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Show NORTH PLATTE RIVER LITIGATION 741 We say of this case, as the court has said of interstate differences of like nature, that such mutual accommodation and agreement should, if possible, be the medium of settlement, instead of invocation of our adjudicatory power." But the efforts at settlement in this case have failed. A genuine controversy exists. The gravity and importance of the case are apparent. The difficulties of drafting and enforcing a decree are no justification for us to refuse to perform the important function entrusted to us by the Constitution. Those considerations did not prevail in Wyoming v. Colorado, supra, where an apportionment of the waters of an interstate stream was made. Nor did they prevail in the drainage canal cases. Wisconsin v. Illinois, 278 U.S. 367, 281 U.S. 179, 309 U.S. 569, 311 U.S. 107, 313 U.S. 547. And see Sanitary District v. United States, 266 U.S. 405. We do not believe they should prevail here. We recognize the difficulties of the problem. The matter is a delicate one and extremely complex. To begin with we are confronted with the problem of equitable apportionment. The Special Master recom- mended a decree based on that principle. That was indeed the principle adopted by the Court in Wyoming v. Colorado, supra, where an apportionment of the waters of an interstate stream was made be- tween two States, each of which had the rule of appropriation. In speaking of that rule in application to a controversy between States the Court, through Mr. Justice Van Devanter, said: "The cardinal rule of the doctrine is that priority of appropriation gives superiority of right. Each of these States applies and enforces this rule in her own territory, and it is the one to which intending appropriators nat- urally would turn for guidance. The principle on which it proceeds is not less applicable to interstate streams and controversies than to others. Both States pronounce the rule just and reasonable as applied to the natural conditions in that region; and to prevent any departure from it the people of both incorporated it into their constitutions. It originated in the customs and usages of the people before either State came into existence, and the courts of both hold that their constitu- tional provisions are to be taken as recognizing the prior usage rather as creating a new rule. These considerations persuade us that its application to such a controversy as is here presented cannot be other than eminently just and equitable to all concerned." 259 U.S. p. 470. And see Wyoming v. Colorado, 286 U.S. 494; Washington v. Oregon, 297 U.S. 517, 526. Since Colorado, Wyoming, and Nebraska are appropriation States, that principle would seem to be equally appli- cable here. That does not mean that there must be a literal application of the priority rule. We stated in Colorado v. Kansas,^ supra, that in deter- mining whether one State is "using, or threatening to use, more than its equitable share of the benefits of a stream, all of 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." 320 U.S. p. 394. That case did not involve a controversy between two appropriation States. But if an allocation between appropriation States is to be just and equitable, strict adherence to the priority rule may not be possible. For example, the economy of a region may have been established on the basis of junior appropriations. So far as possible those established uses should be protected though strict application of the priority rule |