whatsoever to Mexico to the use of waters of that stream except by our grace and good will?

Mr. BANNISTER. With respect to the Rio Grande, I am aware that Attorney General Harmon, in Cleveland's administration, rendered an opinion to the effect that, as a matter of strict law, Mexico had no right in the river at all, and I think that is true.

Mr. HAYDEN. The law as enunciated by Attorney General Harmon at that time applies at this moment, so far as the Colorado River is concerned, in the absence of a treaty with Mexico.

Mr. BANNISTER. No; I should say not, Mr. Hayden, as among our States for this reason: That in our case, the Supreme Court being vested with authority to settle controversies between States, has a right not only to apply the rule by which the controversy is to be settled but to formulate it, to create it, as Justice Brewer said, building up gradually a body of interstate law. And then my thought is that, if the Supreme Court possesses this power, it ought to and would discharge that power by creating and formulating a rule that would give a fair quantity of water to each of the States of this basin.

Mr. HAYDEN. That is true as to the States. But as to any controversy between the United States and Mexico over the waters of the Colorado River

Mr. BANNISTER (interposing). I beg your pardon. Well, as between the United States and Mexico, I take the position that Mexico is without any legal right whatsoever in respect to the waters of the Colorado River. She will get just as much as the Federal Government may by treaty choose to give her; and when it comes to that, there are 14 Senators from the Colorado River basin, and it is not to be supposed that Mexico will obtain more than she is entitled to.

Mr. RAKER. When did you people first become interested in taking the attitude that you have relative to building any dams in the Colorado River?

Mr. BANNISTER. Well, it was as soon as the Government and our friends in the lower basin began to think of building the dam. Mr. RAKER. Do you mean by the Government?

Mr. BANNISTER. Well, we never knew up above how the dam was to be built, or by whom. I know that private enterprises have talked of building it. I could name some of them. And the Federal Government has talked of it; and Los Angeles has talked of it.

Mr. RAKER. When and where have the people in whom you are interested and whom you represent ever made any protest against the private concerns, corporations, or individuals, building dams in the Colorado River?

Mr. BANNISTER. Well, I can answer that from personal knowledge. Mr. Girand, of Phoenix, I believe at least, of Arizona-applied for a water-power license for the Colorado River at the mouth of Diamond Creek; and I know that we of Colorado, aided by those of other States, have opposed that application persistently, and thus far successfully. We have had it postponed from time to time. We have had two hearings before the Federal Power Commission; and in each instance the issuance of the license was postponed. We do not want to oppose it at all. We want the lower basin to develop as it wills; it is only that we want it done on terms of safety to us.

Mr. RAKER. Have you made any protest against any other than the Girand project?

Mr. BANNISTER. Not that I know of; but that is because I know of no other application.

Mr. RAKER. I understand that there are applications of other corporations on that river?

Mr. BANNISTER. Oh; there are filings. For instance, I believe that the California Edison Co.-is it?-is one; and some company in which I believe Stetson capital is interested; and I think there are other applications that have been made to the Federal Power Commission.

Mr. RAKER. Will you tell the committee why, now, you are appearing and opposing the Federal Government at this time taking any action, when the people that you are interested with and represent have never taken any action to prevent these private corporations and individuals obtaining rights?

Mr. BANNISTER. Well, I should say in answer to that that I have opposed them with all the power I have had before the Federal Power Commission.

Mr. RAKER. That is only the Girand project?

Mr. BANNISTER. And I have been somewhat bitterly arraigned for having done so.

Mr. RAKER. That is only the Girand project; now tell about the others.

Mr. BANNISTER. I would oppose any others of which I had knowledge. I have not known of any others that have been up. The Federal Power Commission has sent out notices that no license will be granted prior to the ratification of the compact; and we are relying upon that.

Mr. LEATHERWOOD. May I tell you this, Judge Raker? You are seeking information?

Mr. RAKER. Yes.

Mr. LEATHERWOOD. I can speak for one State. Utah has not found it necessary to make any protest, because the Federal Power Commission, as Mr. Bannister has stated, has stopped it.

Mr. BANNISTER. Utah had Mr. Caldwell; its water commissioner, here last year before the Federal Power Commission. Every one of these upper States was represented.

Mr. LITTLE. Does this Colorado River compact make any reference to the allotment to any State?

Mr. BANNISTER. None as between the States; but only as between the groups of States.

Mr. LITTLE. Between the two basins?

Mr. BANNISTER. Yes; between the two basins, if you wish to call them such.

