State of Wyoming v. State of Colorado, No. 3

CourtUnited States Supreme Court
Writing for the CourtVAN DEVANTER
Citation259 U.S. 419,66 L.Ed. 999,42 S.Ct. 552
Decision Date05 June 1922
Docket NumberO,No. 3
PartiesSTATE OF WYOMING v. STATE OF COLORADO et al. * riginal. Re-

259 U.S. 419
42 S.Ct. 552
66 L.Ed. 999
STATE OF WYOMING

v.

STATE OF COLORADO et al.*

No. 3, Original.
Re-Argued Jan. 9, 10, 1922.
Decided June 5, 1922.

[Syllabus from pages 419-421 intentionally omitted]

Page 421

Messrs. N. E. Corthell, of Laramie, Wyo., John W. Lacey, of Cheyenne, Wyo., Douglas A. Preston, of Rock Springs, Wyo., and John D. Clark, of Cheyenne, Wyo., for State of Wyoming.

[Argument of Counsel from pages 421-430 intentionally omitted]

Page 430

Messrs. Victor E. Keyes, of Denver, Colo., Delph E. Carpenter, of Greeley, Colo., and Platt Rogers, Benjamin Griffith, Julius C. Gunter, Charles F. Tew, Fred Farrar, and Leslie E. Hubbard, all of Denver, Colo., for State of Colorado.

[Argument of Counsel from pages 430-443 intentionally omitted]

Page 443

Mr. Assistant Attorney General Ritter, for the United States.

[Argument of Counsel from pages 443-455 intentionally omitted]

Page 455

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

This is an original suit in this court by the state of Wyoming against the state of Colorado and two Colorado corporations to prevent a proposed diversion in Colorado of part of the waters of the Laramie river, an interstate stream. The bill was brought in 1911, the evidence was

Page 456

taken in 1913 and 1914, and the parties put it in condensed and narrative form in 1916 preparatory to the usual printing. The case has been argued at the bar three times. The court directed one reargument because of the novelty and importance of some of the questions involved, and the other because of an intervening succession in the office of Chief Justice. As the United States appeared to have a possible interest in some of the questions, the court also directed that the suit be called to the attention of the Attorney General, and, by the court's leave, a representative of the United States participated in the subsequent hearings.

The Laramie is an unnavigable river which has its source in the mountains of Northern Colorado, flows northerly 27 miles in that state, crosses into Wyoming, and there flows northerly and northeasterly 150 miles to the North Platte river, of which it is a tributary. Both Colorado and Wyoming are in the arid region, where flowing waters are, and long have been, commonly diverted from their natural channels and used in irrigating the soil and making it productive. For many years some of the waters of the Laramie river have been subjected to such diversion and use, part in Colorado and part in Wyoming.

When this suit was brought, the two corporate defendants, acting under the authority and permission of Colorado, were proceeding to divert in that state a considerable portion of the waters of the river and to conduct the same into another watershed, lying wholly in Colorado, for use in irrigating lands more than 50 miles distant from the point of diversion. The topography and natural drainage are such that none of the water can return to the stream or ever reach Wyoming.

By the bill Wyoming seeks to prevent this diversion on two grounds: One that, without her sanction, the waters of this interstate stream cannot rightfully be taken from

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its watershed and carried into another, where she never can receive any benefit from them; and the other that through many appropriations made at great cost, which are prior in time and superior in right to the proposed Colorado diversion, Wyoming and her citizens have become and are entitled to use a large portion of the waters of the river in the irrigation of lands in that state and that the proposed Colorado diversion will not leave in the stream sufficient water to satisfy these prior and superior appropriations, and so will work irreparable prejudice to Wyoming and her citizens.

By the answers Colorado and her codefendants seeks to justify and sustain the proposed diversion on three distinct grounds: First, that it is the right of Colorado as a state to dispose, as she may choose, of any part or all of the waters flowing in the portion of the river within her borders, 'regardless of the prejudice that it may work' to Wyoming and her citizens; secondly, that Colorado is entitled to an equitable division of the waters of the river, and that the proposed diversion, together with all subsisting appropriations in Colorado, does not exceed her share; and, thirdly, that after the proposed diversion there will be left in the river and its tributaries in Wyoming sufficient water to satisfy all appropriations in that state whose origin was prior in time to the effective inception of the right under which the proposed Colorado diversion is about to be made.

