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ment, and upon the pleadings and testimony | practically all the bottom lands in the east the case was submitted.

or lower half of the valley were entered and settled, and title obtained from the United States or the state of Kansas; and by the

In order that the issue between the three principal parties, Kansas, Colorado, and the United States, may be fully disclosed,-al-year 1882 the west or upper half of the valthough by so doing we prolong considerably this opinion, we quote abstracts of the pleadings and statements thereof made by the respective counsel. Counsel for Kansas say:

ley was so entered and settled and like titles obtained. By the year 1873 a railroad was built through the entire length of the valley, and immediately after their settlement these bottom lands were extensively cultivated, large crops of agricultural products were raised, towns and cities sprang up, population rapidly increased, and by the year 1883 practically all the bottom lands of the Arkansas valley were in a state of successful and prosperous cultivation; that the waters of the Arkansas river furnished the foundation for this prosperity. These waters furnished a wholesome and ample supply for domestic purposes, for the watering of stock, for power for operating mills and factories, for saturating and sub

"The bill of complaint alleges that the state of Kansas was admitted into the Union on January 29, 1861, that the state of Colorado was admitted on August 1, 1876, and that the other defendants are corporations organized, chartered, and doing business in the state of Colorado; that the Arkansas river rises in the Rocky mountains, in the state of Colorado, and, flowing in a southeasterly direction for a distance of about 280 miles, crosses the boundary into the state of Kansas; that the river then flows in an easterly and southeasterly direc-irrigating the bottom lands back to the uption through the state of Kansas for a dis- lands on either side of the river, so that tance of about 300 miles, then through Ok- crops thereon were not only bounteous but lahoma, Indian territory, and Arkansas, on practically certain, and in the western porits way to the sea. Through the state of tion of the valley these waters were approKansas the Arkansas valley is a level plain priated and used for surface irrigation, to but a few feet above the normal level of supplant the scanty rainfall in that region. the river, and is from 2 to 25 miles in width. That by reason of these uses of the waters Back to the foothills on either side there of the Arkansas river, and the almost unare bottom lands which are saturated and varying water level beneath these bottom subirrigated by the underflow from the riv- lands being near the surface, the lands in er, and are fertile and productive almost the Arkansas valley in the state of Kansas beyond comparison. The Arkansas river is a were of great and permanent value to the meandered stream through the state of Kan-owners and settlers thereon, and those upon sas, and under the laws and departmental the tax rolls of the state of Kansas yielded rules and regulations of the United States it a large and increasing revenue to the comis a navigable river through the state of plainant for state purposes. Kansas, and was, in fact, navigable and navigated from the city of Wichita south to its mouth; and that the complainant is the owner of the bed of the stream between the meandered lines in trust for the people of the state; that the complainant is the owner of two tracts of land bordering upon the river, one at Hutchinson and one at Dodge City, upon which state institutions are maintained,- -one as a reform school and the other as a soldiers' home. That when the state of Kansas was admitted into the Union it became the owner, for school purposes, of sections 16 and 36 of each congressional township, of which the complainant still owns many thousand acres, much of which borders on the Arkansas river. That by act of Congress of March 3, 1863 [12 Stat. at L. 772, chap. 98], the complainant became the owner of each odd-numbered section of land in the Arkansas valley and has since conveyed the whole of this land for the purposes specified. That by the year 1868*the land in the Arkansas valley began to be taken by actual settlers, and by the year 1875 27 S. C.-42.

"That after the lands in the Arkansas valley had been settled and raised to a high state of cultivation, all the bottom lands in the valley being riparian lands and directly affected by the presence and flow of the river, and after parts of the flow of the river had been used for manufacturing and milling purposes, and after the riparian lands had been largely and extensively irrigated in the valley of the river in the western portion of Kansas, and after portions of the land so belonging to the complainant had been sold and conveyed, the state of Colorado and other defendants began systematically appropriating and diverting the waters of the Arkansas river, in the state of Colorado, between Cañon City and the Kansas state line, for the purpose of irrigating dry, barren, arid, nonriparian, and nonsaturated lands lying on either side of the river, and often many miles therefrom and by the year 1891 all the natural and normal waters and a large portion of the flood waters of the Arkansas river were so appropriated and diverted and

