier suit was such that Colorado has been able to deplete it on an annual average of 300,000 acre feet. 9 Washington v. Oregon, 297 U.S. 517, 526. 10 In computing average annual flows, flood waters are included in the reckoning. As later shown, such annual averages do not represent the quantities of water usable by diversion ditches for irrigation. |