position, while the manifest importance of the case and the propositions of law can be satisfactorily dealt with, lead us to the conclusion that the cause should go to issue and proofs before final decision.1 The Chief Justice next considers the question of pleading, stating that, even in private suits, a court is unwilling to sustain a demurrer if the question be doubtful, and therefore overrules the demurrer with leave to answer, so that the entire case may be before it—a course followed by the court in this case. The question was one whereof the tribunal had jurisdiction, and although some of the prayers contained in the complaint were open to objection, nevertheless the prayer for general relief would, even if the special prayers were to be rejected, allow the court to grant such relief upon the general prayer as the facts put in issue would justify. Thus, he says: affirmed. Without subjecting the bill to a minute criticism, we think its averments sufficient Jurisdicto present the question as to the power of one State of the Union to wholly deprive tion another from the benefit of water from a river rising in the former, and, by nature, flowing into and through the latter, and that, therefore, this court, speaking broadly, has jurisdiction. We do not pause to consider the scope of the relief which it might be possible to accord on such a bill. Doubtless the specified prayers of this bill are in many respects open to objection, but there is a prayer for general relief, and under that, such appropriate decree as the facts might be found to justify, could be entered, if consistent with the case made by the bill, and not inconsistent with the specified prayers in whole or in part, if that were also essential. Tayloe v. Merchants' Insurance Company, 9 How. 390, 406; Daniell, Ch. Pr. (4th Am. ed.) 380. Advancing from the preliminary inquiry, other propositions of law are urged as fatal to relief, most of which, perhaps all, are dependent on the actual facts. The general rule is that the truth of material and relevant matters, set forth with requisite precision, are admitted by the demurrer, but in a case of this magnitude, involving questions of so grave and far-reaching importance, it does not seem to us wise to apply that rule, and we must decline to do so.2 In order that the case as it appeared to the court might be made perfectly clear, and that the action of the court should be justified in refusing to decide it upon demurrer without the defence to be set up in the answer, Mr. Chief Justice Fuller briefly restates the case, which he had summarized at very great length in the statement used by the official reporter. For the same reason the recapitulation of the facts is here given for the convenience of the reader in the words of the Chief Justice : The gravamen of the bill is that the State of Colorado, acting directly herself, as well as through private persons thereto licensed, is depriving and threatening to deprive the State of Kansas and its inhabitants of all the water heretofore accustomed to flow in the Arkansas River through its channel on the surface, and through a subterranean course, across the State of Kansas; that this is threatened not only by the impounding, and the use of the water at the river's source, but as it flows after reaching the river. Injury, it is averred, is being, and would be, thereby inflicted on the State of Kansas as an individual owner, and on all the inhabitants of the State, and especially on the inhabitants of that part of the State lying in the Arkansas valley. The injury is asserted to be threatened, and is being wrought, in respect of lands located on the banks of the river; lands lying on the line of a subterranean flow; and lands lying some distance from the river, either above or below ground, but dependent on the river for a supply of water. And it is insisted that 1 State of Kansas v. State of Colorado (185 U.S. 125, 144). • Ibid. (185 U.S. 125, 145). The evidence. Colorado in doing this is violating the fundamental principle that one must use his own so as not to destroy the legal rights of another. The State of Kansas appeals to the rule of the common law that owners of lands on the banks of a river are entitled to the continual flow of the stream, and while she conceded that this rule has been modified in the Western States so that flowing water may be appropriated to mining purposes and for the reclamation of arid lands, and the doctrine of a prior appropriation obtains, yet she says that that modification has not gone so far as to justify the destruction of the rights of other States and their inhabitants altogether; and that the acts of Congress of 1866 and subsequently, while recognizing the prior appropriation of water as in contravention of the common law rule as to a continuous flow, have not attempted to recognize it as rightful to that extent. In other words, Kansas contends that Colorado cannot absolutely destroy her rights, and seeks some mode of accommodation as between them, while she further insists that she occupies, for reasons given, the position of a prior appropriator herself, if put to that contention as between her and Colorado.1 And to decide the case the court felt that evidence of a far-reaching character should be introduced, the Chief Justice, speaking for a unanimous court, saying: We think proof should be made as to whether Colorado is herself actually Court will threatening to wholly exhaust the flow of the Arkansas River in Kansas; whether hear the what is described in the bill as the underflow is a subterranean stream flowing in a known and definite channel, and not merely water percolating through the strata below; whether certain persons, firms, and corporations in Colorado must be made parties thereto; what lands in Kansas are actually situated on the banks of the river, and what, either in Colorado or Kansas, are absolutely dependent on water therefrom ; the extent of the watershed or the drainage area of the Arkansas River; the possibilities of the maintenance of a sustained flow through the control of flood waters; in short, the circumstances, a variation in which might induce the court to either grant, modify, or deny the relief sought or any part thereof. Demurrer over ruled. The result is that in view of the intricate questions arising on the record, we are constrained to forbear proceeding until all the facts are before us on the evidence.2 Admitting the remedy, what was the remedy to be-not negotiation, not