Distinction between private and State rights. Colorado, a large portion of its territory is threatened with destruction. Because of this, as Mr. Justice Brewer states, The controversy rises, therefore, above a mere question of local private right, and involves a matter of State interest and must be considered from that standpoint.' As authority for this, for the learned Justice never takes a step in advance without an authority in that behalf, he cites the case of Georgia v. Tennessee Copper Company (206 U.S. 230, 237-8). The facts of this case differ from the one in hand and yet they are in point. The Tennessee Copper Company operated within the State of Tennessee, close to the boundary of Georgia, generated large quantities of noxious gases, which, passing the frontier into Georgia, threatened destruction of forests, orchards, and crops situated in five of the counties of that State. In deciding this case, Mr. Justice Holmes, speaking in behalf of the court, used the following language, applicable to other situations and to the relations of sovereign States: This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain.... The caution with which demands of this sort, on the part of a State, for relief from injuries analogous to torts, must be examined, is dwelt upon in Missouri v. Illinois, 200 U.S. 496, 520, 521. But it is plain that some such demands must be recognized, if the grounds alleged are proved. When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests; and the alternative to force is a suit in this court. Missouri v. Illinois, 180 U.S. 208, 241. . If the State has a case at all, it is somewhat more certainly entitled to specific relief than a private party might be. It is not lightly to be required to give up quasi-sovereign rights for pay; ... The States by entering the Union did not sink to the position of private owners subject to one system of private law. (206 U.S. 237-8.) This changed, as the learned Justice said, the scope of the inquiry, and the principle involved in the case was no longer whether the State of Colorado withheld any portion of the waters of the Arkansas. 'We must consider', the learned Justice said, 'the effect of what has been done upon the conditions in the respective States and so adjust the dispute upon the basis of equality of rights as to secure as far as possible to Colorado the benefits of irrigation without depriving Kansas of the like beneficial effects of a flowing stream.' 2 The first question was one solely between individuals, the second between States, with the different interests which States have from individuals. This difference the learned Justice thus illustrates: Suppose the controversy was between two individuals, upper and lower riparian owners on a little stream with rocky bank and rocky bottom. The question properly might be limited to the single one of the diminution of the flow by the upper riparian proprietor. The lower riparian proprietor might insist that he was entitled to the full, undiminished and unpolluted flow of the water of the stream as it had been wont to run. It would not be a defense on the part of the upper riparian proprietor that by the use to which he had appropriated the water he had benefited the lower proprietor, or that the latter had received in any other respects an equivalent. The question would be one of legal right, narrowed to place, amount of flow and freedom from pollution.3 1 State of Kansas v. State of Colorado (206 U.S. 46, 99). In the matter of the States, he says: sider the We do not intimate that entirely different considerations obtain in a controversy between two States. Colorado could not be upheld in appropriating the entire flow of the Arkansas River, on the ground that it is willing to give, and does give, to Kansas something else which may be considered of equal value. That would be equivalent to this court's making a contract between the two States, and that it is not authorized to do. But we are justified in looking at the question not narrowly The Court and solely as to the amount of the flow in the channel of the Arkansas River, inquiring will conmerely whether any portion thereof is appropriated by Colorado, but we may properly general consider what, in case a portion of that flow is appropriated by Colorado, are the effects benefit to of such appropriation upon Kansas territory. For instance, if there be many thous- both ands of acres in Colorado destitute of vegetation, which by the taking of water from States. the Arkansas River and in no other way can be made valuable as arable lands producing an abundance of vegetable growth, and this transformation of desert land has the effect, through percolation of water in the soil, or in any other way, of giving to Kansas territory, although not in the Arkansas Valley, a benefit from water as great as that which would enure by keeping the flow of the Arkansas in its channel undiminished, then we may rightfully regard the usefulness to Colorado as justifying its action, although the locality of the benefit from the flow of the Arkansas through Kansas has territorially changed. Science may not as yet be able to give positive information as to the processes by which the distribution of water over certain territory has operation beyond the mere limits of the area in which the water is distributed, but they who have dwelt in the West know that there are constant changes in the productiveness of different portions of the territory, owing, apparently, to a wider and more constant distribution of water.1 The learned Justice, by way of illustration, calls attention to the fact that, during the time when Kansas was a territory, productive lands of the State were situated within the vicinity of the Arkansas River; that the working of the land enabled the rains to sink in and to render them productive; and he expressed the belief that, just as the area of cultivation had proceeded westward from the Missouri, by the watering of the arid lands of Colorado the area of cultivated land would extend eastward from Colorado, so that 'between the Missouri River and the mountains of Colorado there would be no land unfit for cultivation.' Contemplating this state of affairs as probable, because of this development to which he referred, he asks: 2 Will not the productiveness of Kansas as a whole, its capacity to support an increasing population, be increased by the use of the water in Colorado for irrigation? May we not consider some appropriation by Colorado of the waters of the Arkansas to the irrigation and reclamation of its arid lands as a reasonable exercise of its sovereignty and as not unreasonably trespassing upon any rights of Kansas? 