State of Wyoming v. State of Colorado

• Decision Date: 01 June 1936
• Docket Number: No. 10,10
• Citation: 298 U.S. 573,56 S.Ct. 912,80 L.Ed. 1339
• Parties: STATE OF WYOMING v. STATE OF COLORADO
• Court: U.S. Supreme Court

298 U.S. 573

56 S.Ct. 912

80 L.Ed. 1339

STATE OF WYOMING

v STATE OF COLORADO.

No. 10.

Argued Feb. 11, 12, 1936.

Decided June 1, 1936.

Messrs. Ray E. Lee, James A. Greenwood, and Wm. O. Wilson, all of Cheyenne, Wyo., for the State of Wyoming.

[Argument of Counsel from page 574 intentionally omitted] Messrs. Shrader P. Howell, of Denver, Colo., Wm. R. Kelly and C. D. Todd, both of Greeley, Colo., and C. L. Ireland and Charles Roach, both of Denver, Colo., for the State of Colorado.

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

By this suit the state of Wyoming complains of the state of Colorado and asserts that the latter and her water claimants have been and are departing from a decree rendered by this Court in an earlier suit between these states (259 U.S. 419, 42 S.Ct. 552, 66 L.Ed. 999; 259 U.S. 496, 42 S.Ct. 594, 66 L.Ed. 999; 260 U.S. 1, 43 S.Ct. 2, 66 L.Ed. 1026), and that the asserted departures have been and are working material injury to Wyoming and her water claimants. The principal relief sought is an injunction enforcing adherence to that decree.

The earlier suit and decree dealt with the relative rights of the two states and their respective water claimants to divert and use for irrigation the waters of the Laramie river, an innavigable stream which has its source in the mountains of Northern Colorado, flows northerly 27 miles in that state, crosses into Wyoming, and there flows northeasterly 150 miles to the North Platte river, of which it is an affluent. That suit was largely provoked by a proposed and threatened diversion in Colorado (called the Laramie-Poudre tunnel project) of 50,000 acre feet or more from the Laramie river, which Wyoming alleged would not leave in the river sufficient water to satisfy older appropriations in that state.

Shortly after the present suit was begun, the complainant's right to relief was challenged by a motion to dismiss, one ground of which was that the suit proceeds on the erroneous assumption that the earlier decree determined, as against Colorado and her water claimants, the full quantity of water which rightly may be diverted within that state from the stream, and likewise the quantity which Wyoming and her water claimants are entitled to receive and use within her borders. The motion was overruled (286 U.S. 494, 52 S.Ct. 621, 626, 76 L.Ed. 1245); the scope of the ruling and the reasons for it being shown in the following excerpts from the opinion then delivered.

'We are of opinion that the record, opinion, a d decree in the prior suit, here reviewed at length, show very plainly that the decree must be taken as determining the relative rights of the two states, including their respective citizens, to divert and use the waters of the Laramie and its tributaries. These rights were put in issue by the pleadings, displayed in the evidence, and considered and resolved in the opinion. Not only so, but the question of priority in time and right as between the appropriations in Colorado and those in Wyoming was directly presented by the pleadings and evidence and distinctly dealt with and resolved in the opinion.

'As appears from the opinion, the court held that the doctrine, long recognized and enforced in both states, whereby priority of appropriation gives superiority of right, furnished the only equitable and right basis on which to determine the controversy between them shown in the pleadings and evidence.

'And as further appears from the opinion, the court made specific findings showing the amount of water in the available supply, its insufficiency to satisfy all asserted appropriations, the date when the proposed tunnel appropriation in Colorado was initiated, the names and amounts of the appropriations in Colorado which were senior to that appropriation, the amount of water included in the Wyoming appropriations which were senior to it, and the amount which would remain in the supply and be subject to that appropriation after deducting what was required to satisfy the senior appropriations in both states.

'These findings were pertinent to the issues, and upon them the court pronounced its decree. Under a familiar rule the facts thus determined are not open to dispute in a subsequent suit between the same states.'

And again:

'Construing the decree in the light of the record and opinion, to which counsel for both states appeal, we think it was intended to and does define and limit the quantity of water which Colorado and her appropriators may divert from the interstate stream and its tributaries and thus withhold from Wyoming and her appropriators.

'But it is said that water claims other than the tunnel appropriation could not be, and were not, affected by the decree, because the claimants were not parties to the suit or represented therein. In this the nature of the suit is misconceived. It was one between states, each acting as a quasi sovereign and representative of the interests and rights of her people in a controversy with the other. * * * The water claimants in Colorado, and those in Wyoming, were represented by their respective states and are bound by the decree.'

The earlier decree, so construed, confirms and establishes 'the right of the State of Colorado, or of any one ecognized by her as duly entitled thereto,' to divert and take wthin that state

(1) 18,000 acre feet of water per annum from the Laramie river and its tributaries in virtue of the Skyline ditch appropriation;

(2) 4,250 acre feet of water per annum from such stream and its tributaries in virtue of certain meadowland appropriations;

(3) The relatively small amount of water appropriated prior to 1902 from the headwaters of Deadman creek, a tributary of the Laramie river, through the Wilson supply ditch (4) 15,500 acre feet of water per annum from the Laramie river and its tributaries, in virtue of the Laramie-Poudre tunnel appropriation;—and that decree also confirms and establishes the right of the state of Wyoming and her water claimants to receive and divert within that state the remaining waters of the stream and its tributaries in virtue of appropriations prior in time and right to the tunnel appropriation in Colorado. A further provision in the decree enjoins the defendant state from diverting or taking from the river and its tributaries in virtue of the tunnel appropriation any water in excess of the confirmed right to 15,500 acre feet per annum, the reason for limiting the injunction to that appropriation beign that there was no showing of an e igency requiring that it be broader.

In this view of the earlier suit and decree, we further held, in overruling the motion to dismiss the present suit, that the bill contains allegations of such material departures by Colorado and her water claimants from the earlier decree that she should be called upon to answer. Colorado did answer; evidence was then taken and reported by commissioners; and the cause has since been submitted on briefs and oral argument.

The departures from the decree which are charged against Colorado in the bill are of two classes—one comprising diversions under claims not confirmed or recognized in the decree, and the other consisting of diversions under each of the confirmed Colorado claims of more water than the decree accredits to the claim. In the answer Colorado denies that certain of the diversions have been excessive or otherwise contrary to the decree, and admits that other designated diversions have not been in accord with the decree as construed in our opinion overruling the motion to dismiss, but asserts that they have been made in good faith and in accord with what the state's officers have understood the decree to be.

One complaint is of diversions through what are described in the bill and answer as Bob creek ditch, Bob creek extension ditch, Columbine ditch, and Lost Lake reservoir system. These diversions are admitted in the answer. They are made, not under claims recognized or confirmed in the decree, but quite independently of it. Under the decree, as is pointed out in our opinion overruling the motion to dismiss, the Colorado claims which the decree recognizes and confirms are the only ones in virtue of which diversions may be made as against Wyoming and her appropriators. Claims not so recognized and confirmed are excluded. It follows that the diversions just described contravene the decree and infringe Wyoming's rights under it. They were being practiced when the present suit was begun and for a time thereafter, but, when the motion to dismiss was overruled, they were discontinued pending further action by us. Counsel for Colorado now assure us in their brief that the state does not propose to permit a resumption of these diversions if we hold, as we now do, that they contravene the decree. Because of this assurance, which we accept, there is...