Restored to docket for reargument March 6, 1917.
Restored to docket for reargument June 6, 1921.
This is an original suit in this court by the State of Wyoming against the State of Colorado and two Colorado corporations to prevent a proposed diversion in Colorado of part of the waters of the Laramie River, an interstate stream. The bill was brought in 1911, the evidence was
The Laramie is an innavigable river which has its source in the mountains of northern Colorado, flows northerly 27 miles in that State, crosses into Wyoming, and there flows northerly and northeasterly 150 miles to the North Platte River, of which it is a tributary. Both Colorado and Wyoming are in the arid region where flowing waters are, and long have been, commonly diverted from their natural channels and used in irrigating the soil and making it productive. For many years some of the waters of the Laramie River have been subjected to such diversion and use, part in Colorado and part in Wyoming.
When this suit was brought the two corporate defendants, acting under the authority and permission of Colorado, were proceeding to divert in that State a considerable portion of the waters of the river and to conduct the same into another watershed, lying wholly in Colorado, for use in irrigating lands more than fifty miles distant from the point of diversion. The topography and natural drainage are such that none of the water can return to the stream or ever reach Wyoming.
By the bill Wyoming seeks to prevent this diversion on two grounds: One that, without her sanction, the waters of this interstate stream cannot rightfully be taken from
By the answers Colorado and her co-defendants seek to justify and sustain the proposed diversion on three distinct grounds: First, that it is the right of Colorado as a State to dispose, as she may choose, of any part or all of the waters flowing in the portion of the river within her borders, "regardless of the prejudice that it may work" to Wyoming and her citizens; secondly, that Colorado is entitled to an equitable division of the waters of the river and that the proposed diversion, together with all subsisting appropriations in Colorado, does not exceed her share; and, thirdly, that after the proposed diversion there will be left in the river and its tributaries in Wyoming sufficient water to satisfy all appropriations in that State whose origin was prior in time to the effective inception of the right under which the proposed Colorado diversion is about to be made.
Before taking up the opposing contentions a survey of several matters in the light of which they should be approached and considered is in order.
Both Colorado and Wyoming are along the apex of the Continental Divide and include high mountain ranges where heavy snows fall in winter and melt in late spring and early summer, — this being the chief source of water supply. Small streams in the mountains gather the water from the melting snow and conduct it to larger streams
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 the origin and nature of the doctrine, as shown in these decisions, may be summarized as follows: The
As the United States possessed plenary authority over Colorado and Wyoming while they were Territories and
The Act of July 26, 1866, c. 262, § 9, 14 Stat. 251, contained a section providing: "Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same." The occasion for this provision and its purpose and effect were extensively considered by this court in the cases of Atchison v. Peterson, 20 Wall. 507, and Basey v. Gallagher, 20 Wall. 670, the conclusions in both being shown in the following excerpt from the latter, pp. 681-682:
"In the late case of Atchison v. Peterson, we had occasion to consider the respective rights of miners to running waters on the mineral lands of the public domain; and we there held that by the custom which had obtained among miners in the Pacific States and Territories, the party who first subjected the water to use, or took the necessary steps for that purpose, was regarded, except as against the government, as the source of title in all controversies respecting it; that the doctrines of the common law declaratory of the rights of riparian proprietors were inapplicable, or applicable only to a limited extent, to the necessities of miners, and were inadequate to their protection; that the equality of right recognized by that law among all the proprietors upon the same stream, would have been incompatible with any extended diversion of the water by one proprietor, and its conveyance for mining purposes to points from which it could not be restored to the stream; that the government by its silent acquiescence had assented to and encouraged the occupation of the public lands for mining; and that he who first connected his labor with property thus situated
And on the same subject it was further said, in Broder v. Water Co., 101 U.S. 274, 276:
"It is the established doctrine of this court that rights of miners, who had taken possession of mines and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations and for purposes of agricultural irrigation, in the region where such artificial use of the water was an absolute necessity, are rights which the government had, by its conduct, recognized and encouraged and was bound to protect, before the passage of the act of 1866. We are of opinion that the section of the act which we have quoted was rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one."
The Act of July 9, 1870, c. 235, § 17, 16 State. 217, provided that "all patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights" acquired under or recognized by the provision of 1866. These provisions are now §§ 2339 and 2340 of the Revised Statutes.
Of the legislation thus far recited it was said, in United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 706: "Obviously by these acts, so far as they extended, Congress recognized and assented to the appropriation of water in contravention of the common law rule as to continuous flow"; and again, "the obvious purpose of Congress was to give its assent, so far as the public lands were concerned, to any system, although in contravention to the common law rule, which permitted the appropriation of those waters for legitimate industries."
