Right of Cities to Water From the Arid Regions
Legal Status of Municipal Use of Water From Rivers and Streams Arising in the Desert Country—Some Court Decisions
THIS paper treats of a very interesting legal phase of water supply which affects those cities which use the waters of rivers and streams arising in the arid regions of the United States:
Every state of the Southwest is crossed by rivers that have their rise and much of their drainage areas in the Arid Regions. Colorado is the mother of more great rivers than any other state in the Union, and its climate has high claim to be called arid. The Platt, the Kansas, the Arkansas, the Rio Grande and the Colorado Rivers all rise there.
Kansas is crossed by the Kansas and Arkansas Rivers and their tributaries. The Missouri River, which heads in Montana and Wyoming, two of the arid states, bisects Missouri. Oklahoma and Arkansas are crossed by the Arkansas River, and the former state also holds the Cimarron and Canadian Rivers that flow from the mountains of New Mexico. Besides the bather of Waters, Louisiana is also crossed by the Red River from the high plains of northern Texas. The nine larger rivers of Texas, from the Red to the Rio Grande, all rise in the arid regions of that state, and New Mexico and Colorado. New Mexico is bisected by the Rio Grande, its largest river, whose bed is nearly dry for scores of miles below the great dam near Engle, during a part of each year. Arizona is bounded by the Colorado River, and crossed by the Gila whose disappearing waters come down from the mountains that divide its own arid plains.
Cities That Divert Rivers
More than one hundred cities in these states divert their water supplies from surface streams, and the majority of these cities use the waters of the rivers above named or their tributaries. Among the larger of these cities that divert their water supplies from rivers are Denver using the South Platt River, and Pueblo using the Arkansas. Topeka takes water from the Kansas River, and Kansas City, Kansas, diverts the Missouri, as do also Kansas City and Saint Joseph, Missouri. Tulsa pumps from the Arkansas River, and Oklahoma City diverts the Canadian.
Right to Water in the Arid Regions
Fort Smith drinks Porteau water, and Little Rock is another of the cities supplied by the Arkansas River. Shreveport diverts the Red River, and New Orleans the Mississippi. Water from the Trinity River supplies Dallas, and Austin uses the Colorado River of Texas. Santa Fe takes water on its way to the Rio Grande, and Yuma diverts the Colorado, both international rivers.
Each of the above rivers rises in the Arid Regions and has much of its bed therein, save only the Mississippi, and most of them cross state lines.
The foregoing instances are sufficient to illustrate the fact that scores of cities in the Southwest divert their water supplies from interstate rivers that lie partly in the Arid Regions and partly in the well watered sections of the Great Valley and Gulf Coast. It follows that the right to use these rivers for public water supplies depends not only on the riparian rules of the common law. but also on principles of diversion peculiar to the Arid Regions. It also follows that a water works on one of these interstate rivers finds its power to divert the stream affected by the conditions and laws of two states, that are often at variance.
The situation of water works on rivers that rise in the Arid Regions and flow across two or more states is thus one of peculiar difficulty, as appears on examination of the legal principles under which they must operate.
Riparian Rights At Common Law
The classic statement by Chancellor Kent of rights at common law to flowing water, that is the law of England as adopted with slight modifications by all states of the Union, except those in the Arid Regions, has been quoted with approval by the Supreme Court of the United States, as follows:
“Every proprietor of lands on the banks of a river has naturally an equal rivht to the use of the water which flows in the stream adiacent to his lands, as it was wont to run (currere solebat) without diminution or alteration. No proprietor has a right to use the water, to the prejudice of other proprietors, above or below him, unless he has a prior right to divert it. or a title to some exclusive enjovment. He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere ut currere solebat is the language of the law. Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate.” United States v. Rio Grande Irrigation Co., 174 U. S. 690, 702.
Under above rule of the common law, a water works must have legislative authority to divert a river, and must pay compensation for any damages to lower riparian owners on the stream, but may then generally rest secure, except in some contingencies that seldom arise. Where the law as to prior appropriation, as practised in the Arid Regions prevails, however, a water works for public supply is subject to other and greater difficulties.
Law of Prior Appropration
Origin, substance and operation of the law as to prior diversion was stated by the Supreme Court of the United States in a recent suit as to water rights between two states in the Arid Regions, as follows:
“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 practical operation of this doctrine. The relevant views of tnc origin and nature of the doctrine, as shown in these decisions, may be summarized as follows: The 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.” Wyoming v. Colorado, 259 U. S. 419, 458.
