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Show 670 INTERSTATE ADJUDICATIONS are as here disclosed." On full consideration it was broadly determined that a controversy between two States over the diversion and use of waters of a stream passing from one to the other "makes a matter for investigation and determination by this court" in the exercise of its original jurisdiction, and also that the upper State on such a stream does not have such ownership or control of the waters flowing therein as entitles her to divert and use them regardless of any injury or prej- udice to the rights of the lower State in the stream. And, on considera- tion of the particular facts disclosed and the local law of the two States, it was determined that Colorado was not taking more than what under the circumstances would be her share under an equitable apportionment. As respects the scope and interpretation of the ultimate conclusion in that case it should be observed, first, that the court was there con- cerned, as it said, with a controversy between two states, "one recog- nizing generally the common-law rule of riparian rights" and the other the doctrine of appropriation; secondly, that the diversion com- plained of was not to a watershed from which none of the water could find its way into the complaining State, but quite to the con- trary ; and, thirdly, that what the complaining State was seeking was not to prevent a proposed diversion for the benefit of lands as yet unreclaimed, but to interfere with a diversion which had been prac- ticed for years and under which many thousands of acres of unoccu- pied and barren lands had been reclaimed and made productive. In these circumstances, and after observing that the diminution in the flow of the river had resulted in "perceptible injury" to portions of the valley in Kansas, but in "little, if any, detriment" to the great body of the valley, the court said, "it would seem equality of right and equity between the two States forbids any interference with the present withdrawal of water in Colorado for purposes of irrigation;" and that, if the depletion of the waters by Colorado should be increased, the time would come when Kansas might "rightfully call for relief against the action of Colorado, its corporations and citizens in appro- priating the waters of the Arkansas for irrigation purposes." What was there said about "equality of right" refers, as the opinion shows (p. 97), not to an equal division of the water, but to the equal level or plane on which all the States stand, in point of power and right, under our constitutional system. Like that case the one now before us presents a controversy over the waters of an interstate stream. But here the controversy is between States in both of which the doctrine of appropriation has prevailed from the time of the first settlements, always has been applied in the same way, and has been recognized and sanctioned by the United States, the owner of the public lands. Here the complaining State is not seeking to impose a policy of her choosing on the other State, but to have the common policy which each enforces within her limits applied in determining their relative rights in the interstate stream. Nor is the United States seeking to impose a policy of its choosing on either State. All that it has done has been to recognize and give its sanction to the policy which each has adopted. Whether its public land holdings would enable it to go further we need not consider. And here the complaining State is not seeking to interfere with a diversion which has long been practiced and under which much rec- |