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Show 620 INTERSTATE ADJUDICATIONS like questions between individuals is to be taken into account, it is not to be deemed to have controlling weight. As was shown in Kan- sas v. Colorado, 206 U.S. 46, 100, such disputes are to be settled on the basis of equality of right. But this is not to say that there must be an equal division of the waters of an interstate stream among the States through which it flows. It means that the principles of right and equity shall be applied haying regard to the "equal level or plane on which all the States stand, in point of power and right, under our constitutional system" and that, upon a consideration of the pertinent laws of the contending States and all other relevant facts, this Court will determine what is an equitable apportionment of the use of such waters. 'Wyoming v. Colorado, 259 U.S. 419, 465, 470. The development of what Mr. Justice Brewer, speaking for the Court in Kansas v. Colorado, 206 U.S. 46, 98, refers to as interstate common law is indicated and its application for the ascertainment of the relative rights of States in respect of interstate waters is illus- trated by Missouri v. Illinois, 200 U.S. 496; Kansas v. Colorado*, supra; Wyoming" v. Colorado, supra, and Wisconsin v. Illinois, 278 U.S. 367; 281 U.S. 179. Two of these cases are much like the one at bar. [The Court's discussion of Kansas v. Colorado, pp. 491ff ante, and Wyoming v. Colorado, pp. 66<5ff post, is omitted.] It is very clear that, under earlier decisions here, the strict rules for which Connecticut contends are not necessarily controlling in this case. There is nothing in the master's findings of fact to justify an inference that any real or substantial injury or damage will pres- ently result to Connecticut from the diversions by Massachusetts authorized by the Acts of 1926 and 1927 as limited and defined by the Secretary of War. No discussion is required as to the effect of the proposed diversion upon the navigability of the river, agriculture, fish life or pollution in Connecticut. The proposed taking of the waters of the Swift and Ware will not affect the present dam, works or production of power at King's Island. While the owning company has secured authority to build the higher dam, it has not resolved so to do. It is not found and there is nothing to show that it intends to construct any dam or works of a kind or capacity that, if now in use, would be injuriously affected by such diversion. At most there is a mere possibility that at some undisclosed time the owner, were it not for the diversion, might con- struct additional works capable of using all of the flow of the river including the waters proposed to be taken by Massachusetts. Injunc- tion will not issue in the absence of actual or presently threatened interference. The facts disclose no basis for relief in respect of that property. New York v. Illinois, 274 U.S. 488. New Jersey v. Sargent, 269 U.S. 328,331,338. Drinking and other domestic purposes are the highest uses of water. An ample supply of wholesome water is essential. Massa- chusetts, after elaborate research, decided to take the waters of the Ware and Swift rather than to rely on the sources in the eastern part of the Commonwealth where all are or are liable to become polluted. We need not advert to other considerations, disclosed by the evidence and findings, to show that the proposed use of the waters of the Ware and Swift should not be enjoined. |