As respects the scope and interpretation of the ultimate conclusion in that case it should be observed, first, that the court was there concerned, as it said, with a controversy between two States, "one recognizing generally the common-law rule of riparian rights" and the other the doctrine of appropriation; secondly, that the diversion complained of was not to a watershed from which none of the water could find its way into the complaining State, but quite to the contrary; and, thirdly, that what the complaining State was seeking was not to prevent a proposed diversion for the benefit of lands as yet unreclaimed, but to interfere with a diversion which had been practiced for years and under which many thousands of acres of unoccupied and barren lands had been reclaimed and made productive. In these circumstances, and after observing that the diminution in the flow of
Like that case the one now before us presents a controversy over the waters of an interstate stream. But here the controversy is between States in both of which the doctrine of appropriation has prevailed from the time of the first settlements, always has been applied in the same way, and has been recognized and sanctioned by the United States, the owner of the public lands. Here the complaining State is not seeking to impose a policy of her choosing on the other State, but to have the common policy which each enforces within her limits applied in determining their relative rights in the interstate stream. Nor is the United States seeking to impose a policy of its choosing on either State. All that it has done has been to recognize and give its sanction to the policy which each has adopted. Whether its public land holdings would enable it to go further we need not consider. And here the complaining State is not seeking to interfere with a diversion which has long been practiced and under which much reclamation has been effected, but to prevent a proposed diversion for the benefit of lands as yet unreclaimed.
With this understanding of the case in hand and of some of the matters in the light of which it should be considered,
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 Kansas v. Colorado and was adjudged untenable. Further consideration satisfies us that the ruling was right. It has support in other cases, of which Rickey Land & Cattle Co. v. Miller & Lux, 218 U.S. 258; Bean v. Morris, 221 U.S. 485; Missouri v. Illinois, 180 U.S. 208, and 200 U.S. 496, and Georgia v. Tennessee Copper Co., 206 U.S. 230, are examples.
The objection of Wyoming to the proposed diversion on the ground that it is to another watershed, from which she can receive no benefit, is also untenable. The fact that the diversion is to such a watershed has a bearing in another connection, but does not in itself constitute a ground for condemning it. In neither State does the right of appropriation depend on the place of use being within the same watershed. Diversions from one watershed to another are commonly made in both States and the practice is recognized by the decisions of their courts. Coffin v. Left Hand Ditch Co., 6 Colo. 443, 449; Thomas v. Guiraud, 6 Colo. 530; Hammond v. Rose, 11 Colo. 524; Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 144; Moyer v. Preston, 6 Wyo. 308, 321; Willey v. Decker, 11 Wyo. 496, 529-531. And the evidence shows that diversions are made and recognized in both States which in principle are not distinguishable from this, that is, where water is taken in one State from a watershed leading into
We are thus brought to the question of the basis on which the relative rights of these States in the waters of this interstate stream should be determined. Should the doctrine of appropriation, which each recognizes and enforces within her borders, be applied? Or is there another basis which is more consonant with right and equity?
The lands in both States are naturally arid and the need for irrigation is the same in one as in the other. The lands were settled under the same public lands laws and their settlement was induced largely by the prevailing right to divert and use water for irrigation, without which the lands were of little value. Many of the lands were acquired under the Desert Land Act which made reclamation by irrigation a condition to the acquisition. The first settlers located along the streams where water could be diverted and applied at small cost. Others with more means followed and reclaimed lands farther away. Then companies with large capital constructed extensive canals and occasional tunnels whereby water was carried to lands remote from the stream and supplied, for hire, to settlers who were not prepared to engage in such large undertakings. Ultimately, the demand for water being in excess of the dependable flow of the streams during the irrigation season, reservoirs were constructed wherein water was impounded when not needed and released when needed, thereby measurably equalizing the natural flow. Such was the course of irrigation development in both
In neither State was the right to appropriate water from this interstate stream denied. On the contrary, it was permitted and recognized in both. The rule was the same on both sides of the line. Some of the appropriations were made as much as fifty years ago and many as much as twenty-five. In the circumstances we have stated, why should not appropriations from this stream be respected, as between the two States, according to their several priorities, as would be done if the stream lay wholly within either Stated By what principle of right or equity may either State proceed in disregard of prior appropriations in the other?
Colorado answers that this is not a suit between private appropriators. This is true, but it does not follow that their situation and what has been accomplished by them for their respective States can be ignored. As respects Wyoming the welfare, prosperity and happiness of the people of the larger part of the Laramie valley, as also a large portion of the taxable resources of two counties, are dependent on the appropriations in that State. Thus the interests of the State are indissolubly linked with the rights of the appropriators. To the extent of the appropriations and use of the water in Colorado a like situation exists there.