Mr. RAKER. Do I understand you to mean in your statement just given to the commmittee that the building of the Boulder Dam would take all of the annual flow of the river?

Mr. BANNISTER. Physically, I understand it would. I believe the capacity of that is to be about twenty-five or twenty-six million acre-feet, whereas the average flow of the river is 20,500,000 acre

feet.

Mr. RAKER. And your understanding is that the compact, if ratified by the seven States and approved by the Federal Govern

ment, would give these States the power to prevent the prior use. if it lessened the flow in those States-or would compel the water to come down the dam?

Mr. BANNISTER. It would give the upper States the right to hold back 7,500,000 acre-feet.

Mr. RAKER. Well, does not this compact cover all of the water in the river?

Mr. BANNISTER. Well, it treats of all of the water in the river. Mr. RAKER. Does it not say that in 1963, there will be another allocation, and that the compact is intended to cover all the water at any stage, whether surplus or otherwise?

Mr. BANNISTER. Well, when the compact is carried out in its entirety, it will cover and dispose of all of the water of the river. Mr. RAKER. That is the intention of it?

Mr. BANNISTER. Yes.

Mr. RAKER. So that the various States would have the right, if the dam was built in the Colorado River and it became necessary to hold back a sufficient amount of water for what they would claim were their future needs; and if their future needs should develop to the extent they believed, they then could hold back the water so that it could not come to the Boulder Dam?

Mr. BANNISTER. That is true: yes.

Mr. RAKER. And they might by thus holding it back prevent the utilization of the dam after it is built? Let us be frank and fair about this.

Mr. BANNISTER. Well, you will not find me any other way.
Mr. RAKER. I know; but I mean let us get right at that.

Mr. BANNISTER. Mr. Davis could answer that better than I can.
Mr. RAKER. I want it from you as a legal proposition.

Mr. BANNISTER. Well, I can not tell you how high the dam would have to be.

Mr. RAKER. Irrespective of the height of the dam, I am assuming that the dam is built by the Federal Government, and an expenditure of $50,000,000 to $100,000,000 is estimated; and that they installed works for furnishing domestic water, electricity, and irrigation; that if the time should come when the upper States desired to hold back the water under the compact they could hold it back under that compact, to the extent that there would not be water enough at the dam so that these interests that I have named could be supplied: if the water was short they could do that-now, I do not want you to slip off on the question of a high dam.

Mr. BANNISTER. If in any one year the total flow was not more than 7,500,000 acre-feet, it could all be held back; yes. But under the compact there must be settlements every 10 years; and if the upper States were to hold back in one year, then they could not hold back in the next year, even though the effect would be that they would go without water.

Mr. RAKER. Well, that is only for the upper States; but the compact controls all the water for all time?

Mr. BANNISTER. Yes.

Mr. RAKER. And intends to give no one else the right to use the water. Now, assuming that the water becomes short at the Boulder Canyon Dam, and the upper basin desires to hold the water back, it could do so?

Mr. BANNISTER. It could, unless it had already run the quantity it was entitled to under the 10-year period.

Mr. RAKER. Well, I am assuming that it came under the compact, and it was necessary, by virtue of future developments, to take all the water now allocated, and that provided after 1963; they could hold the water back?

Mr. BANNISTER. Yes.

Mr. RAKER. And thus holding it back would be able to make the dam at Boulder Canyon ineffective for use, if it was necessary to have the water-if the water was low; let us include that.

Mr. BANNISTER. I should say it would not render the dam useless, because on the average, there would be for that dam at least 7,500,000 acre-feet of water, and after 1963 an additional allocation for every year. Therefore the dam would, on the average, always have a quantity of water sufficient to dispense for its purposes.

Mr. RAKER. Now, let us put it this way: If the seven or eight million acre-feet was not enough, and the dam was constructed for utilization to a larger amount, and the upper States desired to hold it back, and did hold it back, under the compact they could hold it back and thereby render that construction by the Government to that extent ineffective?

Mr. BANNISTER. Yes; they could render it partially ineffective if, to begin with, it is built larger than it should have been to take care of the water in the southern basin

The CHAIRMAN. There has just been a call of the House, and we will have to adjourn.

Mr. LITTLE. Just one question: Can you give us a reasonable estimate of how many years it will be before you might develop your upper country so as to produce such a condition? Would it be within 100 years?