By a series of acts beginning with that of July 26, 1866, 14 Statutes 251, down to the National Reclamation Act of June 17, 1902, 32 Statutes 388, Congress has recognized and assented to the appropriation of the water of streams in the Arid Regions, in contravention of the common law rule as to continuous flow, and declared in the Reclamation Statute.
“That the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.” Section 8.
Above the rights of individuals, cities and states to divert water, however, stands the power of the United States to protect land that it owns on the banks of streams in the use of water, and to control navigable rivers. This power was thus defined by Judge Brewer in a leading case:
“Although this power of changing the common law rule as to streams within its dominion undoubtedly belongs to each State, yet two limitations must be recognized: First, that in the absence of specific authority from Congress a State cannot by its legislation destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters: so far at least as may he necessary for the beneficial uses of the government property. Second, that it is limited by superior power of the General Government to secure the uninterrupted navigability of all navigable streams within the limits of the United States. In other words, the jurisdiction of the General Government over interstate commerce and its natural highways vests in that Government the right to take all needed measures to preserve the navigabilty of the navigable water courses of the country even against any state action.” United States v. Rio Grande Irrigation Co., 174 U. S. 690, 703.
The case just cited arose on the plan to build a dam across the Rio Grande River at Elephant Butte, about 125 miles above El Paso, and to divert most of the water there that had not previously been appropriated, under authority of the Territory of New Mexico. Water so diverted was to be devoted to irrigation, to the supply of cities and for manufacturing purposes. An injunction was asked by the United States to prevent construction of the proposed dam, on the ground that the Rio Grande had been navigated bv steamboats from its mouth to Roma, Texas, a distance of 350 miles, that it could be made navigable to within 350 miles of El Paso, that it was navigable along certain parts of its course in New Mexico, and that the intended diversion at Elephant Butte would seriously diminish the capacity of the river for navigation from that point to its month.
In support of his bill the Attorney General cited the Act of Congress September 19, 1890, 26 Statutes 454, which provide in Section 10,
“That the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction, is hereby prohibited.”
Referring to the statute just cited and the facts stated, Judge Brewer said in the opinion of the Supreme Court:
“It is urged that the true construction of this act limits its applicability to obstructions in the navigable portion of a navigable stream, and that as it appears that although the Rio Grande may be navigable for a certain distance above its mouth, it is not navigable in the Territory of New Mexico, this statute has no applicability. The language is general, ami must be given full scope. It is not a prohibition of any obstruction to the navigation, but any obstruction to the navigable capacity, and anything, wherever done or however done, within the limits of the jurisdicdiction of the United States which tends to destroy the navigable capacity of one of the navigable waters of the United States is within the terms of the prohibition. Evidently Congress perceiving that the time had come when the growing interests of ccmmcrce required that the navigable waters of the United States should be subjected to the direct control of the National Government, and that nothing should be done by any State tending to destroy that navigability without the explicit assent of the National to destroy that navigability without the explicit assent of the v. Rio Grande Irrigation Co., 174 U. S. 690, 708.
The court of New Mexico had dismissed the petition of the United States, but the decree of the Supreme Court in this case was as follows:
“Reversed and the case remanded with instructions to set aside the decree of dismissal, and to order an inquiry into the question whether the intended acts of the defendants in the construction of a dam and in appropriating the waters of the Rio Grande will substantially diminish the navigability of that stream within the limits of present navigability and if so, to enter a decree restraining those acts to the extent that they will so diminish.”
If the question of navigation is not involved, perhaps the most important fact bearing on supply of water to cities from rivers in the Arid Regions is that the total volume of water flowing naturally, or made available by storage, is generally less than that required by irrigation during the season, so that when irrigation is satisfied none remains for the cities. This condition has not yet been reached in some sections, but it is potential everywhere in the Arid Regions.
The simplest case is where a water works by direct diversion or by purchase has obtained a prior right to enough water from a river that flows in only one state of the Arid Regions to meet the present demands of a city. Right of the city being limited by beneficial use of the water, other appropriations of any surplus in the river will be made while the population grows, so that, when the city requires a larger supply, water rights must be brought up stream, at their then value. In a state where the common law of riparian rights prevails, the management of a water works naturally provides a large surplus supply for future years, but this appears to be impracticable in the Arid Regions unless some beneficial use can be made of the water meantime.
If a river flows across two or more arid states, a city of a lower state may find that later appropriators in an upper state are diverting water to which the city would have title if it reached the lower state, by right of prior appropriation.