Colorado further answers that she can accomplish more with the water than Wyoming does or can; that she proposes to use it on lands in the Cache la Poudre valley, and
Some of the appropriations from the stream in Wyoming are used for agriculture alone. One of the large projects, dating from territorial days, and constructed at
We conclude that Colorado's objections to the doctrine of appropriation as a basis of decision are not well taken, and that it furnishes the only basis which is consonant with the principles of right and equity applicable to such a controversy as this is. The cardinal rule of the doctrine is that priority of appropriation gives superiority of right. Each of these States applies and enforces this rule in her own territory, and it is the one to which intending appropriators naturally would turn for guidance. The principle on which it proceeds is not less applicable to interstate streams and controversies than to others. Both States pronounce the rule just and reasonable as applied to the natural conditions in that region; and to prevent any departure from it the people of both incorporated it into their constitutions. It originated in the customs and usages of the people before either State came into existence, and the courts of both hold that their constitutional provisions are to be taken as recognizing the prior usage rather than as creating a new rule. These considerations persuade us that its application to such a controversy as is here presented cannot be other than eminently just and equitable to all concerned.
In suits between appropriators from the same stream, but in different States recognizing the doctrine of appropriation, the question whether rights under such appropriations should be judged by the rule of priority has been considered by several courts, state and federal, and has been uniformly answered in the affirmative. Conant v. Deep Creek Irrigation Co., 23 Utah. 627, 631; Willey v.
The remaining questions are largely matters of fact. The evidence is voluminous, some of it highly technical and some quite conflicting. It has all been considered. The reasonable limits of an opinion do not admit of its extended discussion. We must be content to give our conclusions on the main questions and make such references to and comment on what is evidential as will point to the grounds on which the conclusions on those questions rest. As to minor questions we can only state the ultimate facts as we find them from the evidence.
The question first in order, and the one most difficult of solution, relates to the flow of the Laramie River, the common source of supply. The difficulty arises chiefly out of the fact that the flow varies greatly in the course of the year and also from year to year.
Colorado's evidence, which for convenience we take up first, is directed to showing the average yearly flow of all years in a considerable period, as if that constituted a proper measure of the available supply. We think it is not a proper measure, — and this because of the great variation in the flow. To be available in a practical sense the supply must be fairly continuous and dependable. No doubt the natural flow can be materially conserved and equalized by means of storage reservoirs, but this has
"With regard to financial practicability of construction of reservoirs on Poudre River capable of conserving extraordinary floods, will state that they call for an expenditure that could be utilized only occasionally. It would be similar to financial proposition of people in Florida preparing to heat their houses in the same manner as those in the northern part of the United States. For years of unusually high flow in the Poudre River, conservation works, to utilize the excess waters in that stream, would have to count on carrying waters over more than one year. The utilization of this water means the presence of population on the land; that population must have a living from year to year and they are not justified in going out on the land and settling to raise a crop only once in three or four years. They must have sufficient to make a living from one year to another, and consequently the investment must be such that there can be sufficient water every year to keep these people on the land, and when water can only be conserved once in every three to five years, there must be provision for carrying over water or the people cannot live. It is a question of population as well as investment. The population has to exist and stay on the ground. From standpoint of investment, conservation
Another of her witnesses said:
"The present storage capacity in the Poudre Valley is such that in some years the reservoirs are not all filled, while in some years they are filled and water runs to waste. . . . It would not be possible to inaugurate a scheme in the Poudre Valley to construct reservoirs to store water from one year of high flow to another where such water is the only source of supply, for the reservoirs would have to be constructed to hold the maximum amount, and if the water has to be carried over for three years the average diversion from the reservoir would be only one-third of its capacity, making the cost per acre prohibitive."
And still another of her witnesses, referring to the unused waters of the Poudre in years of high flow and also to what is contemplated by the defendants in respect of the Laramie, said:
"The really dependable water supply of the District
In accord with these statements, bearing on what is susceptible of use in actual practice, is further evidence coming from Colorado's witnesses and exhibits to the effect that, notwithstanding the great need for water in the Poudre valley and the returns obtained from its use, large amounts of water pass down the stream without use or impounding in the years when the flow exceeds what is termed the average. With the high state of irrigation development in that valley the full capacity of the reservoir system there provided when the proof was taken was 146,655 acre-feet, — an evidence of the limitation inhering in the practical storage of water from such streams.
