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Show ARKANSAS RIVER LITIGATION 519 Practically all of the affected Kansas ditches are in three western counties. Tables taken from the United States census show that, in 1899, acreage irrigated in these counties was 6% of that irrigated in the Colorado basin. In 1909 it was 7%, in 1929, 9.7%, and, in 1939, 10.7%. It seems that Colorado cannot have depleted the usable supply passing into Kansas if acreage under irrigation is any measure of depletion. Whatever may be said of the practices of Colorado since 1905, Kan- sas is not entitled to relief unless she shows they clearly have entailed serious damage to her substantial interests and those of her citizens. It is not necessary to quote the findings of this court made in the earlier case. We need only say they disclose that some ditches in western Kansas had been abandoned for lack of available water and all ditches were suffering from shortages of flow. The court pointed out that Colorado had authorized diversions in excess of the flow at Canon City. And the record in the present case indicates that, except for seep- age and return flow, the appropriations Colorado has authorized from the basin, as a whole, exceed the available dependable flow of the stream and its tributaries, and this appears to have been true also in 1901. It appears, nevertheless, that, since 1904, an increased quantity of usable water has passed the State line, for it is testified by Kansas' expert witness that, between 1895 and 1902, no divertible water passed the line and none between 1903 and 1907, except in 1903 and 1905, whereas in each year since 1908 divertible water has crossed the State line in varying quantities and, in most years, in substantial amounts. Kansas, however, insists that 414,000 acres in western Kansas are susceptible of successful irrigation, and much of this land would have been irrigated had Colorado not deprived Kansas of her equitable share of the flow. The evidence is that the acreage now irrigated in Kansas lies close to the river and along the river bottom. The land claimed to be susceptible of irrigation extends many miles from the bed of the river. We are asked to speculate as to how much of this land would have been put under irrigation under more favorable circumstances. As has been pointed out, despite Colorado's alleged increased deple- tion, the acreage under irrigation in western Kansas through existing ditches has steadily increased, over the period 1895-1939, from ap- proximately 15,000 acres to approximately 56,000 acres. Moreover, the arid lands in western Kansas are underlaid at shallow depths with great quantities of ground water available for irrigation by pumping at low initial and maintenance cost. There is persuasive testimony that farmers who could be served from existing ditches have elected not to take water therefrom but to install pumping systems because of lower cost. Again, there is serious question whether lands which are not riparian may divert the water from the stream for irrigation. In the earlier suit Kansas asserted,11 and the court held,12 that the common law pre- vailed in Kansas and governed the rights of riparian owners. It is true that the rule as to riparian rights has been expanded by the com- mon law of Kansas to permit a riparian proprietor reasonable use of 11 206 U.S. 51, 52, 58, 59, 60, 61. 12 Ibid, 95, 99, 102, 104. |
