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only to the senior Colorado priorities of 19 second feet), even if by so doing it exhausts the whole flow of the stream and leaves nothing for the New Mexico claimants; and holds that the right so awarded is a vested property right which the two States, although acting with the consent of the United States, lacked power to diminish or modify except by a condemnation proceeding and payment of compensation. No such proceeding was provided for in the Compact and none was had otherwise.

It may be assumed that the right adjudicated by the decree of January 12, 1898 to the Ditch Company is a property right, indefeasible so far as concerns the State of Colorado, its citizens, and any other person claiming water rights there. But the Colorado decree could not confer upon the Ditch Company rights in excess of Colorado's share of the water of the stream; and its share was only an equitable portion thereof.

The claim that on interstate streams the upper State has such ownership or control of the whole stream as entitles it to divert all the water, regardless of any injury or prejudice to the lower State, has been made by Colorado in litigation concerning other interstate streams, but has been consistently denied by this Court. The rule of equitable apportionment was settled by Kansas v. Colorado, 206 U. S. 46, 97. It was discussed again in Wyoming v. Colorado, 259 U. S. 419, 466, where the Court said:

"The contention of Colorado that she as a State rightfully may divert and use, as she may choose, the waters flowing within her boundaries in this interstate stream, regardless of any prejudice that this may work to others having rights in the stream below her boundary, can not be maintained. The river throughout its course in both States is but a single stream wherein each State has an interest which should be respected by the other. A like contention was set up by Colorado in her answer in

26

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Kansas v. Colorado and was adjudged untenable. Further consideration satisfies us that the ruling was right."

And in New Jersey v. New York, 283 U. S. 336, 342–43, the Court said of an interstate stream: "It offers a necessity of life that must be rationed among those who have power over it. New York has the physical power to cut off all the water within its jurisdiction. But clearly the exercise of such a power to the destruction of the interest of lower States could not be tolerated. And on the other hand equally little could New Jersey be permitted to require New York to give up its power altogether in order that the River might come down to it undiminished. Both States have real and substantial interests in the River that must be reconciled as best they may be."

The decree obviously is not res judicata so far as concerns the State of New Mexico and its citizens who claim the right to divert water from the stream in New Mexico. As they were not parties to the Colorado proceedings, they remain free to challenge the claim of the Ditch Company that it is entitled to take in Colorado all the water of the stream and leave nothing for them.*

Second. The declared purpose of the Compact was, as the preamble recites, equitable apportionment:

"The State of Colorado and the State of New Mexico, desiring to provide for the equitable distribution of the waters of the La Plata River and to remove all causes of present and future controversy between them with respect thereto, and being moved by considerations of interstate comity, pursuant to Acts of their respective legislatures, have resolved to conclude a compact for these purposes and have named as their commissioners: Delph

'Washington v. Oregon, 297 U. S. 517, 528. Compare Fowler v. Lindsey, 3 Dall. 411, 412; Arkansas v. Tennessee, 246 U. S. 158, 176.

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E. Carpenter, for the State of Colorado, and Stephen B. Davis, Jr., for the State of New Mexico, who have agreed upon the following articles."

The Supreme Court of Colorado held the Compact unconstitutional because, for aught that appears, it embodies not a judicial, or quasi-judicial, decision of controverted rights, but a trading compromise of conflicting claims. The assumption that a judicial or quasi-judicial decision of the controverted claims is essential to the validity of a compact adjusting them, rests upon misconception. It ignores the history and order of development of the two means provided by the Constitution for adjusting interstate controversies. The compact-the legislative means-adapts to our Union of sovereign States the ageold treaty-making power of independent sovereign nations. Adjustment by compact without a judicial or quasi-judicial determination of existing rights had been practiced in the Colonies," was practiced by the States before the adoption of the Constitution, and had been extensively practiced in the United States for nearly half a century before this Court first applied the judicial means in settling the boundary dispute in Rhode Island v. Massachusetts, 12 Pet. 657, 723-25."

6

The extent of the existing equitable rights of Colorado and of New Mexico in the La Plata River could ob

'Nine colonial boundary agreements are listed by Frankfurter and Landis, The Compact Clause of the Constitution-A Study in Interstate Adjustments (1925) 34 Yale L. J. 685, 730–32.

