tivated, and total value of farm products | that it has had in Kansas, and that the barin these several counties for the years 1880, | renness which characterized portions of the 1890, and 1900: territory of Colorado would have continued These tables disclose a very marked de- | velopment in the population, area of land cultivated, and amount of agricultural products. Whatever has been effective in bringing about this development is certainly entitled to recognition, and should not be wantonly or unnecessarily destroyed or interfered with. That this development is largely owing to irrigation is something of which, from a consideration of the testimony, there can be no reasonable doubt. It has been a prime factor in securing this result, and before, at the instance of a sister state, this effective cause of Colorado's development is destroyed or materially interfered with, it should be clear that such sister state has not merely some technical right, but also a right with a corresponding benefit. Ford Edwards Barton It may be asked why cultivation in Colorado without irrigation may not have the Pawnee same effect that has attended the cultivation in Kansas west of where it was productive when the territory was first settled. It may possibly have such effect to some degree, but it must be remembered that the land in Colorado is many hundred feet in elevation above that in Kansas; that large portions of it are absolutely destitute of sod, and that cultivation would have comparatively little effect upon the retention of water. Add further the fact that the rainfall in Colorado is less than that in Kansas, and it would seem almost certain that reliance upon mere cultivation of the soil would not have anything like the effect in *Colorado 20,812 30,271 21,538 34,478 30,156 104,793 186,552 178,909 We have been furnished by the United States Census Office with statistics of the corn and wheat crops of those counties from the years 1889 to 1904. Corn, wheat, and hay are the leading crops in Kansas. It would unnecessarily prolong this opinion to copy these tables in full, so we give the figures for 1890, 1895, 1900, and 1904: KANSAS v. COLORADO. Acreage and Production of Corn and Wheat in Kansas-13 Counties. YEAR COUNTY. CORN. WHEAT. ACRES. BUSHELS. ACRES. BUSHELS. 1800 1895 YEAR COUNTY. ACRES. BUSHELS. ACRES. BUSHELS 1900 1904 27 S. C.-43. 673 113 Comparing the tables of population it will | in these western counties, which promised be perceived that both the counties in Colo- to be valuable in supplying water, and thus rado and Kansas made a considerable in- increasing the productiveness of the lands in crease in the years from 1880 to 1890; that the vicinity of the stream, and it is true while the Colorado counties continued their that those ditches have ceased to be of much increase from 1890 to 1900, the Kansas value, the flow in them having largely dicounties lost. As the withdrawal of water minished. in Colorado for irrigating purposes became It cannot be denied, in view of all the tessubstantially effective about the year 1890, timony (for that which we have quoted is it might, if nothing else appeared, not un- but a sample of much more bearing upon reasonably be concluded that the diminished the question), that the diminution of the. flow of the river in Kansas, caused by the flow of water in the river by the irrigation) action of Colorado, had resulted in making of Colorado has worked some detriment to' the land more unproductive, and hence in the southwestern part of Kansas, and yet, duced settlers to leave the state. As against when we compare the amount of this detrithis it should be noted, as a matter of his- ment with the great benefit which has obtory, that in the years preceding 1890, Kan-viously resulted to the counties in Colorado, sas passed through a period of depression, it would seem that equality of right and with crops largely a failure in different equity between the two states forbids any parts of the state. But, more than that, in interference with the present withdrawal of 1889 Oklahoma, lying directly south of Kan-water in Colorado for purposes of irrigasas, was opened for settlement and imme- tion. diately there was a large immigration into that territory, coming from all parts of the West, and especially from the state of Kansas, induced by glowing reports of its great possibilities. The population of Oklahoma, as shown by the United States census, was, in 1890, 61,834, and in 1900, 348,331. Turning to the tables of the corn and wheat products, they do not disclose any marked injury which can be attributed to a diminution of the flow of the river. While there is a variance in the amount produced in the different counties from year to year, it is a variance no more than that which will be found in other parts of the Union, and although the population from 1890 to 1900 in fact diminished, the amount of both the corn and wheat product largely increased. Not only was the total product increased, but the productiveness per acre seems to have been materially improved. Take the corn crop, and per acre, it was, in 1890, 12 bushels and a fraction; in 1895, 21 and a fraction; in 1900, 15; and in 1904, 28 bushels. Of wheat, the product per acre in 1890 was nearly 15 bushels; in 1895 it was only about 3 bushels. (For some reason, while