The Cache la Poudre River heads in the same mountain range as does the Laramie and the conditions which make for a pronounced variation in the natural flow are largely the same with both. The following table compiled from data relating to the Cache la Poudre, furnished by Colorado, will be helpful in illustrating the view of the witnesses, and also ours. We add the third and fourth columns.
VARIATION IN ANNUAL NET DISCHARGE OF CACHE LA POUDRE RIVER. April to October, both inclusive, for 30 years. Taken from Colorado's Exhibit 124. ---------------------------------------------------------------------- | Run-off in | Variance from | Variance from Year. | acre-feet. | average of | average of all | | all. | but four. -------------------------|------------|---------------|--------------- 1884 ___________________ | 666,466 | +369,144 | +403,883 1885 ___________________ | 465,475 | +168,153 | +202,892 1886 ___________________ | 290,392 | - 6,930 | + 27,809 1887 ___________________ | 286,840 | - 10,482 | + 24,257 1888 ___________________ | 155,970 | -141,352 | -106,613 1889 ___________________ | 185,060 | -112,262 | - 77,523 1890 ___________________ | 221,023 | - 76,299 | - 41,560 1891 ___________________ | 257,236 | - 40,086 | - 5,347 1892 ___________________ | 193,790 | -103,532 | - 68,793 1893 ___________________ | 216,730 | - 80,592 | - 45,853 1894 ___________________ | 309,444 | + 12,122 | + 46,861 1895 ___________________ | 344,500 | + 47,178 | + 81,917 1896 ___________________ | 162,340 | -134,982 | -100,243 1897 ___________________ | 332,070 | + 34,748 | + 69,487 1898 ___________________ | 172,290 | -125,032 | - 90,293 1899 ___________________ | 388,591 | + 91,269 | +126,008 1900 ___________________ | 474,573 | +177,251 | +211,990 1901 ___________________ | 339,155 | + 41,833 | + 76,572 1902 ___________________ | 151,636 | -145,686 | -110,947 1903 ___________________ | 345,150 | + 47,828 | + 82,567 1904 ___________________ | 315,437 | + 18,115 | + 52,854 1905 ___________________ | 361,652 | + 64,330 | + 99,069 1906 ___________________ | 279,974 | - 17,348 | + 17,391 1907 ___________________ | 386,224 | + 88,902 | +123,641 1908 ___________________ | 252,843 | - 44,479 | - 9,740 1909 ___________________ | 486,002 | -188,680 | +223,419 1910 ___________________ | 157,514 | -139,808 | -105,069 1911 ___________________ | 205,611 | - 91,711 | - 56,972 1912 ___________________ | 297,722 | + 400 | + 35,139 1913 ___________________ | 217,959 | - 79,363 | - 44,624 ---------------------------------------------------------------------- Average 297,322, including all years. Average 262,583, omitting 1884, 1885, 1900, and 1909.
This table shows that during thirty years — 1884 to 1913 — the yearly flow of the Cache la Poudre ranged from 151.636 to 666,466 acre-feet, that in sixteen of the thirty it fell below the average, and that eight of the sixteen
We have dealt with the matter of the average flow at this length because throughout Colorado's evidence and in her briefs it is treated as if it were a proper measure of the supply available for practical use. It is there applied to the Laramie not only directly, but indirectly by increasing the gaged flow for a particular year or period by percentages derived by comparing the flow of the Poudre for that year or period with the average for the thirty years, including those in which the flow was so extraordinary that concededly much of it neither was nor could be used. Thus water which is not part of the available supply is counted in measuring that supply.
DISCHARGE OF LARAMIE RIVER, WOODS, WYO. April to October, both inclusive, for 9 years. Taken from Colorado's Exhibit 127. ---------------------------------------------------------------------- | | | Variance from Year. | Acre-feet. | Variance from | average of all | | average. | but 1899. ------------------------|------------|---------------|--------------- 1895 __________________ | 220,239 | + 21,694 | + 45,730 1896 __________________ | 108,022 | - 90,523 | - 66,487 1897 __________________ | 251,074 | + 52,529 | + 76,565 1898 __________________ | 117,765 | - 80,780 | - 56,744 1899 __________________ | 390,730 | +192,185 | +216,221 1900 __________________ | 248,105 | + 49,560 | + 73,596 1911 __________________ | 138,240 | - 60,305 | - 36,269 1912 __________________ | 213,407 | + 14,862 | + 38,898 1913 __________________ | 99,221 | - 99,324 | - 75,288 -------------------------------------------------------------------- Average, 198,533, including all years. Average, 174,509, excluding 1899.
