State of Kansas v. State of Colorado

• Citation: 46 L.Ed. 838,185 U.S. 125,22 S.Ct. 552
• Decision Date: 07 April 1902
• Docket Number: O,No. 10,10
• Parties: STATE OF KANSAS, Complainant , v. STATE OF COLORADO. riginal
• Court: United States Supreme Court

185 U.S. 125

22 S.Ct. 552

46 L.Ed. 838

STATE OF KANSAS, Complainant,

v STATE OF COLORADO.

No. 10, Original.

Argued February 24, 25, 1902.

Decided April 7, 1902.

The state of Kansas, by leave of court, filed her bill of complaint against the state of Colorado on May 20, 1901, which, after stating that Kansas was admitted into the Union January 29, 1861, and Colorado August 1, 1876, averred:

That the Arkansas river rises in the Rocky mountains in the state of Colorado, and flows through certain counties of that state, and thence across the line into the state of Kansas; its tributaries in Colorado have their rise and entire flow in that state; the length of the river therein is approximately 280 miles, and the drainage area of the river and its tributaries approximately 22,000 square miles. All of the drainage area is east of the summit of the Rocky mountains and a large portion thereof in the mountains, where the accumulation of snow in the winter season is very great, the waters from the melting of which flow into the river directly and in great volume from early spring until August in each year. The river, after leaving the mountains of Colorado, proceeds in an easterly course for approximately 200 miles to the west line of Kansas, and 'is a navigable stream under the laws and departmental rules and regulations of the United States.' The volume of water in the bed of the river flowing from Colorado into Kansas formerly was and should now be, and would be, very large, but for the wrongful diversion of the same; said volume at its normal height in the river at the mean average flow for about ten months in the year being upwards of 2,000 cubic feet per second, while it is much less for about two months in the autumn in each year. The tributaries of the river in Kansas are comparatively few in number, and cannot furnish water to cause a continuous stream to flow in the bed of the river, except near the south line of the state, where the river passes into the territory of Oklahoma. The river, after entering Kansas, proceeds through certain enumerated counties thereof, and then through the territory of Oklahoma, the Indian territory, and the state of Arkansas, and empties into the Mississippi river at the eastern boundary of that state. From Fort Gibson, in the Indian territory, to the mouth of the river, it is a large navigable stream, and is used for the purposes of trade and commerce by vessels plying thereon.

The length of the river in Kansas is about 310 miles; its course is through a broad valley, and along its entire length in Kansas are alluvial deposits of great depth, amounting in the aggregate to about 2,500,000 acres, the greater part of which acreage and the greater part of the course of the river lying in the western part of the state. The elevation of the bed of the river through the state of Kansas is from 3,350 feet above the level of the sea at the Colorado line to 1,000 feet above that level at the point where it enters Oklahoma. The rainfall in the drainage area in the western half of the state of Kansas is very light, and, by reason of the porous nature of the soil throughout that area, the greater portion of the water so falling sinks into the earth, and but a small portion, thereof finds its way to the river, except in the event of severe and unusual storms. The ordinary and usual rain-fall in the major portion of the valley of the river in Kansas is utterly inadequate to the growing and maturing of cultivated crops of any kind, because the precipitation is very scanty, and does not fall during the growing season of the year.

