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Show NORTH PLATTE RIVER LITIGATION 765 Mr. Justice Roberts. I am unable to agree with the court's disposition oi this case. I think the decision constitutes a departure from principles long established and observed by the court in litigations between the states of the Union, and adopts a course diametrically opposed to our most recent adjudi- cation in the field of interstate waters.1 Without proof of actual dam- age in the past, or of any threat of substantial damage in the near future, the court now undertakes to assume jurisdiction over three quasi-sovereign states and to supervise, for all time, their respective uses of an interstate stream on the basis of past use, including, over a ten-year term, the greatest drought in the history of the region, admit- ting, in effect, that its allocation of privileges to the respective states will have to be revised and modified when that drought ceases and more water becomes available for beneficial use. I doubt if, in such interstate controversies, any state is ever entitled to a declaratory judg- ment from this court. I am sure that, on the showing in the present record, none of the states is entitled to a declaration of rights. The precedent now made will arise to plague this court not only in the present suit but in others. The future will demonstrate, in my judg- ment, how wrong it is for this court to attempt to become a continuing umpire or a standing Master to whom the parties must go at intervals for leave to do what, in their sovereign right, they should be able to do without let or hindrance* provided only that they work no substantial damage to their neighbors. In such controversies the judicial power should be firmly exercised upon proper occasion, but as firmly withheld unless the circumstances plainly demand the intervention of the court. Such mutual accommodations for the future as Nebraska and Wyo- ming desire should be arranged by interstate compact, not by litigation. Nebraska initiated this suit on the theory that Wyoming was divert- ing water under Wyoming appropriations junior to Nebraska appro- priations, which, at the time, were either receiving no water or an insufficient supply. Nebraska, in support of its position, attempted to prove the worth of an acre-foot of water for irrigation. But, of course, this is not the way to prove damage in such a controversy; water for beneficial use is what counts. No injury results from the deprivation of water unless a need is shown for that water for bene- ficial consumptive use at the time by the State claiming to have been wrongfully deprived of it. If water is not needed by downstream senior rights, the denial of water to upstream junior rights can result only in waste. No State may play dog in the manger, and build up reserves for future use in the absence of present need and present damage. Even on Nebraska's theory, she did not see fit to implead Colorado, obviously because she despaired of showing that anything Colorado was doing, or threatening presently to do, deprived her of any right. Wyoming impleaded Colorado not on the theory that Colorado was injuring Wyoming, or threatening so to do, but on the theory that there ought to be an apportionment of "rights" in the waters of the stream as between the three States-an advisory judgment on the subject. Colorado v. Kansas, 320 U.S. 383. |