Argument for Complainant. 206 U.S. sulting in the injuries hereinbefore enumerated. Thus, the common law rights of Kansas and its citizens have been invaded by a subsequent and different system, framed upon a different theory, and built upon a different basis, and in a different State. These defendants now claim that they should be protected in their different and subsequent systems because they live and operate on the other side of the state line. The right of the complainant and those for whom it sues is a right to the usual and normal flow of the river "as it was accustomed to run" during ordinary years prior to the unlawful diversion complained of, and exclusive of floods and unusual high waters. The right of a riparian owner to the flow of the stream "as it is accustomed to run" in our judgment does not include extraordinary high waters, or floods, or times of unusual drought and low water. The words "as it is accustomed to run" mean in our judgment the normal or usual flow of the river from year to year. In the case of the Arkansas River this is not at all difficult to define. Let us illustrate. Before the unlawful diversion by Colorado there was always a season of high water in June, known as the June rise, caused by the melting snows in the mountains and foot-hills of Colorado, which gradually swelled the current until it was about bank full, at which stage it ran from four to six weeks, from whence it gradually subsided to its normal summer flow. This June rise was as regular as the recurrence of the seasons, not only in time but in volume. It was a part, in short, of the normal flow of the river, as distinguished from the extraordinary floods caused by unusual rainfall either in the mountains or uplands of Colorado or along the tributaries of the river in that State. Our contention is that the June rise was part of the normal flow of the river to which the riparian owners in Kansas were entitled. It fulfilled a great purpose in the economy of the Arkansas Valley in Kansas, filling the river from bank to bank, raising the water-level to a point where the pressure of the water was sufficient to bear in every direction. 206 U.S. Argument for Complainant. The underflow of the Arkansas River in Kansas is a welldefined subterranean stream, distinct from underground or percolating waters, the right to which vests in the owner of the surface, and its unlawful diversion, deprivation or diminution is a substantial wrong, for which equity will grant relief. The use of the water of the river for water power at Arkansas City became a vested right, and as to that right the subsequent diversion of the water by Colorado, decreasing if not wholly destroying such water power, is a continuing wrong which equity will enjoin. The water-power company at Arkansas City used the water of the river for power purposes under the authority of the common law, turning the water back into the Arkansas River after its use. The rights that were built up between the years 1881 and 1890 were property rights under the doctrine of the common law authorizing the diversion of the waters of the stream for these purposes. Kimberly v. Hewitt, 75 Wisconsin, 374; Union Water Power Co. v. Auburn, 90 Maine, 65. The right to use water of a river for furnishing power without diminution of its flow is a riparian right which attaches to the land. It vests in the ownership of the land, and as such it cannot be injuriously affected by the upper riparian owner, as has been done in this case by the diversion of the water in Colorado. The rights of Kansas and those for whom it sues accrued and were vested prior to the existence of Colorado as a State. When, on August 1, 1876, the territory of Colorado was erected into one of the States of the Union and became a political sovereignty, a greater portion of the Arkansas valley had been settled. They had settled upon and bought their lands from the Government and other settlers because of the flow of the Arkansas River, because of the great advantages to be found in this valley, that are set forth in our testimony. They bought under the common law, which attached to all of this territory, and fixed and defined the rights of every landowner from Arkansas City to the Rocky Mountains. These rights so acquired were as sacred to each of these owners as the right Argument for the State of Colorado. 206 U. S. to life or liberty. No court, no State nor the Federal Government, could in any wise impair those rights. 1 Farnham on Waters and Water Rights, p. 29; Pine v. New York, 112 Fed. Rep. 98; Holyoke Water Co. v. River Co., 22 Blatchf. 