3 But, believing that withdrawing the waters of the Arkansas would ultimately result in benefit to Kansas as well as to Colorado, he was, however, unwilling to have the case depend upon a state of affairs which might be considered as problematical, and which, in any event, was not subject to legal proof. He therefore turned to the common law of waters, as understood and administered in Kansas, which allowed this action on the part of the State of Colorado. After referring to the case of Clark v. Allaman (71 Kans. 206), as an authority for the statement which he had made, and to the decision of the Massachusetts jurist, 1 State of Kansas v. State of Colorado (206 U.S. 46, 100-1). Ibid. (206 U.S. 46, 102). 3 Ibid. (206 U.S. 46, 102). Summary of the evidence and general conclusions. Chief Justice Shaw, in the case of Elliott v. Fitchburg Railroad Company (10 Cush. 191, 193, 196), he thus continues: As Kansas thus recognizes the right of appropriating the waters of a stream for the purposes of irrigation, subject to the condition of an equitable division between the riparian proprietors, she cannot complain if the same rule is administered between herself and a sister State. And this is especially true when the waters are, except for domestic purposes, practically useful only for purposes of irrigation.1 After a description of the nature and the course of the river in Colorado and in Kansas, from which State it enters the State of Oklahoma, he goes on to say that 'if the extreme rule of the common law were enforced, Oklahoma having the same right to insist that there should be no diversion of the stream in Kansas for the purposes of irrigation that Kansas has in respect to Colorado, the result would be that the waters, except for the meagre amount required for domestic purposes, would flow through eastern Colorado and Kansas and be of comparatively little advantage to either State, and both would lose the great benefit which comes from the use of water for irrigation'. 2 So much for the jurisdiction of the court to hear the case at all, for the contentions of the United States, and for the consequences which would follow, both to Colorado and Kansas, if Oklahoma, through which the river later flows, should invoke the rule of law against both which Kansas sought to enforce against Colorado. After an examination of the testimony in the case, amounting to 8,559 typewritten pages and 122 exhibits, by virtue whereof it appeared that Colorado greatly increased the cultivation of its soil by watering its arid lands, resulting in a substantial increase of population, and a statement that the withdrawal of the waters of the Arkansas within the jurisdiction of Colorado did, in fact, somewhat injure the adjoining districts of Kansas, but not at all in proportion to the benefits conferred upon the State of Colorado, Mr. Justice Brewer, in behalf of the court, whose opinion he delivered, thus stated its conclusions and the form and nature of the decree which, as a consequence, should be entered in this case: We are of the opinion that the contention of Colorado of two streams cannot be sustained; that the appropriation of the waters of the Arkansas by Colorado, for purposes of irrigation, has diminished the flow of water into the State of Kansas ; that the result of that appropriation has been the reclamation of large areas in Colorado, transforming thousands of acres into fertile fields and rendering possible their occupation and cultivation when otherwise they would have continued barren and unoccupied; that while the influence of such diminution has been of perceptible injury to portions of the Arkansas Valley in Kansas, particularly those portions closest to the Colorado line, yet to the great body of the valley it has worked little, if any, detriment, and regarding the interests of both States and the right of each to receive benefit through the irrigation and in any other manner from the waters of this stream, we are not satisfied that Kansas has made out a case entitling it to a decree. At the same time it is obvious that if the depletion of the waters of the river by Colorado continues to increase there will come a time when Kansas may justly say that there is no longer an equitable division of benefits and may rightfully Petition call for relief against the action of Colorado, its corporations and citizens in appropriating the waters of the Arkansas for irrigation purposes. of the U.S. dismissed without prejudice. The decree which, therefore, will be entered will be one dismissing the petition of the intervenor, without prejudice to the rights of the United States to take such 1 State of Kansas v. State of Colorado (206 U.S. 46, 104-5). 2 Ibid. (206 U.S. 46, 105). action as it shall deem necessary to preserve or improve the navigability of the Arkansas River. The decree will also dismiss the bill of the State of Kansas as against Bill of all the defendants, without prejudice to the right of the plaintiff to institute new Kansas proceedings whenever it shall appear that through a material increase in the depletion dismissed of the waters of the Arkansas by Colorado, its corporations or citizens, the substantial interests of Kansas are being injured to the extent of destroying the equitable apportionment of benefits between the two States resulting from the flow of the river. Each party will pay its own costs.1 without prejudice No costs awarded. cases Of the ten cases forming the present group five relate to boundary and do not The presuggest comment. Of the others, two, Missouri v. Illinois (200 U.S. 496) and ceding (202 U.S. 598), dealt with the larger question concerning the health and well-being summarof the community, invoking the aid of the court against the pollution by Illinois of ized. a river flowing between the two