WYOMING V. COLORADO, 259 U. S. 419 (1922)

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U.S. Supreme Court

Wyoming v. Colorado, 259 U.S. 419 (1922)

Wyoming v. Colorado

No. 3, Original

Argued December 6, 7, 8, 1916

Restored to docket for reargument March 6, 1917

Reargued January 9, 10, 11, 1918

Restored to docket for reargument June 6, 1921

Reargued January 9, 10, 1922

Decided June 5, 1922

259 U.S. 419


1. The waters of an innavigable stream rising in one state and flowing into a state adjoining may not be disposed of by the upper state as she may choose, regardless of the harm that may ensue to the lower state and her citizens. P. 259 U. S. 466.

2. The relative rights of two adjoining states to the use of an innavigable interstate stream must be determined in accordance with right and equity and in harmony with the constitutional principle of state equality. Pp. 259 U. S. 465, 259 U. S. 470.

3. This does not imply an equal division of the water between the two states. P. 259 U. S. 465. Kansas v. Colorado, 206 U. S. 46.

4. The doctrine of appropriation, by which priority of appropriation gives superiority of right, affords the only equitable basis for determining this controversy, in which Wyoming seeks to prevent diversion of water from the headwaters of the Laramie River in Colorado for use in irrigating Colorado lands, to the detriment of prior irrigation appropriations made from the same stream in Wyoming. P. 259 U. S. 467.

So held in view of the early adoption and continual practice of the doctrine in both jurisdictions alike, sanctioned by the United States as owner of the public lands, its perpetuation in the constitutions of both states at the times of their creation as a doctrine already existing and essential to their natural conditions, its.relation to the settlement and irrigational and agricultural enterprises in both, and the recognition in both of the right to appropriate water from interstate streams.

5. In applying the doctrine of appropriation in this case, private appropriations should be recognized in the order of their priority, as they would be if the stream lay wholly in either state. Pp. 259 U. S. 468, 259 U. S. 470. chanrobles.com-red

Page 259 U. S. 420

6. Such recognition of private rights held not inappropriate in a suit between the two states in view of the relation of the appropriations to taxable values, and to the welfare, prosperity, and happiness of people in each state. P. 259 U. S. 468.

7. Inasmuch as the doctrine of appropriation, as it exists within these two states, was adopted and practised from the beginning with the sanction of the United States as owner of the public lands, and inasmuch as the United States does not now seek to impose any policy of its own choosing on either state, the question whether, in virtue of such ownership, it might do so, is not here considered. P. 259 U. S. 465.

8. The fact that the proposed diversion is to another watershed from which Wyoming can receive no benefit is not, in itself, a valid objection, since like diversions are made and recognized as lawful in both states. P. 259 U. S. 466.

9. The doctrine of appropriation lays upon each state a duty to exercise her right reasonably and in a manner calculated to conserve the common supply. P. 259 U. S. 484.

10. The evidence establishes:

(a) The average yearly flow of the Laramie River, in Wyoming, is not a proper measure of the supply practically available there from year to year. P. 259 U. S. 471.

(b) Computation should be based on the unalterable need for a supply that is fairly constant and dependable, or susceptible of being made so by storage and conservation within practicable limits, substantial stability of supply being essential to successful reclamation and irrigation. P. 259 U. S. 480.

(c) The reasonable measure of the supply available in Wyoming for practical use is not the lowest natural yearly flow, but something considerably greater, obtainable by storage. P. 259 U. S. 484.

(d) So measured, the entire supply, from the Laramie and from certain tributaries in Wyoming, available for Wyoming appropriations here involved and for the proposed Colorado appropriation is 288,000 acre-feet per annum. P. 259 U. S. 488.

(e) The Wyoming appropriations senior to the proposed Colorado appropriation require 272,500 acre-feet, and the overplus available for that appropriation is therefore restricted to 15,500 acre-feet, per annum. P. 259 U. S. 496.

11. Permits issued by the state Engineer of Wyoming to appropriate water in specified quantity from the stream are mere licenses, and not adjudications that a surplus subject to appropriation exists. P. 259 U. S. 488. chanrobles.com-red

Page 259 U. S. 421

12. The proposed Colorado appropriation is to be dated from the time when the project became a fixed plan with a definite purpose, and when work upon it was begun, not related back to an earlier date when the project was inceptive and uncertain, and, by the same rule, several of the Wyoming appropriations are treated as relating to date later than those claimed for them. Pp. 259 U. S. 490-495.

This was an original suit, brought in this Court by the State of Wyoming against the State of Colorado and two Colorado corporations, for the purpose of preventing a diversion of part of the water of the Laramie River, a stream flowing from Colorado into Wyoming. The facts are fully stated in the opinion, post, 259 U. S. 455. The bill was filed on May 29, 1911. A motion to dismiss, equivalent to a demurrer, was argued and, on October 21, 1912, was overruled without prejudice. The case was argued, and twice reargued, on final hearing, the United States participating in the last two arguments, by leave of the court. chanrobles.com-red

Page 259 U. S. 455


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