Mr. BANNISTER. Yes; I should say it would be within 50 years. Mr. LITTLE. Well, can you furnish the figures to justify your estimate? You have come a long distance, and I do not want you to go away without an opportunity to cover everything you want. The CHAIRMAN. Suppose we let him insert that in the record. Mr. LITTLE. Certainly.

Mr. LEATHERWOOD. I think that was covered at the time the compact was formulated.

Mr. LITTLE. My question was not scientific; it is very simple. I asked him how long it will be before you develop your country so that you will need the waters of that dam.

Mr. BANNISTER. Nobody can predict that with certainty. I would Say 50 years ought to cover most of it.

Mr. LITTLE. I do not think that guess is worth much. I could guess 60 years. Give us the figures.

Mr. BANNISTER. I can not give you the figures; I do not think anybody can give you the figures. I know that the city of Denver is in great need of water, and will certainly need it before 25 years. Mr. LITTLE. In other words, your objection is merely a theory, without any figures?

Mr. BANNISTER. No: the objection is a very vital objection.
Mr. LITTLE. It might be; but it is theoretical.

Mr. LEATHERWOOD. On the contrary, instead of being a theory, it is an economic certainty.

Mr. LITTLE. They are still studying such "economic certainties" in Egypt and India after 3,000 years.

Hon. ADDISON T. SMITH,

FEBRUARY 21, 1924.

Chairman Committee on Irrigation and Reclamations, House of Representatives, Washington, D. C. DEAR MR. SMITH: Having forgotten to comply this morning with one of the requests of Judge Raker, one of the members of your committee, I desire to make a supplemental statement. He asked that I supply the committee

with cases holding that the riparian system does not exist in the seven States which I mentioned, namely, Arizona, New Mexico, Utah, Nevada, Wyoming, Idaho, and Colorado.

The cases having bearing upon this question may be classified into those of the State courts and those of the United States Supreme Court.

As for the State cases, I refer you to the following, although many others Icould be cited:

Arizona Clough v. Wing (2 Ariz. 371).

Colorado; Yunker v. Nicholas (1 Colo. 151); Coffin v. Lefthand Ditch Co. (6 Colo. 443).

Idaho: Drake v. Earhart (2 Idaho, 750).

Nevada Jones v. Adams (19 Nev. 78).

Wyoming: Farm Investment Co. v. Carpenter (9 Wyoming, 110).

New Mexico: Trombley v. Luterman (6 New Mexico, 15).

Utah: Stowell v. Johnson (7 Utah, 215).

As for Federal cases, it may be said that they are in confusion as to whether or not prior to the statehood of these States the Federal Government had riparian rights and as to whether since statehood the Government has any such rights, and as to the related question as to whether in point of political or legislative power a State may select its own water system, whether appropriation or riparian. There are no Federal cases as directly to the point on either side of these questions as could be wished.

Taking the Federal cases, however, as they are, the following support the view that it is within the power of a State to choose the appropriation system to the exclusion of the riparian system if it desires to do so, and therefore to exclude riparian rights no matter by whom owned:

Krall v. United States (79 Fed. 241 (1897)).

Kansas v. Colorado (206 U. S. 46 (1906)).

Bourquillas Land & Cattle Co. v. Curtis (213 U. S. 564 (1909)).

On the other hand, some Federal cases somewhat indicating the opposing view are:

Sturrv. Beck (133 U. S. 541 (1889)).

Winter v. United States (207 U. S. 564 (1918)).

These Federal cases would well merit discussion, but time precludes. I simply state that the net result of such discussion would show that the more dominant opinion of the United States Supreme Court is to the effect that States have the power, if they wish, in the arid regions, to exclude the riparian system in favor of a complete appropriation system. The practical consideration may be added that, since the States above enumerated have already adopted the appropriation system to the exclusion of every trace of the riparian system, and have done so in the belief that they have the legal power so to do, it is not likely that the Supreme Court ever will disturb the action they have taken but will find a means and theory upon which to uphold it.

Six of the seven States of the Colorado River basin are among the States enumerated in the foregoing list. When the Federal Government enters these States with the reclamation or power project, the Government does so as would any other water user. In other words, the Government must make an appropriation under the laws of the particular State entered, just as is required by the laws of that State from any one else expecting to make an appropriation. There is nothing in any theory of proprietary right in respect to the water that gives to the Federal Government any greater power or right than would be possessed by a private person, for in these States the Federal Government, although owning much land, does not own the water or even a right to use the water except as and until it becomes an appropriator, whereupon while still not owning the water itself while in the stream the Government would become the owner of a right to use the water-in other words, the owner of a water right of the appropriation kind or variety.