States; a third, Kansas v. Colorado (206 U.S. 46), involved a different phase of the same great question, lest, through the action of a State in which a river rises, the inhabitants of another State lower down its course should suffer because of the diversion of its waters. In each case the court took jurisdiction, in each case relief was denied due to the lack of proof to sustain the grievance, and each case has already been discussed in connexion with the previous group. In the latter of the remaining two, Kansas v. United States (204 U.S. 341), the court decided that the second section of the third article of the Constitution, while regarding the United States as a proper party to an action, did not give general consent to a suit against it at the instance of a State of the Union; and therefore, before assuming jurisdiction, the Supreme Court would have to satisfy itself that special consent had been given in the special case. In the former, South Carolina v. United States (199 U.S. 437), the court held in simplest terms that if a State will go into business it is to be treated as a tradesman. X. ASSUMPTION OF JURISDICTION A MATTER OF COURSE; SECOND 62. State of Virginia v. State of West Virginia. Virginia and West Virginia are the most litigious States of the American Union, if tested by the frequency with which they have resorted to the Supreme Court, Virginia having been twelve times a plaintiff and twice a defendant in suits between the States. And West Virginia, although a newcomer in the Union of States, has been a party to twelve suits, each time a defendant, and of these twelve no less than ten were with the State of Virginia, all arising out of the separation of the Western counties of the State during the Civil War and their formation into a State of the Union. The first of the suits between the two States, Virginia v. West Virginia (II Wallace, 39), was decided in 1870, in which the facts involved in the separation of the western counties from the Commonwealth were stated and the right of the new State to territory claimed by it asserted and confirmed. State of Kansas v. State of Colorado (206 U.S. 46, 117-18). The second, Virginia v. West Virginia (206 U.S. 290), decided in 1907, is the first of a series of nine, springing out of the separation, but dealing with the financial as distinct from the territorial situation created by the formation of the new State. Question The question, although varying in each, is one and the same: the amount of indebtedof West Virginia's ness of the State of Virginia incurred before the separation which in law and in equity share of should be assumed and paid by the State of West Virginia. The mere mention of this fact shows, without the need of comment, that the series is of interest to the society of nations, even although the question turned upon a local or a particular statute rather than upon a general principle of international law. the State debt. Judge ment of The preliminaries of the controversy, necessary to an understanding of the case in hand and of the series which it ushers in, are admirably stated in two passages in the Court. the opinion which Mr. Chief Justice Fuller delivered on behalf of a unanimous court History assuming jurisdiction of the dispute. In the first of these passages he gives what may be called the historical setting of the case; in the second he describes the action of West Virginia assuming a share of the debt contracted by the Commonwealth of Virginia, of which it then formed a part, and the limitations which it placed upon the liability which it admitted and assumed. Under the first heading the Chief Justice said: of the case. Admis sion of ginia. The State of West Virginia was admitted into the Union June 20, 1863, under the proclamation of the President of the United States of April 20, 1863, in pursuance West Vir- of the act of Congress approved December 31, 1862, upon the terms and conditions prescribed by the Commonwealth of Virginia in ordinances adopted in convention and in acts passed by the General Assembly of the Restored Government of the Commonwealth', giving her consent to the formation of a new State out of her territory, with a constitution adopted for the new State by the people thereof. The ninth section of the ordinance adopted by the people of the 'Restored State of Virginia' in convention assembled in the city of Wheeling, Virginia, on August 20, 1861, entitled 'An ordinance to provide for the formation of a new State out of a portion of the territory of this State,' provided as follows: Provision for a the debt. '9. The new State shall take upon itself a just proportion of the public debt of the Commonwealth of Virginia, prior to the first day of January, 1861, to be ascershare of tained by charging to it all state expenditures within the limits thereof, and a just proportion of the ordinary expenses of the state government, since any part of said debt was contracted; and deducting therefrom the monies paid into the treasury of the Commonwealth from the counties included within the said new State during the same period. All private rights and interests in lands within the proposed State, derived from the laws of Virginia prior to such separation, shall remain valid and secure under the laws of the proposed State, and shall be determined by the laws now existing in the State of Virginia. . . .' Constitution of West Virginia. The consent of the Commonwealth of Virginia was given to the formation of a new State on this condition. February 3 and 4, 1863, the General Assembly of the 'Restored State of Virginia' enacted two statutes in pursuance of the provisions of which money and property amounting to and of the value of several millions of dollars were, after the admission of the new State, paid over and transferred to West Virginia.1 Under the second heading, the Chief Justice said: The constitution of the State of West Virginia when admitted contained these provisions, being sections 5, 7, and 8 of Article VIII thereof, as follows: 5. No debt shall be contracted by this State, except to meet casual deficits in the revenue, to redeem a previous liability of the State, to suppress insurrection, repel invasion, or defend the State in time of war.' |