Before taking up the opposing contentions a survey of several matters in the light of which they should be approached and considered is in order.

Both Colorado and Wyoming are along the apex of the Continental Divide, and include high mountain ranges where heavy snows fall in winter and melt in late spring and early summer; this being the chief source of water supply. Small streams in the mountains gather the water from the melting snow and conduct it to larger streams

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below, which ultimately pass into surrounding states. The flow in all streams varies greatly in the course of the year, being highest in May, June, and July, and relatively very low in other months. There is also a pronounced variation from year to year. To illustrate, the gaging of the Cache la Poudre, a typical stream, for 1912 shows that the total flow for May, June, and July was more than three times that for the nine other months, and the gaging for a period of thirty years shows that the yearly flow varied from 151,636 to 666,466 acre-feet1 and was in excess of 400,000 acre-feet in each of four years and less than 175,000 acre-feet in each of five years. Both states have vast plains and many valleys of varying elevation, where there is not sufficient natural precipitation to moisten the soil and make it productive, but where, when additional water is applied artificially, the soil becomes fruitful—the reward being generous in some areas and moderate in others, just as husbandry is variously rewarded in states where there is greater humidity, such as Massachusetts, Virginia, Ohio, and Tennessee. Both states were territories long before they were admitted into the Union as states and while the territorial condition continued were under the full dominion of the United States. At first the United States owned all the lands in both, and it still owns and is offering for disposal millions of acres in each.

Turning to the decisions of the courts of last resort in the two states, we learn that the same doctrine respecting the diversion and use of the waters of natural streams has prevailed in both from the beginning, and that each state attributes much of her development and prosperity to the practiclal operation of this doctrine. The relevant views of the origin and nature of the doctrine, as shown in these decisions, may be summarized as follows: The

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common-law rule respecting riparian rights in flowing water never obtained in either state. It always was deemed inapplicable to their situation and climatic conditions. The earliest settlers gave effect to a different rule whereby the waters of the streams were regarded as open to appropriation for irrigation, mining, and other beneficial purposes. The diversion from the stream and the application of the water to a beneficial purpose constituted an appropriation, and the appropriator was treated as acquiring a continuing right to divert and use the water to the extent of his appropriation, but not beyond what was reasonably required and actually used. This was deemed a property right and dealt with and respected accordingly. As between different appropriations from the same stream, the one first in time was deemed superior in right, and a completed appropriation was regarded as effective from the time the purpose to make it was definitely formed and actual work thereon was begun, provided the work was carried to completion with reasonable diligence. This doctrine of appropriation, prompted by necessity and formulated by custom, received early legislative recognition in both territories and was enforced in their courts. When the states were admitted into the Union it received further sanction in their Constitutions and statutes and their courts have been uniformly enforcing it. Yunker v. Nichols, 1 Colo. 551; Schilling v. Rominger, 4 Colo. 100; Coffin v. Left Hand Ditch Co., 6 Colo. 443; Thomas v. Guiraud, 6 Colo. 530; Strickler v. Colorado Springs, 16 Colo. 61, 26 Pac. 313, 25 Am. St. Rep. 245; Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 31 Pac. 854; Wyatt v. Larimer & Weld Irrigation Co., 18 Colo. 298, 33 Pac. 144, 36 Am. St. Rep. 280; Crippen v. White, 28 Colo. 298, 64 Pac. 184; Moyer v. Preston, 6 Wyo. 308, 44 Pac. 845, 71 Am. St. Rep. 914; Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918; Willey v. Decker, 11 Wyo. 496, 73 Pac. 210, 100 Am. St. Rep. 939; Johnston v. Little Horse Creek Irrigating Co., 13 Wyo. 208, 79 Pac. 22, 70 L. R. A. 341, 110 Am. St. Rep. 986.

As the United States possessed plenary authority over Colorado and Wyoming while they were territories and

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has at all times owned the public lands therein, we turn next to its action.

The Act of July 26, 1866, c. 262, § 9, 14 Stat. 251 (Comp. St. § 4647), contained a section providing:

'Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same.'

The occasion for this provision and its purpose and effect were extensively considered by this court in the...