Even if the computation was to be made along the lines of something approaching a general average, we think the witness's computation and conclusion are subject to objection in particulars which we proceed to state.
The table shows that the flow for 1899 was extraordinary, so much so that it should have been excluded in computing the average and left to take the general level of the others. Its flow was 216,221 acre-feet in excess of their average. The excess added nothing to the available supply, — that which in practice could be used. The flow for the next year was such that it required no augmentation from 1899. So, the inclusion of 1899 in the computation was, in effect, taking what was not available as a
We do not doubt that it was admissible to compare the data relating to the Laramie with that relating to the Cache la Poudre and to give effect to such conclusions as reasonably were to be drawn from the comparison; but we think there was no justification for the addition which was made to bring the nine years up to the standard of an average year among the thirty covered by the Cache la Poudre table. The addition tended to distort rather than to reflect the available supply. Looking at the Cache la Poudre table, it is evident that the nine years, in combination, would not have appeared short in flow had the four extraordinary years in the thirty been excluded, as they should have been. Besides, a comparison of the two tables shows that the variation in yearly flow in the two streams is not the same and that the difference is such as to preclude a nice calculation such as was here made on the basis of an assumed uniformity. To illustrate: According to one table the flow of the Poudre from April to October, both inclusive, in 1900 was 85,982 acre-feet in excess of that for the same months in 1899, while according to the other the flow of the Laramie for those months in 1899 was 142,625 acre-feet in excess of that for the corresponding period in 1900; and according to one table the flow of the Poudre for those months in 1913 was 73.2 per cent. of that for the same part of 1912, while according to the other the flow of the Laramie for those months in 1913 was 46.5 percent. of that for the same part of 1912.
Assuming that 13,000 acre-feet enter the river from Wyoming between the state boundary and Woods, and are part of the river at the latter point, we think this water should not have been deducted. It is part of the supply available to satisfy appropriations from the stream in Wyoming.
If we exclude the extraordinary flow of 1899, make the needed correction in the flow of 1912 and 1913, and assume the accuracy of the other data, the average becomes 171,204 acre-feet, instead of 198,545, as given by the witness. This requires that the 21,945 acre-feet which were added to cover the flow for the five other months be reduced to 19,023.
When these corrections are made in the witness's data and computation, the result is changed from 217,000 acre-feet to 190,227.
But we are of opinion that the computation and conclusion of the witness, even when revised in the way we have indicated, are based too much on the average flow and not enough on the unalterable need for a supply which is fairly constant and dependable, or is susceptible of being made so by storage and conservation within practicable limits. By this it is not meant that known conditions must be such as give assurance that there will be no deficiency even during long periods, but rather that a supply which is likely to be intermittent, or to be materially deficient at relatively short intervals, does not meet the test of practical availability. As we understand it, substantial stability in the supply is essential to successful reclamation and irrigation. The evidence shows that this is so, and it is fully recognized in the literature on the subject.
The same witness prepared and submitted another table embodying all the data he was able to secure from records
Colorado presented other evidence in the way of general estimates, results of very fragmentary gaging, and opinions based on rough measurements of snow-drifts in the mountainous area about the head of the stream; but we put all of this aside as being of doubtful probative value at best and far less persuasive than the evidence we have been discussing.
Wyoming's evidence was based on the same recorded data that were used by Colorado, and also on actual gaging and measurements by an experienced hydrographer covering the period beginning April 1, 1912, and ending April 30, 1914. Shortly stated, her evidence was to the effect that the actual measured flow at the Pioneer Dam, four miles below Woods, was 198,867 acre-feet from April to December, both inclusive, in 1912, was 109,593 acre-feet for all of 1913 and was 19,181 acre-feet for the first four months of 1914; that the flow for 1912 was somewhat above the average, counting all years; that the flow for 1913 was somewhat more than fifty per cent. of the average, and that the average at Woods and in that vicinity, counting all years, was approximately 200,000 acre-feet. Wyoming's chief witness, the hydrographer, submitted
DISCHARGE OF LARAMIE RIVER AT PIONEER DAM, NEARWOODS, WYO., (Including diversion just above dam by Pioneer Canal)
IN ACRE-FEET. --------------------------------------------------------------------------- | 1912 | 1913 | 1914 ----------------------------------------|--------------|----------|-------- January _______________________________ | ____________ | 2,650 | 3,283 February ______________________________ | ____________ | 2,355 | 3,088 March _________________________________ | ____________ | 3,296 | 4,003 April _________________________________ | 5,534 | 12,674 | 8,807 May ___________________________________ | 40,643 | 38,307 | _______ June __________________________________ | 91,874 | 26,598 | _______ July __________________________________ | 34,863 | 6,825 | _______ August ________________________________ | 7,809 | 3,130 | _______ September _____________________________ | 4,641 | 3,023 | _______ October _______________________________ | 6,456 | 3,812 | _______ November ______________________________ | 4,403 | 3,677 | _______ December ______________________________ | 2,644 | 3,246 | _______ |--------------|----------|-------- Total _____________________________ | 198,867 | 109,593 | 19,181 ---------------------------------------------------------------------------
The evidence does not permit us to doubt the accuracy of these data. They were obtained by work which is shown to have been painstakingly and conscientiously done by one fully competent to do it. The place at which it was done was well adapted to obtaining accurate results and the observations were continuous, not merely occasional or intermittent.