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actually applied to these dry, barren, arid, | nouriparian, and nonsaturated lands in the state of Colorado, said diversions increasing from year to year, as their means of diversion became more complete and perfect, so the average flow of the river was greatly and permanently diminished and the normal flow of the river, exclusive of floods, was wholly and permanently destroyed, the navigability of the river where navigable before has been ruined, the power for manufacturing purposes greatly diminished, the surfact of the underflow beneath the bottom lands has been lowered about 5 feet, and the water for the irrigation ditches in the western part of Kansas has been entirely cut off. The loss sustained by the complainant and its citizens has been great and incalculable. The benefits of river navigation are gone; the cheap water power has been replaced by the costly steam power; the productiveness and value of the bottom lands have been greatly diminished; the irrigation ditches are left dry and the lands uncultivated; and the revenues of the state of Kansas and its municipalities have been materially decreased. Against this loss and injury the complainant prays the assistance of this court."

times in early years, and now, the Arkansas river at times of flood, or of what might be called high water, has a continuous flow from its source to its mouth; but a flow, even in times of flood or high water, which diminishes through the sandy waste east of the Colorado state line above described, so that oftentimes even a flood in Colorado would be completely lost before it had passed over this arid stretch of sandy channel, and high water would always be diminished in flow through the same stretch of country. This river is as if it were a current of water passing over a sieve; if the current be slow and the volume not excessive all of it sinks through the sieve and none passes on beyond; when the current is rapid and the volume is large, still a large amount sinks in the sieve, and the residue passes on beyond.

"Now, the irrigators of Colorado have confined their actions to the Colorado Arkansas above described. They have taken the waters of the perennial stream before it reaches this sieve, through which it wasted; they have lifted that stream out of the sandy channel in which it had flowed, and applied it to beneficial uses upon the land; carried the body of it along at a higher level

In the brief of counsel for Colorado it than where it was accustomed to run, and is said:

tomed to flow before the period of irrigation. The effect of the diversion of this water in Colorado, the carrying of it forward on a higher level, the return of waters, partly through seepage and partly through direct delivery at waste gates, and the effect of this process in extending eastward the perennial flow, will be fully discussed in the course of the argument to follow. It is sufficient in this preliminary

they finally restore it, practically undimin"The contention of the defendant, state of ished in volume, so far as regards practical Colorado, as to the facts, may be concisely use, at points in the ancient channel farther stated as follows: The Arkansas river, pop-east than the river at low water was accusularly so called, is substantially two rivers, -one a perennial stream rising in the mountains of Colorado and flowing down to the plains, and this Colorado Arkansas, when the river was permitted to run as it was accustomed to run, prior to the period of irrigation, poured into the sands of western Kansas, and at times of low water the river as a stream entirely disappeared. Its waters were to some extent evaporated, and, as to the residue, were absorbed and swal-statement to say that it is admitted by the lowed up in the sands. So that from the vicinity of the state line between Kansas and Colorado on eastwardly, as far, at least, as Great Bend, if not farther, at such times of low water there was no flowing Arkansas river. Farther east, however, a new river arose, even at such times of low water, and partly from springs, partly from the drainage of the water table of the country supplied by rainfall, and partly from the surface drainage of an extensive territory, this river gradually again became a peren-have what she was accustomed to have in nial stream, so that south of Wichita, and from there on to the mouth of the river the Kansas Arkansas, as a new and separate stream, had a constant flow. Such, as the river was accustomed to flow, was the Arkansas of the period prior to irrigation. It was a broken river.' It is true that at all

complainant that in the course of a twelvemonth there is a vast amount of high and flood waters of the Arkansas that are never captured by man, that are of no use, but are rather of injury to Kansas riparian proprietors, and, so far as any beneficial use is concerned, are absolutely wasted and lost. Kansas does not claim that she has not abundance of water in times of flood or in times of high water; her complaint is based upon the alleged fact that she does not

periods of low water, whereas, in fact, as contended by the state of Colorado, the diversion of water in Colorado into ditches and reservoirs, continuing, as it does, throughout the year, in times of flood and in times of high water, has the effect, through seepage and return waters, to give

"The first paragraph of the said petition describes the Arkansas river from its source to its mouth, and alleges that it is not nav- "The eighth paragraph alleges that the igable in the states of Colorado and Kansas common-law doctrine of riparian rights is nor the territory of Oklahoma, but is navi- not applicable to riparian lands within the gable in the state of Arkansas and the In-arid region, and that only by the use of dian territory. waters of natural streams and flood waters

"In the second paragraph it is alleged for irrigation and other beneficial purposes that the lands located within the watershed can the lands in the arid region be made of the river west of the 99th degree of lon-productive, and only by such use can addigitude are arid lands. tional areas be reclaimed and rendered productive and salable.