that was a good year for corn, it seems to have been a bad year for wheat.) But in 1900 the product per acre rose to 19 bushels, and in 1904 it was 12 bushels. Many other matters have been presented and discussed. We have examined and fully considered them, but, as heretofore stated, we shall have to content ourselves with merely general observations respecting them. Evidence has been offered of an alleged underflow of the river as it passes through the state of Kansas, and it seems to be the contention on the part of Kansas that beneath the surface there is, as it were, a second river, with the same course as that on the surface, but with a distinct and continuous flow as of a separate stream. We are of the opinion that the testimony does not warrant the finding of such second and subterranean stream. If the bed of a stream is not solid rock, but earth, through which water will percolate, and, as alleged in plaintiff's bill, the "valley of the river in the state of Kansas is composed of sand covered with alluvial soil," undoubtedly water will be found many feet below the surface, and the lighter the soil the more easily will it find its way downward and the more water will be discoverable by wells or other modes of exploring the subsurface. Undoubtedly, too, in many cases there may be, corresponding to the flow on the surface, a current beneath the surface; but the presence of such subsurface water, even though in places of considerable amount and runThese are official figures taken from the ning in the same direction, is something United States census reports, and they tend very different from an independent subsur strongly to show that the withdrawal of the face river flowing continuously from the water in Colorado for purposes of irrigation Colorado line through the state of Kansas. has not proved a source of serious detriment It is not properly denominated a second and to the Kansas counties along the Arkansas subsurface stream. It is rather to be river. It is not strange that the western regarded as merely the accumulation of counties show the least development, for, water which will always be found be being nearest the irrigation in Colorado, neath the bed of any stream whose bottom they would be most affected thereby. At is not solid rock. Naturally, the more one time there were some irrigating ditches | abundant the flow of the surface stream and 115 the wider its channel the more of this subsurface water there will be. If the entire volume of water passing down the surface was taken away the subsurface water would gradually disappear, and in that way the amount of the flow in the surface channel coming from Colorado into Kansas may affect the amount of water beneath the subsurface. As subsurface water it percolates on either side as well as moves along the course of the river, and the more abundant the subsurface water the further it will reach in its percolations on either side as well as more distinct will be its movement down the course of the stream. The testimony, therefore, given in reference to this subsurface water, its amount and its flow, bears only upon the question of the diminution of the flow from Colorado into Kansas caused by the appropriation in the former state of the waters for the purposes of irrigation. Equally untenable is the contention of Colorado that there are really two rivers, one commencing in the mountains of Colorado and terminating at or near the state line, and the other commencing at or near the place where the former ends, and, from springs and branches, starting a new stream to flow onward through Kansas and Oklahoma towards the Gulf of Mexico. From time immemorial the existence of a single continuous river has been recognized by geographers, explorers, and travelers. That there is a great variance in the amount of water flowing down the channel at different seasons of the year and in different years is undoubted; that at times the entire bed of the channel has been in places dry is evident from the testimony. In that way it may be called a broken river. But this is a fact common to all streams having their origin in a mountainous region, and whose volume is largely affected by the melting of the mountain snows. Thus, from one of complainant's exhibits furnished by the United States Geological Survey, the mean monthly flow at Cañon City at the mouth of the Royal gorge for the years 1890, 1895, and 1900 is as follows: Arkansas River-Cañon City. Mean Monthly Discharge in Second Feet. Doubtless the variance at different seasons of the year is more regular and more pronounced than in those streams whose sources are only slightly elevated and the rise and fall of whose waters is mainly owing to rains. Contrasting, for instance, the Hudson with the Missouri, illustrates this. When the June flood comes down the Missouri river it is a mighty torrent. One can stand on the bluffs at Kansas City and see an enormous volume of water, extending in width from 2 to 5 miles to the bluffs on the other side of the river, flowing onward with tremendous velocity and force; and yet at other times the entire flow of the Missouri river passes between two piers of the railroad bridge across the river at that point. No such difference between high and low water appears in the Hudson. In the days when navigation west of