As the gaging did not cover the first three months of 1912, it is necessary to arrive at the flow for those months. The proof shows that the flow for the same months in 1914 fairly may be taken for the purpose. That was 10,374 acre-feet, the addition making 209,241 acre-feet for 1912. The flow for 1913 was 109,593 acre-feet. Both should be increased 4,000 acre-feet to cover water diverted between Woods and the Pioneer Dam and not returning
In diverting and applying water in irrigation there is a material loss through evaporation, seepage and other wise which is unavoidable. The amount varies according to the conditions, — chiefly according to the distance the water is carried through canals and ditches and the length of time it is held in storage. Where the places of use are in the same watershed and relatively near the stream, as is true of the lands on the Laramie Plains served by the greater part of the Wyoming appropriations, a substantial amount of water percolates back into the stream from irrigated areas and becomes available for further use lower down the stream. This is called return water. The amount varies considerably and there are no definite data on the subject. As respects irrigation on the Laramie Plains above the Wheatland diversion, the evidence satisfies us that the return water will certainly more than counter-balance the loss through evaporation and otherwise when the period of storage is not more than from one year to the next.
What has now been said covers the substance of the evidence, as we regard it, bearing on the available supply at Woods and in that vicinity, that is to say, the supply remaining after the recognized Colorado appropriations are satisfied.
We already have indicated that, as to such a stream as this, the average flow of all years, high and low, cannot
But Wyoming takes the position that she should not be required to provide storage facilities in order that Colorado may obtain a larger amount of water from the common supply than otherwise would be possible. In a sense this is true; but not to the extent of requiring that the lowest natural flow be taken as the test of the available supply. The question here is not what one State should do for the other, but how each should exercise her relative rights in the waters of this interstate stream. Both are interested in the stream and both have great need for the water. Both subscribe to the doctrine of appropriation, and by that doctrine rights to water are measured by what is reasonably required and applied. Both States recognize that conservation within practicable limits is essential in order that needless waste may be secured. This comports with largest feasible use may be secured. This comports with the all-pervading spirit of the doctrine of appropriation and takes appropriate heed of the natural necessities out of which it arose. We think that doctrine lays on each of these States a duty to exercise her right reasonably and in a manner calculated to conserve the common supply. Notwithstanding her present contention, Wyoming has in fact proceeded on this line, for, as the proof shows, her appropriators, with her sanction, have provided and have in service reservoir facilities which are adapted for the
There is one respect, requiring mention, in which Colorado's situation differs materially from that of Wyoming. The water to satisfy the Colorado appropriations is, and in the nature of things must be, diverted in Colorado at the head of the stream; and because of this those appropriations will not be affected by any variation in the yearly flow, but will receive their full measure of water in all years. On the other hand, the Wyoming appropriations will receive the water only after it passes down into that State and must bear whatever of risk is incident to the variation in the natural flow. Of course, this affords no reason for underestimating the available supply, but it does show that to overestimate it will work particular injury to Wyoming.
The lowest established flow was that of 1913. There is no claim or proof that in any other year the flow fell so low. Had there been others some proof of it doubtless would have been presented. This is also true of the very low flow of 1896. Therefore we think it reasonably may be assumed that the flow of those years was so exceptional that it is not likely to recur save at long intervals.
We conclude in view of all the evidence, and of the several considerations we have stated, that the natural and varying flow of this stream at Woods, which is after the recognized Colorado appropriations are satisfied, is susceptible by means of practicable storage and conservation of being converted into a fairly constant and dependable flow of 170,000 acre-feet per year, but not more. This we hold to be the available supply at that point after the recognized Colorado diversions are made. The amount may seem large, but, considering what may be accomplished with practicable storage facilities, such as are already provided, and the use which may be made of
The problem to be worked out in obtaining fairly dependable supply in that amount is measurably illustrated by the following table covering all the years for which the evidence supplies the requisite data, the flow during the missing months being fairly estimated.