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78 practice notes
  • Rank v. Krug, Civ. No. 685-ND
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • April 13, 1950
    ...525; State of Nebraska v. State of Wyoming, 1945, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815; State of Wyoming v. State of Colorado, 1922, 259 U.S. 419, 42 S.Ct. 552, 66 L.Ed. 999; State of Kansas v. State of Colorado, 1907, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956; State of Colorado v. Stat......
  • Quantification Settlement Agreement Cases., No. C064293.
    • United States
    • California Court of Appeals
    • December 7, 2011
    ...expression of this legal principle. In 1922, only four months after the Fall–Davis Report, this Court in Wyoming v. Colorado [ (1922) ] 259 U.S. 419 [42 S.Ct. 552] 66 L.Ed. 999 held that the doctrine of prior appropriation could be given interstate effect. This decision intensified fears of......
  • In re Quantification Settlement Agreement Cases, No. C064293.
    • United States
    • California Court of Appeals
    • March 14, 2012
    ...expression of this legal principle. In 1922, only four months after the Fall–Davis Report, this Court in Wyoming v. Colorado [ (1922) ] 259 U.S. 419 [42 S.Ct. 552] 66 L.Ed. 999 held that the doctrine of prior appropriation could be given interstate effect. This decision intensified fears of......
  • United States v. Fallbrook Public Utility District, No. 1247-SD.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • August 8, 1958
    ...g. State of Nebraska v. State of Wyoming, 1945, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815; State of Wyoming v. State of Colorado, 1922, 259 U.S. 419, 42 S.Ct. 552, 66 L.Ed. 999) "and while a sovereign interest in the prosperity of the lands watered by the river has been recognized" (State ......
  • Request a trial to view additional results
76 cases
  • Rank v. Krug, Civ. No. 685-ND
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • April 13, 1950
    ...525; State of Nebraska v. State of Wyoming, 1945, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815; State of Wyoming v. State of Colorado, 1922, 259 U.S. 419, 42 S.Ct. 552, 66 L.Ed. 999; State of Kansas v. State of Colorado, 1907, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956; State of Colorado v. Stat......
  • Quantification Settlement Agreement Cases., No. C064293.
    • United States
    • California Court of Appeals
    • December 7, 2011
    ...expression of this legal principle. In 1922, only four months after the Fall–Davis Report, this Court in Wyoming v. Colorado [ (1922) ] 259 U.S. 419 [42 S.Ct. 552] 66 L.Ed. 999 held that the doctrine of prior appropriation could be given interstate effect. This decision intensified fears of......
  • In re Quantification Settlement Agreement Cases, No. C064293.
    • United States
    • California Court of Appeals
    • March 14, 2012
    ...expression of this legal principle. In 1922, only four months after the Fall–Davis Report, this Court in Wyoming v. Colorado [ (1922) ] 259 U.S. 419 [42 S.Ct. 552] 66 L.Ed. 999 held that the doctrine of prior appropriation could be given interstate effect. This decision intensified fears of......
  • United States v. Fallbrook Public Utility District, No. 1247-SD.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • August 8, 1958
    ...g. State of Nebraska v. State of Wyoming, 1945, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815; State of Wyoming v. State of Colorado, 1922, 259 U.S. 419, 42 S.Ct. 552, 66 L.Ed. 999) "and while a sovereign interest in the prosperity of the lands watered by the river has been recognized" (State ......
  • Request a trial to view additional results
2 books & journal articles
  • State Water Ownership and the Future of Groundwater Management.
    • United States
    • Yale Law Journal Vol. 131 Nbr. 7, May 2022
    • May 1, 2022
    ...water" but concluding that "[n]either state can legislate for or impose its own policy upon the other"). (161.) Wyoming v. Colorado, 259 U.S. 419, 464 (1922) (summarizing the holding of Kansas v. Colorado, 206 U.S. 46); see also Hinderlider v. La Plata River & Cherry Creek Ditch Co., 30......
  • Rethinking the Supreme Court’s Interstate Waters Jurisprudence
    • United States
    • Georgetown Environmental Law Review Nbr. 33-2, January 2021
    • January 1, 2021
    ...right up to—but not including—this state-state controversy docket.82 There is no other forum today 75. See generally Wyoming v. Colorado, 259 U.S. 419 (1922) (Laramie); New Jersey v. New York, 283 U.S. 336 (1931) (Delaware); Nebraska v. Wyoming, 325 U.S. 589 (1943) (North Platte). 76. See W......

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