131; S. C., 20 Fed. Rep. 71; Ruz v. St. Louis, 7 Fed. Rep. 438; Howell v. Johnson, 89 Fed. Rep. 556; Hoge v. Eaton, 135 Fed. Rep. 411; 4 Am. Law Register, 385. Mr. N. C. Miller, Attorney General of the State of Colorado, Mr. Joel F. Vaile and Mr. Clyde C. Dawson, with whom Mr. Charles D. Hayt, Mr. Platt Rogers, Mr. C. W. Waterman, Mr. F. E. Gregg, Mr. W. R. Ramsey and Mr. I. B, Melville were on the brief, for the State of Colorado: The Arkansas River, ut currere solebat, has always been an intermittent stream, and, in times of low water, has been a "broken river." From the earliest times the Arkansas River through Western Kansas has been merely a bed of sand, with practically no flowing water during a large part of the year, and this strip of bare sand bed separates the perennial Arkansas of Southern Kansas from the perennial Arkansas of Colorado during all times of low water, making a "broken river." This fact is so thoroughly established by written history and oral testimony as to preclude any possible refutation. The diversion and use of the waters of the Colorado Arkansas have not diminished the "low water" flow of the river in Kan sas. The diversion and use of the waters of the Colorado Arkansas have not diminished the so-called "underflow" in the Arkansas valley in Kansas. The diversion and use of the waters of the Colorado Arkansas have not caused the bed of the stream in Kansas to be narrowed, nor islands to form therein, nor the dangers from flood to increase. Colorado, relying upon its right to utilize the waters of its natural streams upon adjacent lands, has converted arid and 206 U. S. Argument for the State of Colorado. uninhabited wastes into populous districts, with productive farms and thriving towns and industries. Colorado is essentially an arid State, and, except in isolated places, irrigation is absolutely necessary to the successful cultivation of the land. Even if Kansas possesses riparian rights to the full extent claimed by her, yet she has no right of action in the absence of injury, inflicted or threatened. The evidence has been taken. We respectfully insist that absolutely no injury has been shown. This is not even a case of damnum absque injuria, because we may fairly say that no damage has been proved to result in the slightest degree from Colorado irrigation in any of the particulars alleged in the amended bill. See Missouri v. Illinois, 200 U. S. 496. The owners of lands bordering on the Arkansas River in Kansas have no vested rights in the Arkansas River which complainant as parens patriæ can assert against the defendants. Angell on Watercourses, 7th ed., §5; Tyler v. Wilkinson, 4 Mason, 397; Tomlin v. Dubuque, &c. R. R. Co., 32 Iowa, 106; People v. Appraisers, 33 N. Y. 461; Wood v. Fowler, 26 Kansas, 682; Crawford v. Hathaway, 93 N. W. Rep. 781. Under the principles of the common law which have resulted in the doctrine of "riparian rights," the inhabitants of arid lands along the upper reaches of the Arkansas River have a prior right ex jure naturæ to the beneficial use of its water to the full extent required for their adequate sustenance and welfare. Riparian rights at common law include the right to irrigate riparian lands. Clark v. Allaman, 80 Pac. Rep. 571, 584; Crawford Co. v. Hathaway (Neb.), 93 N. W. Rep. 781; S. C., Crawford Co. v. Hall (Neb.), 60 L. R. A. 889, 897; Weston v. Alden, 8 Massachusetts, 135, 136. See also Anthony v. Lapham, 5 Pick. 175; Elliott v. Fitchburg R. R. Co., 10 Cush. 191, 194; Hazeltine v. Case, 46 Wisconsin, 391, 394; Evans v. Merriweather, 3 Scam. (Ill.) 492, 496; Wadsworth v. Tillotson, 15 Connecticut, 366; Rhodes v. Whitehead, 27 Texas, Argument for the United States. 206 U.S. 304, 310; 30 Am. & Eng. Enc. of Law, 2d ed. (b), 358, and authorities cited in Note 1, 359. To hold that under given conditions the natural wants of man may justify him in diverting a watercourse for the irrigation of his arid lands is not a departure from the common law. It is a question of the proper application of the principles of the common law. The common law recognizes clearly the right to irrigate as a riparian right. The question of the rank of that right as compared with other uses is a question to be determined by circumstances and conditions, and the necessities of humanity. The common law, by its very nature, and the principles which compose it, looks to these special circumstances to determine the scope and limitation of a general rule when applied to a particular case. Many authorities say that in America we have adopted the common law of England, only so far as it is suited to the conditions and wants of our people, even though the expressed letter of the statutory adoption may be more strongly expressed. All such statements of the rule sustain also the doctrine that in construing the common law as to its application, we should, within the reasonable limits of the general principles involved, be guided by the conditions and wants of the people. Van Ness v. Pacard. 2 Pet. 137, 144, 145; Wheaton et al. v. Peters et al., 8 Pet. 591, 659. In view of the condition and wants of the people of the arid section of the United States, the use of water in the irrigation of lands takes the rank of a necessary use, affected by the same rules as apply to other necessary uses of humanity as recognized by the common law. The Solicitor General, Mr. Assistant Attorney General Campbell and Mr. A. C. Campbell, with whom The Attorney General was on the brief, for the United States: The United States does not agree with either State. Their powers of internal police are exhausted at the boundary, and yet the effects are claimed to pass beyond. There is a con |