---------------------------------------------------------------------------- | | | Variance | Year. | Acre-feet. | Variance from | from average | Variance from | | average of all. | of all but | 170,000. | | | 1899. | ---------------|------------|-----------------|--------------|-------------- 1889 _________ | 151,349 | -56,893 | -38,576 | -18,651 1890 _________ | 187,406 | -20,836 | -2,519 | +17,406 1891 _________ | 226,146 | +17,904 | +36,221 | +56,146 1895 _________ | 239,239 | +30,997 | +49,314 | +69,239 1896 _________ | 127,022 | -81,220 | -62,903 | -42,978 1897 _________ | 270,074 | +61,831 | +80,14 | +100,074 1898 _________ | 136,765 | -71,477 | -53,160 | -33,235 1899 _________ | 409,730 | +201,488 | +219,805 | +239,730 1900 _________ | 267,105 | +58,863 | +77,180 | +97,105 1911 _________ | 157,240 | -51,002 | -32,685 | -12,760 1912 _________ | 213,241 | +4,999 | +23,316 | +43,241 1913 _________ | 113,593 | -94,649 | -76,332 | -56,047 ---------------------------------------------------------------------------- Average 208,242, including all years. Average 189,925, including all years but 1899.
It of course is true that the variation in the flow will not always be just what it was in the years covered by the table, and yet the data obtained by the gaging and measurements in those years show better than anything else what reasonably may be expected in the future. We recognize that the problem which the table is intended to illustrate is not a simple one and that to work it out will involve the exercise of both skill and care. But in this it is not unlike other problems of similar moment. Our belief gathered from all the evidence is that, with the attention which rightly should be bestowed on a problem of such moment, it can be successfully solved within the limits of what is financially and physically practicable.
After passing Woods, and while traversing the territory wherein are the Wyoming appropriations with which we are concerned, the Laramie receives one large and some very small additions to its waters.
The large addition comes from the Little Laramie, a stream whose source and entire length are in Wyoming. Its natural flow is a little more than one-half of that of the main stream at Woods and is subject to much the same variations. Part of its flow is used under appropriations along its course and the remainder passes into the main stream. Including what is appropriated along its course, and excluding minor contributions by small creeks after it gets well away from its headwaters, we think the amount available for practical use is 93,000 acre-feet per year.
None of the small tributaries, whether of the Laramie or the Little Laramie, adds much to the available supply.
It results that, in our opinion, the entire supply available for the proposed Colorado appropriation and the Wyoming appropriations down to and including the diversion for the Wheatland District is 288,000 acre-feet.
In contending for a larger finding, Colorado points to the issue by Wyoming's State Engineer of permits, so-called, for appropriations in excess of that amount and insists that these permits constitute solemn adjudications by that officer that the supply is adequate to cover them. But in this the nature of the permits is misapprehended. In fact and in law they are not adjudications, but mere licenses to appropriate, if the requisite amount of water be there. As to many nothing ever is done under them by
Colorado also comments on the amount of water stored in Wyoming reservoirs in 1912 and seeks to draw from this an inference that the available supply was greater than we have indicated. But the inference is not justified, and for these reasons: First, a part of what was stored was dead water, that is, was below the level from which water could be drawn off and conducted to the places of use. This is a matter commonly experienced in the selection and use of reservoir sites. Secondly, the flow of 1912 was above what could be depended on and prudence required that a substantial part be carried over to meet a possible shortage in the succeeding year. And, thirdly, the evidence shows that in 1912 the storing process was improvidently carried to a point which infringed the rights of small appropriators who were without storage facilities.
The available supply — the 288,000 acre-feet — is not sufficient to satisfy the Wyoming appropriations dependent thereon and also the proposed Colorado appropriation, so it becomes necessary to consider their relative priorities.
There are some existing Colorado appropriations having priorities entitling them to precedence over many of the
The proposed Colorado appropriation which is in controversy here is spoken of in the evidence as the Laramie-Poudre tunnel diversion and is part of an irrigation project known as the Laramie-Poudre project. Colorado insists that this proposed appropriation takes priority, by relation, as of August 25, 1902, and Wyoming that the priority can relate only to the latter part of 1909. The true date is a matter of importance, because some large irrigation works were started in Wyoming between the dates mentioned, were diligently carried to completion, and are entitled to priorities as of the dates when they were started.
