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but are compelled to take it intermittently and irregularly, at such times as floods come, regardless of the particular needs of their crops for water at the time. While the Kansas water users have had their supply reduced to that provided by flood waters, they are even now having that last source of supply gradually taken away from them. Numerous dams and storage works have been built, and others are now in the process of construction, the purpose of which is to store the flood waters of the river and its tributaries and apply such water to the irrigation of additional lands in Colorado. Unless some action is taken to protect the farmers under the Kansas canals they will soon find themselves entirely without water, and irrigation works and water rights, worth millions of dollars, will eventually become worthless.

While the Kansas ditches have had to contend with this shortage of water, the canals across the line in our neighboring states have been operating under quite different conditions. That the irrigation canals

in Colorado, most of which were built subsequent to those in Kansas, have appropriations greatly in excess of their needs and are diverting unnecessarily large quantities of water, often to the detriment of their land, is best told in the words of the division engineer of irrigation division No. 2, which comprises the Arkansas valley in Colorado. In the 1917-1918 biennial report of the state engineer to the governor of Colorado, he says:

"The decrees entered in this water division are uniformly and greatly excessive in amounts, and under the ditches given these excessive decrees the acreage irrigated has been continuously increased and the use of water under the direct-flow ditches, where the water is used merely because it is in the river, whether it is needed or not, has led to great waste. This excessive use of water has been indulged in by the users to such an extent that thousands of acres of land have been turned to seepage and become waste. An estimate of the amount of water actually diverted from the river for the use of irrigation of lands under the various ditches shows that there is a variation in the amount diverted in proportion to the lands irrigated, running from practically one acre foot up to as high as ten acre feet to the acre."

The state of Colorado takes the attitude that it is absolute owner of all the water within its borders in interstate streams and that it is entitled to its use regardless of the effect of such use upon interests outside of the state. This attitude is aptly summed up by W. W. Follett, consulting engineer of the International (Water) Boundary Commission, in an address entitled "Irrigation on the Rio Grande," delivered at the annual session of the National Irrigation Congress, held in Albuquerque, N. M., September 29 to October 3, 1908, in which, referring particularly to the use of the waters of the Rio Grande in New Mexico, Texas and the republic of Mexico, he said:

"The Colorado people claim that under their state constitution they are entitled to all of the water which falls on their territory, regardless of prior rights outside of the state on streams which leave it, but their contention does not seem to be sustained by the courts, and it surely is not equitable. There is no logical reason why an imaginary line across a stream should give the landowner above that line a right to take the property of the man below it, whether it be a county, state or international boundary. For in an irrigated country the land has no value with

out the water, and the value of the property rests in the latter. If a man's water is taken from him he is robbed, whether or not an imaginary line crosses the stream of supply between him and the robber."

The fact that many of the most important rivers flowing through the semiarid states rise in the mountains of Colorado, and that Colorado takes this uncompromising, and manifestly unfair attitude toward prior irrigation interests in lower states, has involved her in water controversies with all of the neighboring states and many of the more distant ones. Many expensive suits have been instituted against the state and ditch. companies within it, and large sums of money ($50,000 each by several sessions of their legislature) have been appropriated by their legislature to aid in defending these suits. More than $38,000 has been spent by that state on the Kansas suits alone, besides equal amounts in some instances by the defendant ditch companies. Such suits will continue either until Colorado's claim of a constitutional right to the exclusive use of the water in streams crossing her borders has been upheld by the United States supreme court or until she is willing to enter into agreements with other states for an equitable division of the water flowing in interstate streams.

Recently the Colorado authorities have seemed somewhat more disposed to settle these controversies by agreement. In his 1917-1918 biennial report the attorney-general says, with reference to the Rio Grande river:

"New Mexico, recognizing the situation upon the Rio Grande river to be far from satisfactory, desires to treat with Colorado concerning possible settlement of disputes upon the stream with reference to interstate waters, and should be accorded that opportunity.

"If competent commissioners, prudently selected from our ablest and best advised citizens, free from political favoritism, may be chosen, devoted to the future welfare and interest of the state, and who will enter upon their duties with that breadth of view and yet singleness of purpose required upon such momentous undertakings, then the legislature should take some action to meet the situation. If such a method of settlement could be adopted on all our interstate streams, litigation could be avoided, if unaffected by certain bureaus whose ultimate object appears to be the overthrow of all state control of streams and the substitution of complete Federal control.

"The commissioners for Colorado should be selected with utmost care, regardless of politics and with a full realization of the fact that any such interstate agreement afterwards ratified by the legislatures of the two states and by Congress would forever bind Colorado in her use of this valuable river."