08*

Con

contention of Colorado in respect to its claim | claimed by the respective litigants. of ownership, viz., that under the provisions troversies between the states are becoming of its Constitution it is the owner of all frequent, and, in the rapidly changing conwaters within that state. ditions of life and business, are likely to become still more so. Involving, as they do, the rights of political communities which in many respects are sovereign and independent, they present not infrequently questions of far-reaching import and of exceeding difficulty.

"The eighteenth paragraph is as follows: ""That neither the contention of the state of Colorado nor the contention of the state of Kansas is correct; nor does either contention accord with the doctrine prevailing in the arid region in respect to the waters of natural streams and of flood and other It is well, therefore, to consider the founwaters. That either contention, if sustained, dations of our jurisdiction over controver would defeat the object, intent, and purpose sies between states. It is no longer open to of the reclamation act, prevent the settle-question that by the Constitution a nation ment and sale of the arid lands belonging to was brought into being, and that that inthe United States, and especially those with-strument was not merely operative to esin the watershed of the Arkansas river west tablish a closer union or league of states. of the 99th degree west longitude, and would Whatever powers of government were grantotherwise work great damage to the inter-ed to the nation or reserved to the states ests of the United States.""

Messrs. S. S. Ashbaugh, N. H. Loomis, C. C. Coleman, and F. Dumont Smith for complainant.

Messrs. Clyde C. Dawson, Platt Rogers, N. C. Miller, Joel F. Vaile, Charles D. Hayt, C. W. Waterman, F. E. Gregg, W. R. Ramsey, and I. B. Melville for defendant the state of Colorado.

Messrs. David C. Beaman, Cass E. Herrington, and Fred Herrington for defendant the Colorado Fuel & Iron Company.

Messrs. Platt Rogers, John F. Shafroth, and Frank E. Gregg for defendant the Arkansas Valley Sugar Beet & Irrigated Land Company.

(and for the description and limitation of those powers we must always accept the Constitution as alone and absolutely controlling), there was created a nation, to be known as the United States of America, and as such then assumed its place among the nations of the world.

The first resolution passed by the convention that framed the Constitution, sitting as a committee of the whole, was "Resolved, That it is the opinion of this committee that a national government ought to be established, consisting of a supreme legislative, judiciary, and executive." 1 Elliot, Debates, p. 151.

In M'Culloch v. Maryland, 4 Wheat. 316, 405, 4 L. ed. 579, 601, Chief Justice Mar

Mr. C. C. Goodale for defendant the Gra- shall said: ham Ditch Company.

"The government of the Union, then

Mr. C. E. Gast for defendant the Fort (whatever may be the influence of this fact Lyon Canal Company.

on the case), is, emphatically and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be ex

Mr. F. A. Sabin for defendants the Rocky Ford Canal, Reservoir, Land, Loan, & Trust Company, the Catlin Consolidated Canal Company, the Oxford Farmers Ditch Com-ercised directly on them, and for their benpany, and the Lake Canal Company.

Solicitor General Hoyt, Assistant Attorney General Campbell, and Mr. A. C. Campbell for intervener, the United States.

efit."

See also Martin v. Hunter, 1 Wheat, 304, 324, 4 L. ed. 97, 102, opinion by Mr. Justice Story.

In Scott v. Sandford, 19 How. 393, 441, Mr. Justice Brewer delivered the opinion 15 L. ed. 691, 715, Chief Justice Taney obof the court:

While we said in overruling the demurrer that "this court, speaking broadly, has jurisdiction," we contemplated further consideration of both the fact and the extent of our jurisdiction, to be fully determined after the facts were presented. We therefore commence with this inquiry. And first, of our jurisdiction of the controversy between Kansas and Colorado.

served:

"The new government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations, of the preceding one. But, when the present United States came into existence under the new government, it was a new political body, a new nation, then for the first time taking its

This suit involves no question of bound-place in the family of nations." ary or of the limits of territorial jurisdiction.