The Laramie-Poudre project is composed of several units, originally distinct, which underwent many changes before they were brought together in a single project. In its final form the project is intended to divert water by means of a tunnel from the Laramie River into the Poudre watershed, there to unite that water with water taken from the Cache la Poudre River and then to convey the water many miles to the lower part of the Poudre valley, where it is to be used in reclaiming and irrigating a body of land containing 125,000 acres. It is a large and ambitious project whose several parts, as finally brought
The proposed tunnel diversion from the Laramie was conceived as a possibility by Wallace A. Link in 1897 and was explained by him to Abraham I. Akin in the spring of 1902. Later in the year they visited the headwaters of the two streams, looked over the ground, and agreed that Link's idea was a good one, that the undertaking was large and that they were without the means to carry it through. They concluded to promote the project together; and, thinking their chances of success would be improved by it, they also concluded to construct a ditch, known as the Upper Rawah, from the Laramie valley to a connection with an existing ditch, called the Skyline, and to take water through these ditches into the Cache la Poudre valley and there sell it. By this they hoped to demonstrate that water was obtainable from that source and to obtain money to be used in promoting their project. The Skyline was a fair-sized ditch leading over a low part of the divide to a branch of the Poudre, and they
In 1903 Link and Akin gave to each of three others a one-fifth share in their project, in return for which the new partners were to carry on solicitations to get capitalists interested and to raise money. The results of the solicitations were disappointing, but some investors were brought in and became concerned about the preliminary plans. Differences of opinion arose and had to be dealt with. The plans were examined and reexamined, alternative modes and places of diversion were considered and investigated, particular features were eliminated and others added, and in 1909, but not before, the project was definitely brought into its present form. A short reference to some of the details will serve to make this plain.
In 1905 and 1906 surveys were made to find a route for an open canal from the Laramie around the mountains, through a portion of Wyoming and back to Colorado, which would avoid the construction of a tunnel and the maintenance of ditches in the higher mountain levels; and in 1908 a statement of claim covering such a canal was filed, as was also a claim covering a large channel reservoir nine miles down the stream from the tunnel site. The estimated cost of the canal was given as $1,000,000
In 1907 the Laramie-Poudre Reservoirs and Irrigation Company succeeded to whatever rights the promoters had acquired up to that time, and all subsequent surveys, investigations and filings were made by it. In April, 1909, the Greeley-Poudre Irrigation District, within which the water is intended to be used, was organized. At that time sufficient capital had not been obtained to carry the project through in any form. In September following the irrigation company and the irrigation district entered into a tentative contract, under which the company was to consummate the project in its present form, and, after doing the construction work, was to transfer the property to the district. Payment therefore was to be made in interest-bearing bonds of the district. By a vote taken the next month, the district ratified the contract and authorized the issue of the bonds. About the last of that month the work of boring the tunnel and making the diversion was begun.
It is manifest from this historical outline that the question of whether, and also how, this proposed appropriation should be made remained an open one until the contract with the irrigation district was made and ratified in 1909. Up to that time the whole subject was at large. There was no fixed or definite plan. It was all in an inceptive and formative stage, — investigations being almost constantly in progress to determine its feasibility and
It no doubt is true that the original promoters intended all along to make a large appropriation from the Laramie by some means, provided the requisite capital could be obtained, but this is an altogether inadequate basis for applying the doctrine of relation.
No separate appropriation was effected by what was done on the Upper Rawah Ditch. The purpose to use it in connection with the Skyline was not carried out, but abandoned. This, as Link testified, was its "principal" purpose. The purpose to make it an accessory of the large project was secondary and contingent. Therefore the work on it cannot be taken as affecting or tolling back the priority of that project.
Actual work in making the tunnel diversion was begun as before shown, about the last of October, 1909. Thereafter it was prosecuted with much diligence and in 1911, when this suit was brought, it had been carried so nearly to a state of completion that the assumption reasonably may be indulged that, but for the suit, the appropriation soon would have been perfected. We conclude that the appropriation should be accorded a priority by relation as of the latter part of October, 1909, when the work was begun.
Applying a like rule to the Wyoming appropriations, several of them must be treated as relating to later dates, and therefore as being junior to that appropriation. Some of the projects in that State are founded on a plurality of appropriations, a part of which are senior and a part junior to that one.
The evidence shows that the Wyoming appropriations having priorities senior to the one in Colorado, and which
As the available supply is 288,000 acre-feet and the amount covered by senior appropriations in Wyoming is 272,500 acre-feet, there remain 15,500 acre-feet which are subject to this junior appropriation in Colorado. The amount sought to be diverted and taken under it is much larger.
A decree will accordingly be entered enjoining the defendants from diverting or taking more than 15,500 acre-feet per year from the Laramie River by means of or through the so-called Laramie-Poudre project.
It is so ordered.