war. It could only be law; and what law? The Supreme Court was clear as to the law to be applied, and in stating it, it declared that the Supreme Court was in fact as well as in theory the Court of the States, that it was not merely the prototype of an international tribunal, but that it was that international tribunal. For did not the national unanimous court say, by the mouth of its Chief Justice : The Court as an inter tribunal. Sitting, as it were, as an international, as well as a domestic tribunal, we apply Federal law, state law, and international law, as the exigencies of the particular case may demand.3 49. State of Tennessee v. State of Virginia. The second of the cases of Tennessee v. Virginia (190 U.S. 64), decided in 1903, and the fourth of the series between the two States in controversy is important as definitely establishing the boundary line between them. It has a further interest in that the compact of 1803 was found by the States not to meet their present needs, and in order that the boundary line to be run and to be marked should be definitive, because 1 State of Kansas v. State of Colorado (185 U.S. 125, 145-6). 2 Ibid. (185 U.S. 125, 147). the final phase of this case see acceptable to them and as suited to changed conditions, the two States entered into a compact, by virtue whereof a small strip of territory belonging to Tennessee should be ceded by that State to Virginia the Mother of Presidents as well as of commonwealths. The method by which this was done is noteworthy, as it shows how nations, if they will, can legislate concurrently and thus openly, without resorting to the dark and devious ways of diplomacy and the secrecy which that method of procedure entails. action of the The legislature of Tennessee passed a law, approved by its Governor January 28, Joint 1901, ceding the strip of territory in question to Virginia, and the legislature of legislative Virginia passed an act approved February 9, 1901, accepting the cession of the bit of territory. Recognizing, however, that this was a compact between the States by parties means of concurrent acts of their respective legislatures, the States sought and approved obtained, as is required by the Constitution, the consent of the Congress of the United by ConStates to the compact, which was given by joint resolution approved by the President 1901. March 3, 1901. The report of the commissioners on the boundary, modified in Report of accordance with the compact of 1901, was filed January 5, 1903, accepted by the CommisStates in controversy, and confirmed on the 1st day of June of the same year. Were it not for the compact between the States of 1901, modifying their earlier compact of 1803, it would be sufficient for present purposes to state that the line as traced and marked in the report of the commissioners was declared by the Supreme Court to be the true boundary between the States, inasmuch as the procedure in this phase of the case is similar to that followed in entering the final decree of the court in other boundary cases. It is, however, because of this difference and of its international import-because what States of the Union can do by concurrent action of their legislatures nations can likewise accomplish-this portion of the decree of the court as announced by Chief Justice Fuller is quoted, omitting the portion of the decree taxing the States with equal moieties of the expenses, and the order that fifty printed copies of the decree, including the report, be transmitted to the AttorneyGeneral of each of the States in controversy. gress, sioners, 1903. It is thereupon ordered, adjudged and decreed that the real, certain and true Report boundary line between the States of Tennessee and Virginia, as actually run and conlocated under the compact and proceedings had between the two States in 1801-1803, fired and as adjudged by this court on the third day of April, 1893, in said original cause Court. in equity, wherein the State of Virginia was complainant and the State of Tennessee was defendant as aforesaid, was at the institution of this suit, and now is, except as hereinafter shown, as described and delineated in said report filed herein on January 5, 1903, as aforesaid. And it further appearing to the court, and it being so admitted by both parties, that since the institution of this suit and the decretal order of April 30, 1900, as aforesaid, a compact was entered into by the States of Tennessee and Virginia, expressed in the concurrent laws of said States, namely, the act of the general assembly of Tennessee, approved January 28, 1901, entitled 'An act to cede to the State of Virginia a certain narrow strip of territory belonging to the State of Tennessee, lying between the northern boundary line of the city of Bristol, in the county of Sullivan, and the southern boundary line of the city of Bristol, in the County of Washington, State of Virginia, being the northern half of Main street, of the said two cities', and the reciprocal act of the general assembly of Virginia approved February 9, 1901, entitled 'An act to accept the cession by the State of Tennessee to the State of Virginia, of a certain narrow strip of territory claimed as belonging to the State of Tennessee, and described as lying between the northern boundary line of the city of Bristol, in the county of Sullivan, State of Tennessee, and the southern boundary line of the city of Bristol, in the county of Washington, State of Virginia, being the northern half of the Main street of the said two cities'., And it further appearing that said compact received the consent of the Congress of the United States by joint resolution approved March 3, 1901, as follows: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That a recent compact or agreement having been made by and between the States of Tennessee and Virginia, whereby the State of Tennessee, by an act of its legislature approved January twenty-eighth, nineteen hundred and one, ceded to the State of Virginia certain territory specifically described in said act and being the northern half of the main street between the cities of Bristol, Virginia, and Bristol, Tennessee, and the State of Virginia, by act of its general assembly, approved February ninth, nineteen hundred and one, having accepted said cession of the State of Tennessee, the consent of Congress is hereby given to said contract or agreement between said States fixing the boundary line between said States as shown by said acts referred to, and