Argument for the United States. 206 U.S. Government whose laws, made in pursuance of the Constitution, are declared to be supreme. Consequently, the people of a single State cannot confer a sovereignty which will extend over them. McCulloch v. Maryland, 4 Wheat. 426, 429. As to the particular facts involved, the petition for intervention alleged, and the evidence shows, that within the waterIshed of the Arkansas River in Colorado and Kansas there are about one hundred thousand acres of public arid land, which can only be reclaimed and made habitable by the application thereto of the waters of said stream; that in the arid region of the United States from sixty million to one hundred and fifty million acres of public land now valueless and uninhabited may be reclaimed by irrigation and made to sustain a population of one hundred million persons; that within the forty-seven Indian reservations within the arid region, which reservations aggregate forty-eight million acres, there are located about one hundred and sixteen thousand Indians; that to support them it is necessary to irrigate lands within the reservation; and that the Government is assisting the Indians in reclaiming them. That over ten million acres of land originally arid have already been reclaimed by irrigation at a cost of over two hundred million dollars, and are greater in extent than all the cultivated lands within the New England States. That these lands and improvements are worth not less than five hundred million dollars and support directly and indirectly over five million persons. Of these ten million acres, at least two million are in the State of Colorado, and they are capable of raising crops of the value of over forty million dollars annually. Within the watershed of the Arkansas River in Colorado there are over three hundred thousand acres of irrigated land, and in the same watershed in Kansas, about thirty thousand acres. The relief sought by complainant would require a decree of the court, the principle of which if enforced would be to prevent the reclamation and cultivation of any of the public lands within the arid belt and have the effect of returning to 206 U. S. Argument for the United States. their original condition lands which have already been reclaimed. A decree sustaining Colorado's contention to the effect that it has "plenary and exclusive right and power to control and regulate the use of non-navigable streams within ▾ its boundaries," whether state or interstate, would have the effect, if the doctrine on which it was based was enforced, of measureably limiting the amount of arid lands which would otherwise be reclaimed. In view of these facts, and the further fact that the Government by the so-called Reclamation Act of June 17, 1902, 32 Stats. 388, had adopted a scheme to reclaim its arid lands by irrigation, its interests will undoubtedly be affected one way or the other by any decree or judgment of the court. Hence it has the right to intervene and be heard "before the judgment is given," although it is not to be recognized as a party to the suit, in a technical sense, or entitled to any decree in its favor. Florida v. Georgia, 17 How. 478, 495. As intervenor, the Government admits that the court has jurisdiction of the subject matter of the action. It denies that Kansas owns the bed of the river in said State. It contends that only the shores and beds of navigable waters are reserved to the State by the Federal Constitution, and that within the definition of navigable waters, as set forth in the case of The Daniel Ball, 10 Wall. 557, 563, and approved in the cases of The Montello, 20 Wall. 430, 439; Escanaba Company v. Chicago, 107 U. S. 678, 682; Miller v. New York, 109 U. S. 385, 395; Packer v. Bird, 137 U. S. 661, 666; Leovy v. United States, 177 U. S. 621; Wood v. Fowler, 26 Kansas, 682; and Farnum on Waters, 67; the Arkansas River is not navigable in Kansas, hence the abutting owners on the stream when they obtained title from the Government, also acquired title to its bed. See Railroad Co. v. Schurmeir, 7 Wall. 272, 286, 287; Whittaker v. McBride, 197 U. S. 510; Indiana v. Milk, 11 Fed. Rep. 389; Steinbuchel v. Lane, 59 Kansas, 7; § 2476, Rev. Stats. The evidence shows that the use of the waters of the stream Argument for the United States. 206 U. S. in Colorado for irrigation purposes has not interfered with its navigable capacity where navigation is a recognized fact, hence no duty devolves upon the intervenor to aid complainant in securing a decree to enjoin Colorado from using the waters to the end that navigation be protected and preserved. United States v. Rio Grande Dam & Irrigation Co., 174 U. S. 690, 709. It is indispensable to the future growth and prosperity of the Nation that the public arid lands be reclaimed and cultivated. "Man and the Earth," by Shaler, 73, 74, 120; "Water and Water Rights," 3 Farnum, 1895a. And public policy, which is but the manifest will of the people of the Nation, and which is seen in public acts, legislative, executive and judicial, and which varies with the habits, capacities, opportunities and needs of the people, recognizes that the arid lands in the largest measure possible should be reclaimed, settled and cultivated. Wakefield v. Van Tassell, 66 N. E. Rep. 830; Lux v. Haggin, 10 Pac. Rep. 674, 702; Giant Powder Company v. Oregon &c., 42 Fed. Rep. 470, 474; Jacoby v. Denton, 25 Arkansas, 625, 634; St. Louis Mining Company v. Montana, 171 U. S. 650, 655. See acts of July 26, 1866, 14 Stats. 