As recently as August, 1920, a conference of governors and state engineers was called by the League of the Southwest to adjust the Colorado river problems equitably among Colorado, Idaho, Arizona, Wyoming, Nevada, Utah, New Mexico and California, so that litigation might be avoided. This conference, according to newspaper reports, was held in Denver. The governor and state engineer of Colorado met with them to work out a solution of the water controversy. Whether this attitude on the part of the Colorado officials toward the water problems on the western slope is due to a more neighborly feeling toward the adjoining states, or to the wise expedient of avoiding litigation with the south

western states, is not known. While the state of Kansas has spent a few thouand dollars, or in some instances has given no aid in defending the water rights of its citizens, it is evident that such states as California and Arizona, with their semitropical fruit and long staple cotton, would not hesitate to put millions into suits involving their water rights. The chief interest lies in the fact that if Colorado consents to an apportioning of the waters on the western slope by agreement or compromise it will have to abandon its claim to the absolute ownership of all the waters falling within its borders. Having abandoned it on the western slope, it will be difficult to maintain it on the eastern slope, and sooner or later it will have to treat with the states on the eastern slope on a compromise basis. It may, therefore, be possible for Kansas, either alone or in conjunction with other states, to work out some satisfactory adjustment of the water controversy with Colorado.

There are now between 460,000 and 500,000 acres irrigated from the Arkansas river in Colorado, and approximately 60,000 from that source in Kansas. Kansas does not ask for water for the development of new projects or the irrigation of additional land, but wants only an equitable share of the water for the land remaining under its ditches, which ditches are prior in time to nearly all of those in Colorado. Upon the statement of their engineers, many of the Colorado ditches are diverting water greatly in excess of their need and often to the injury of their land. Considering these facts, it seems reasonable that some agreement could be worked out by which the Kansas ditches could be allotted a fair share of the water, and further, that the Colorado ditches would suffer little if any permanent injury from such a division of the water.

RECOMMENDATIONS OF THE IRRIGATION COMMISSIONER.

The irrigation commissioner wishes to recommend that the legislature authorize the governor to appoint a committee whose duty it shall be: First, for the purpose of making additional litigation unecessary, to try and make some satisfactory agreement with the Colorado authorities for the equitable apportionment of the waters of the Arkansas river between the water users of the two states, such an agreement to be subject to the approval of the legislatures of the respective states; second, if unable to reach such an agreement, to consult with the proper authorities of other states involved in water controversies with Colorado for the purpose of forming an organization of such states to bring united action against Colorado-a report of their progress and recommendations to be made to the legislature at its next session.

In the meantime the irrigation commissioner should secure stream-flow records of the Arkansas river and the Kansas ditches to determine the amount of water coming into Kansas from Colorado, and the amount` diverted by the various Kansas ditches. Such records seem essential if the Kansas water users are to prove to a court that they are not getting the water they are justly entitled to. Colorado has a daily record of the amounts of water diverted by the various ditches in that state, and also a record of the amounts of water flowing in her rivers at various locations. Kansas has no record and does not know how much water is re

ceived by the various ditches, nor do the ditch companies themselves know how many acre feet of water they get. In addition to that, the only information Kansas has on the amount of water flowing into the state is that obtained from Colorado's records.

Our laws grant the right to corporations and individuals to appropriate water for purposes of irrigation in aid of agriculture. Acting under this authority our citizens have constructed irrigation works costing hundreds of thousands of dollars and have invested millions in property dependent upon the exercise of such right for its value. It is, therefore, an obligation of the state to protect its citizens in the lawful use of such water. The law, in granting this right, also limited the right of appropriation of water to its beneficial use. For that reason no agreements affecting the water rights as between water users in adjoining states should be made, or priorities for the use of water sold by corporations or individuals in one state to those in another, without the consent of the state. Therefore, any action, the purpose of which is to adjudicate the water rights between two states, should be taken only by the states themselves. If an equitable share of water can be obtained only by a process of law, the state of Kansas should bring such action as is necessary in the supreme court of the United States, prosecuting such action vigorously to a definite conclusion.

The irrigation commissioner is of the opinion that whenever litigation between the water users in Kansas and Colorado is necessary, the state should act on behalf of the Kansas water users, even if it would require the water users themselves to provide counsel or part of the necessary funds. Such action would not only be more direct and conclusive, but the added prestige of the state would do much to effect a just decision.

Of the irrigated acreage in Kansas 20,000 is now being irrigated by pumping, and 60,000, or 75 per cent, by the ditches referred to in this report. It would, therefore, seem that since the state is sufficiently interested in irrigation to appropriate money to encourage the expansion of irrigation by pumping, it should also take sufficient action to protect the water users in the Arkansas valley in the rightful use of their water.

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