And in Miller on the Constitution of the Other and incorporeal rights are United States, p. 83, referring to the adop

tion of the Constitution, that learned jurist | may, perhaps, be ultimately resolved into said: "It was then that a nation was born." one no less radical than this,-Do the peoIn the Constitution are provisions in sep-ple of the United States form a nation?” arate articles for the three great depart- In reference to this question attention ments of government,-legislative, execu-may, however, properly be called to Hans v. tive, and judicial. But there is this sig- Louisiana, 134 U. S. 1, 33 L. ed. 842, 10 nificant difference in the grants of powers Sup. Ct. Rep. 504. to these departments: The first article, treating of legislative powers, does not make a general grant of legislative power. It reads: "Article 1, § 1. All legislative pow-dicial power of the United States every suit ers herein granted shall be vested in a in law or equity commenced or prosecuted Congress," etc.; and then, in article 8, against one of the United States by citizens mentions and defines the legislative powers of another state or citizens or subjects of a that are granted. By reason of the fact that foreign state. This amendment refers only there is no general grant of legislative pow-to suits and actions by individuals, leaving er it has become an accepted constitutional undisturbed the jurisdiction over suits or rule that this is a government of enumerat- | actions by one state against another. ed powers.

The decision in Chisholm v. Georgia led * to the adoption of the 11th Amendment to the Constitution, withdrawing from the ju

*In M'Culloch v. Maryland, 4 Wheat. 405, 4 L. ed. 601, Chief Justice Marshall said: "This government is acknowledged by all to be one of enumerated powers. The principal that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted."

As said by Chief Justice Marshall in Cohen v. Virginia, 6 Wheat. 264, 407, 5 L. ed. 257, 291: "The Amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by states." See also South Dakota v. North Carolina, 192 U. S. 286, 48 L. ed. 448, 24 Sup. Ct. Rep. 269.

Speaking generally, it may be observed that the judicial power of a nation extends to all controversies justiciable in their nature, and the parties to which or the property involved in which may be reached by judicial process, and, when the judicial power of the United States was vested in the Supreme and other courts, all the judicial pow

ing was vested in those tribunals; and unless there be some limitations expressed in the Constitution it must be held to embrace all controversies of a justiciable nature arising within the territorial limits of the nation, no matter who may be the parties thereto. This general truth is not inconsistent with the decisions that no suit or action can be maintained against the nation in any of its courts without its consent, for they only recognize the obvious truth that a nation is not, without its con

On the other hand, in article 3, which treats of the judicial department, and this is important for our present consideration, -we find that § 1 reads that "the judicial power of the United States shall be vesteder which the nation was capable of exercisin one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." By this is granted the entire judicial power of the nation. Section 2, which provides that "the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States," etc., is not a limitation nor an enumeration. It is a definite declaration,-a provision that the judicial power shall extend tothat is, shall include the several matters particularly mentioned, leaving unrestrict-sent, subject to the controlling action of any ed the general grant of the entire judicial power. There may be, of course, limitations on that grant of power, but, if there are any, they must be expressed; for otherwise the general grant would vest in the courts all the judicial power which the new nation was capable of exercising. Construing this article in the early case of Chisholm v. Georgia, 2 Dall. 419, 1 L. ed. 440, the court held that the judicial power of the Supreme Court extended to a suit brought against a state by a citizen of another state. In announcing his opinion in the case, Mr. Justice Wilson said (p. 453, L. ed. p. 454):

"This question, important in itself, will depend on others more important still; and

of its instrumentalities or agencies. The creature cannot rule the creator. Kawananakoa v. Polyblank, 205 U. S. 349, 51 L. ed. 834, 27 Sup. Ct. Rep. 526. Nor is it inconsistent with the ruling in Wisconsin v. Pelican Ins. Co. 127 U. S. 265, 32 L. ed. 239, 8 Sup. Ct. Rep. 1370, that an original action cannot be maintained in this court by one state to enforce its penal laws against a citizen of another state. That was no denial of the jurisdiction of the court, but a decision upon the merits of the claim of the state.

These considerations lead to the propositions that when a legislative power is claimed for the national government the question is whether that power is one of