The river in its entire course through the state of Kansas has a natural fall of about 7 3-10 feet per mile. Its valley is composed of sand covered with alluvial soil, and the river and the surface soil of the bottom lands in Kansas are all underlaid with sand and gravel, through which the waters of the river have flowed from time immemorial, extending in width under the entire valley for its whole length throughout the state, the natural course and flow of the river being in and beneath the bed thereof and beneath the surface of the bottom lands of the entire valley of the river, that portion which flows beneath the surface being called the 'underflow.' The underflow is confined to and is coextensive with the valley, and varies in volume with the amount of water in discharge in the river. The water which flows in the river from Colorado into Kansas furnishes the principal and almost the entire supply of water for the underflow of the valley, and at its normal height the underflow is of great and lasting benefit to the bottom lands, both as to those which abut on the river and as to those which do not; and is of great benefit to the people owning and occupying such lands, 'for that it furnishes moisture sufficient to grow ordinary farming crops in the absence of rainfall, and furnishes water at a moderate depth below the surface for domestic use and for the watering of animals. The flow of the water in the river bed is also of great value to the people in the vicinity by reason of the fact that the evaporation therefrom tends to cool and moisten the surrounding atmosphere, thereby greatly promoting the growth of all vegetation, enhancing the value of the lands in that vicinity, and conducing directly and materially to the public health, and making the locality habitable. Owing to the dryness of the climate, the cloudlessness of the sky, the high elevation, and the prevailing winds, evaporation is rapid and great, being about 60 inches per annum at the east end of the river valley in Kansas, and 90 inches at the west line of the state. Outside of the valley in the western half of the state of Kansas are several million acres of arid upland and plateau, upon which grows a sparse but valuable grass upon which cattle may feed, and upon which they have, in times past, in vast numbers, been fed and fattened; but the cattle so fed must have watering places, and such watering places must be in the river valley; and the availability and use of said arid lands and the prosperity of the business of cattle feeding thereon depend entirely upon the water, its convenience, depth, and supply; and if the surface flow of water in the bed of said river be wholly cut off from the state of Kansas, then the underflow will gradually diminish and run out, and the valley of the Arkansas river will become as arid and uninhabitable as is the upland and plateau along its course, since without said underflow the valley land will be unfit for cultivation, and the arid lands unavailable for grazing.'

The bottom lands in the valley of the Arkansas river in Kansas 'are practically level, and rise from 6 to 15 feet above the water bed of the river,' and are such as are ordinarily termed 'bottom lands' Nearly all of the bottom lands, including those which are adjacent to the bed of the river, are fertile and productive, valuable for farming purposes, and well adapted to the growing of corn, wheat, alfalfa, rye, etc., and 'all like crops, grains, and grasses usually grown in that latitude of the United States. In addition thereto, all of said lands are valuable for grazing purposes, and well adapted to the support of vast numbers of cattle, horses, sheep, and hogs.'

More than three fourths of these Kansas bottom lands were and are occupied by persons owning or leasing them, and residing thereon with their families; and more than two fifths, including more than two fifths of those on the river bank, are and have been for years in actual cultivation, with an agricultural population of more than 50,000, raising all products 'common to the latitude and climate,' while numerous cities, towns, and villages are situated on the bank of the river, including ten county seats, with an aggregate population of over 50,000. The actual value of the Arkansas bottom lands averages not less than $25 an acre, provided they receive the benefits arising from the natural and normal flow of the water of the river, but that by reason of the wrongful acts of the state of Colorado the value of the lands 'has shrunk many millions of dollars, which has been a direct loss to the citizens of the state of Kansas, and to the taxable wealth, and to the revenues of the state of Kansas, and to the school system of the state, as hereinafter set forth.'

The bill further averred that all of the bottom lands were originally part of the public domain of the United States, and that the state became entitled, on admission, for school purposes, to sections 16 and 36 of each township, some of which sections were situated within the valley, and a number of them adjoined the bed of the stream; that under the act of Congress of March 3, 1863, there was granted to the state practically all of the odd-numbered sections of land in the valley lying north of a line 4 miles south of the north line of township 26, and the grant included all the territory of the Arkansas valley west of Wichita, being four fifths of the valley; that all the requirements of the act of Congress were complied with prior to 1874, by the state and by the Atchison, Topeka & Santa F e Railroad Company, and the title in fee simple had been conveyed to the state, and by the state to the railroad company and others, being not less than 900,000 acres, a large portion of which abutted upon the river; that the even-numbered sections had been at all times subject to entry, and have been taken and occupied by settlers under the land laws.

Prior to the admission of Kansas there were many settlers and residents in the valley, occupying and holding lands there, more particularly along the line of the Santa F e trail, which followed the river from the present site of the city of Hutchinson to the west line of the state; and during the years 1869, 1870, and 1871, the entire Arkansas valley, from the south line of the state to the city of Great Bend, was taken and occupied by actual...