the same is hereby ratified. And said commissioners, in their said report, having ascertained and recommended the straight line from the end of the 'diamond-marked' or compact line of 1801-1803 to the corner of the States of North Carolina and Tennessee as the true boundary line between the States of Virginia and Tennessee between those two points, the court, approving said recommendation and finding of said commissioners, doth adopt the same. And the court, being of opinion that it is proper to recognize the line so established by said last-mentioned compact of 1901 as the real, certain, and true interstate boundary line within and between said two cities, and to definitely determine and fix in this cause what is the real, true and certain boundary line between said States throughout the entire length thereof from the corner of the States of North Carolina and Tennessee, on Pond Mountain, to the corner of Virginia and Kentucky, at Cumberland Gap, doth therefore adjudge, order, and decree that the entire real, certain, and true boundary line between the States of Tennessee and Virginia is the line described and delineated in said report filed herein on January 5, 1903, modified as to so much of said line as lies between the two cities of Bristol, by the aforesaid compact of 1901 between the two States, and as so described, delineated, and modified said boundary line from the said North Carolina corner to the eastern end of the compact line of 1801-1803, known as the diamond-marked' line, and thence to Cumberland Gap, is hereby determined, fixed and established.1 50. United States v. State of Michigan. In United States v. Michigan (190 U.S. 379), decided in 1903, the point of interest is that the United States appeared in its own right as plaintiff against one of the States as defendant. Since the right of the United States to sue a State of the Union was admitted, and the jurisdiction of the Supreme Court in the premises established, the importance of the case lies in the resort of the United States to the court, furnishing an additional precedent for such action, rather than in the facts of the case as set Claim for forth in the pleadings and the principles of law involved. balance of moneys The United States, alleging that the State of Michigan is indebted to it for moneys advanced advanced in the construction of the St. Mary's River canal and that the State has to build a canal. not repaid the sums of money so due, filed its original bill in equity against the 1 State of Tennessee v. State of Virginia (190 U.S. 64, 65–7). defendant in the Supreme Court. The defendant filed a demurrer, alleging a want of Demurrer equity and that the plaintiff, even supposing a right of action existed and the court alleging could assume jurisdiction thereof, has been guilty of such gross laches as to bar it of relief. (1) want of equity, (2) laches. canal. gan for a On August 26, 1852, Congress granted a right of way through a military reserva- Act of tion of the United States in the State of Michigan and appropriated to the State Congress (1852) 750,000 acres of land, to be afterwards selected, in order to construct a canal and a providing lock where Lake Superior empties into the St. Mary's River at or near St. Mary's Falls. for a By the first section of the act, the canal was to be 100 feet wide with a depth of 12 feet, and the locks at least 250 feet long and 60 feet wide. The 750,000 acres of land Land granted by the United States in order to enable the State to construct the canal were granted, to be selected by the State with the approval of the Secretary of the Interior from any lands within the State subject to private entry, and the lands so granted were to be disposed of by the legislature of the State for the purpose of building a canal, to be sold which was to be and remain a public highway for the use of the United States, free by Michifrom toll or charges upon vessels of the General Government engaged in the public building fund; service. It was further provided that the State of Michigan should be bound to pay to the United States the proceeds from the sales of the lands at a rate not less than $1.25 per acre unless the canal should be begun within three and completed within ten years; that the legislature of the State should keep an accurate account of sales and net proceeds of the lands so granted, and of all expenditures in connexion with the canal and its earnings, and make a return thereof annually to the Secretary of the Interior; that until the reimbursement for all advances necessarily made in the construction of the canal, with legal interest on such advances, the State was autho- working rized to levy tolls sufficient to pay the necessary expenses for the care and repair of the canal 'until the reimbursement of the same, or upon payment by the United States of any balance of such advances over such receipts from said lands and canal, with such interest'. And it was finally provided that, before any of the lands in question should be disposed of, the route of the canal was to be established and a plat or plats thereof filed in the office of the War Department and a duplicate in the office of the Commissioner of the General Land Office. On February 5, 1853, the legislature of the State of Michigan accepted the grant of the lands for the purpose of building the canal, subject to the conditions contained in the act of Congress. In addition to the appointment of commissioners and an engineer to undertake and to construct the canal, and a statement of the methods to be followed in the making of the contracts and the sale and disposition of the lands, the seventh section provided that the commissioners should keep an accurate account of the sales and net proceeds of the lands and of all expenditures in connexion with the construction of the canal and its earnings, and return a statement thereof to the Governor on or before the first Monday in October of each year, who in turn should transmit it, or a copy thereof, to the Secretary of the Interior at Washington in accordance with the Act of Congress. permet to be by tolls. Act accepted by Michigan, 1853. The canal was built and put in operation, but, as alleged in the bill, the report Canal to the Secretary of the Interior, as required by the act of Congress and the act of built. Michigan accepting the conditions of that act, was not made. It was further charged that the canal was built from the proceeds of the land granted by the Congress, all |