Five agreements made under the Articles of Confederation have been found. See Frankfurter and Landis, supra note 5, at 732-34. Nine compacts were apparently executed in this period (although five of these were without express Congressional consent). See Frankfurter and Landis, supra note 5, at 735-37, 749-52. See also Ely, Oil Conservation through Interstate Agreement (1933) 371-72, 389-91; (June 1936) 9 State Government 118; Dodd, Interstate Compacts (1936) 70 U. S. L. Rev. 557, 574. The agreement between New Jersey and New York in 1833 put an end to the boundary suit begun in 1829. New Jersey v. New York, 3 Pet. 461, 5 Pet. 284, 6 Pet. 323.

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viously have been determined by a suit in this Court, as was done in Kansas v. Colorado, supra, in respect to rights in the Arkansas River and in Wyoming v. Colorado, supra, in respect to the Laramie. But resort to the judicial remedy is never essential to the adjustment of interstate controversies, unless the States are unable to agree upon the terms of a compact, or Congress refuses its consent. The difficulties incident to litigation have led States to resort, with frequency, to adjustment of their controversies by compact, even where the matter in dispute was the relatively simple one of a boundary. In two such cases this Court suggested "that the parties endeavor with the consent of Congress to adjust their boundaries." Washington v. Oregon, 214 U. S. 205, 217, 218; Minnesota v. Wisconsin, 252 U. S. 273, 283." In New York v. New Jersey, 256 U. S. 296, 313, which involved a intricate problem of rights in interstate waters, the recommendation that treaty-making be resorted to was more specific;10 and compacts for the apportion

"See also Connecticut v. Massachusetts, 282 U. S. 660, 283 U. S. 789 (Connecticut River); New Jersey v. New York, 283 U. S. 336, 805 (Delaware River); Wyoming v. Colorado, 286 U. S. 494, 298 U. S. 573 (Laramie River); Washington v. Oregon, 297 U. S. 517 (Walla Walla River). Three other water apportionment suits are pending in this Court. Colorado v. Kansas, Original No. 6 (Arkansas River); Nebraska v. Wyoming, 295 U. S. 40, Original No. 9 (North Platte River); Texas v. New Mexico, Original No. 11 (Rio Grande).

'The long drawn out irritating boundary litigation, Rhode Island v. Massachusetts, 7 Pet. 651; 11 Pet. 226; 12 Pet. 657, 755; 13 Pet. 23; 14 Pet. 210; 15 Pet. 233; 4 How. 591; was finally settled by a Compact. See Frankfurter and Landis, supra note 5, at 696, 737-38.

10 "We cannot withhold the suggestion, inspired by the consideration of this case, that the grave problem of sewage disposal presented by the large and growing populations living on the shores of New York Bay is one more likely to be wisely solved by coöperative study and by conference and mutual concession on the part of represent

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ment of the water of interstate streams have been

common.

11

Third. Whether the apportionment of the water of an interstate stream be made by compact between the upper and lower States with the consent of Congress or by a decree of this Court, the apportionment is binding upon the citizens of each State and all water claimants, even where the State had granted the water rights before it entered into the compact. That the private rights of grantees of a State are determined by the adjustment by compact of a disputed boundary was settled a century ago in Poole v. Fleeger, 11 Pet. 185, 209, where the Court said:

"It cannot be doubted, that it is a part of the general right of sovereignty, belonging to independent nations, to establish and fix the disputed boundaries between their respective territories; and the boundaries so established and fixed by compact between nations, become conclusive upon all the subjects and citizens thereof, and bind their rights; and are to be treated, to all intents and purposes, as the true and real boundaries. This is a doctrine universally recognized in the law and practice of nations. It is a right equally belonging to the states of this Union; unless it has been surrendered under the Constitution of the United States. So far from there being any pretense of such a general surrender of the right, it is expressly recognized by the Constitution and guarded in its exercise by a single limitation or restriction, requiring the consent of Congress."

In Rhode Island v. Massachusetts, 12 Pet. 657, 725, the Court, discussing the origin and scope of the Compact clause, said:

atives of the States so vitally interested in it than by proceedings in any court however constituted." (p. 313.)

1:

Congress has consented to 15 such compacts, of which 5 have been ratified by two or more of the contracting States. See State Government, supra note 7, at 120-21. See also Ely, supra note 7, at 381-88; Dodd, supra note 7, at 574-78.