253; July 9, 1870, 17 Stats. 218; March 3, 1877, 19 Stats. 377; March 3, 1891, 26 Stats. 1096, 1101; August 4, 1894, 28 Stats. 422, sec. 4; June 17, 1902, 32 Stats. 388; also Executive Messages, Cong. Rec., 57th Cong., 1st sess., vol. 35, pp. 85, 86; 2d sess., vol. 36, p. 11; 58th Congress, 2d sess., vol. 38, p. 7, vol. 39, p. 14; and 59th Cong., vol. 40, p. 100; also Atchison v. Petersen, 20 Wall. 507, 513; Basey v. Gallagher, 20 Wall. 670, 681, 682; Tartar v. Spring Creek Co., 5 California, 397; Jennison v. Kirk, 98 U. S. 453, 460; Broder v. Water Company, 101 U. S. 274, 276; Fallbrook Irrigation District v. Bradley, 164 U. S. 112; United States v. Rio Grande Co., 174 U. S. 690; Gutierres v. Albuquerque L. & I. Co.,188 U. S. 545; Clark v. Nash, 198 U. S. 361. Under the strict common law doctrine of riparian rights a riparian owner is entitled to have the stream come to him in its natural state in flow, quantity and quality, and it must go 206 U. S. Argument for the United States. Col. from his land in like manner, unobstructed in its passage. Law Review, No. 8, p. 505. He has a natural and equal right to the use of the water in the stream adjacent to his land without diminution or alteration. He only can employ or suffer the employment of the waters for any purpose. Lux v. Haggin, 10 Pac. Rep. 674, 755. The California doctrine permits a reasonable use of the water of a stream to irrigate riparian lands. What is a reasonable use and what are riparian lands have never been clearly defined by the courts which have approved this doctrine. Upon neither question can the decisions of the courts be harmonized or reconciled. See Lux v. Haggin, supra; Gould v. Eaton, 117 California, 539; Katz v. Walkinshaw, 70 California, 663 and 74 California, 735; Crawford v. Hathaway, supra, and Clark v. Alleman, 80 Pac. Rep. 571; Irrigation Institutions (Mead), 322, 323. The common law doctrine of riparian rights does not exist in Colorado. The doctrine which has been established there is that of appropriation of the waters of streams and the application of the same to beneficial use. See Colorado Constitution, art. 16, sec. 5; Coffin v. Left Hand Ditch Co., 6 Colorado, 443, 447. A State has the right to change the common law rule in respect to the waters of streams within its boundaries, subject to the following limitations: 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 be necessary for the beneficial use of the government property. Second. That it is limited by the superior power of the General Government to secure the uninterrupted navigability of all navigable streams within the limits of the United States. United States v. Rio Grande, &c. Co., supra, p. 703. In Kansas the California doctrine prevails. Clark v. Allaman, supra. The doctrine which has been established in Colorado and the doctrine which seems to prevail in Kansas are in conflict with each other and both cannot be enforced in respect to the waters of the Arkansas River. Argument for the United States. 206 U. S. Stowell v. Johnson, 26 Pac. Rep. 290; Works on Irrigation, 17. The evidence clearly establishes the proposition that the application of either the strict common law doctrine of riparian rights or the so-called California doctrine to the waters of streams in the arid region, state or interstate, would have the result of preventing the reclamation and cultivation of public arid lands and defeat the policy of the Government with respect thereto and would obstruct the administration of the so-called Reclamation Act of June 17, 1902. The evidence further shows that should it be held as contended for by Colorado that a State by reason of its sovereignty has absolute control of and dominion over the waters of an interstate stream while the same are within its boundaries the ultimate effect would be in large measure to prevent the reclamation and cultivation of the public arid lands. But irrespective of the effect of such doctrine the same is untenable as a matter of law. New Hampshire v. Louisiana et al., 108 U. S. 76, 90; Pine v. New York City, 112 Fed. Rep. 98; S. C., 185 U. S. 93; Howell v. Johnson, 89 Fed. Rep. 556; Perkins v. Groff, 114 Fed. Rep. 441; Morris v. Bean, 123 Fed. Rep. 618; S. C., 146 Fed. Rep. 423; Miller & Lux v. Rickey, 127 Fed. Rep. 573; Anderson v. Bassman, 140 Fed. Rep. 10; Willey v. Decker, 73 Pac. Rep. 210. Each State has certain rights to the waters of an interstate stream. The right of either cannot be destroyed by the other. Manifestly the law of neither State extends beyond its boundaries. Neither Colorado nor any of its citizens can by legal proceedings in Kansas acquire the right to appropriate the waters of a stream in Colorado. Pine v. New York City, 185 U. S. 105. When, therefore, a dispute arises in respect to the waters of an interstate stream, such as involved in the present proceeding, the question to be determined is, What rule of law shall be applied, and what tribunal has the power to enforce the rule? The Government contends that this court has the power to find, apply and to enforce the |