the Mississippi was largely by steamboats on the Missouri river, it was familiar experience for the flat-bottomed steamboats, drawing but little water, to be aground on sandbars and detained for hours in efforts to cross them. Gen. Doniphan commanded an expedition which marched from Fort Leavenworth, in 1846, up the Arkansas valley and into the territory of New Mexico. He did not enter the valley again until shortly before his death, in 1887, and, when asked what he recog nized, replied that there were one or two? natural objects, like Pawnee rock, that appeared as they did when he marched up the valley; the river was the same, but all else was changed; and the valley, instead of being destitute of human occupation, was filled with farm houses and farms, villages and cities,-something that he had never expected would be seen in his day. Summing up our conclusions, we are of the opinion that the contention of Colorado of two streams cannot be sustained; that the appropriation of the waters of the Arkansas by Colorado, for purposes of irrigation, has diminished the flow of water into the state of Kansas; that the result of that appropriation has been the reclamation of large areas in Colorado, transforming thousands of acres into fertile fields, and rendering possible their occupation and cultivation when otherwise they would have continued barren and unoccupied; that while the influence of such diminution has been of perceptible injury to portions of the Arkansas valley in Kansas, particularly those portions closest to the Colorado line, yet, to the great body of the valley it has worked little, if any, detriment, and regarding the interests of both states, and the right of each to receive benefit through irrigation and in any other manner from the waters of this stream, we are not satisfied that Kansas has made out a case entitling it to a decree. At the same time it is obvious that if the depletion of the waters of the | der the contract, where such release was exriver by Colorado continues to increase | ecuted in performance of the contract rethere will come a time when Kansas may justly say that there is no longer an equitable division of benefits, and may rightfully call for relief against the action of Colorado, its corporations and citizens, in appropriating the waters of the Arkansas for irrigation purposes. quirement that the last payment should be made only when final release in a form apbe given of all claims of any kind or deproved by the Secretary of the Navy should scription under or by virtue of said contract. [Nos. 263 and 264.] 1907. The decree which, therefore, will be en- Argued April 18, 19, 1907. Decided May 13, tered, will be one dismissing the petition of the intervener, without prejudice to the rights of the United States to take such CF ROSS APPEALS from the Court of Claims to review a judgment awarding to the builders of a battle ship a portion of the claims alleged to grow out of a delay versed and remanded with instructions to caused by the Federal government. Reenter judgment for the United States. See same case below, 41 Ct. Cl. 164. Statement by Mr. Justice Brewer: *On November 19, 1890, the William action as it shall deem necessary to preserve or improve the navigability of the Arkansas river. The decree will also dismiss the bill of the state of Kansas as against all the defendants, without prejudice to the right of the plaintiff to institute new proceedings whenever it shall appear that, through a material increase in the depletion of the waters of the Arkansas by Colorado, its corporations or citizens, the substantial interests of Kansas are being injured to the Cramp & Sons Ship & Engine Building Comextent of destroying the equitable appor-ed States to construct what was called pany entered into a contract with the Unittionment of benefits between the two states "Coast-line Battle Ship No. 1," afterwards resulting from the flow of the river. Each known as the battle ship Indiana, for the party will pay its own costs. and ready for delivery to the United States sum of $3,020,000, the ship to be completed within three years from the date of the In closing, we may say that the parties to this litigation have approached the investigation of the questions in the most honorable spirit, seeking to present fully the facts as they could be ascertained from witnesses, and discussing the evidence and questions of law with marked research and ability. Mr. Justice White and Mr. Justice McKenna concur in the result. contract. As a matter of fact the vessel was 19, 1895; but, as the delay was occasioned not completed and delivered until November by the United States, no damages were recoverable from the building company on account thereof. On August 10, 1897, the company commenced this action in the court of claims to recover the sum of $480,231.90. Mr. Justice Moody took no part in the The elements of its claim are thus stated decision of this case. in its petition: For time of organization and plant lost For general care and maintenance of ves- Additional cost of insurance. Total $144,379.50 74,825.00 98,550.00 34,462.55 60,499.91 17,514.94 50,000.00 $480,231.90 On May 10, 1894, as appears from the findings made by the court of claims, an agreement was made between the parties by which moneys not then due by the terms of |