U.S. Supreme Court HINDERLIDER v. LA PLATA RIVER & CHERRY CREEK DITCH CO., 304 U.S. 92 (1938)

[Page 304 U.S. 92, 98]

and during the summer months little water is available for irrigation. In each State the water of the stream has long been used for irrigation; and each adopted the so-called appropriation doctrine of water use. [Footnote 2] Under that doctrine the first person who acts toward the diversion of water from a natural stream and the application of such water to a beneficial use has the first right, provided he diligently continues his enterprise to completion and beneficially applies the water. The rights of subsequent appropriations are subject to rights already held in the stream.

[Page 304 U.S. 92, 100]

Creek Ditch Co., 291 U.S. 650, 54 S.Ct. 557. The case was then retried by the Distric Court on the same pleadings and evidence; and, pursuant to the opinion of the Supreme Court of Colorado, a decree was entered which, after reciting in substance the facts above stated, declared: '6. That the said La Plata River Compact, entered into between the States of Colorado and New Mexico with the consent of the Congress of the United States of America, does not constitute a defense to the actions of said defendant water officials complained of by plaintiff, and is not available to said defendant water officials, as a legal defense or justification for their acts in closing and shutting down the headgate of plaintiff and depriving the said plaintiff, thereby, of its right to the use of the waters from said La Plata River for irrigation purposes, as provided by the terms and provisions of said decree of adjudication of January 12, 1898.'

The decree specifically: '(3) Enjoined and commanded (the defendants) to permit the diversion through the plaintiff's headgate (of) water for plaintiff's ditch in accordance with the terms of said decree at any and all times when there is water in said stream to which said decree, under its terms and conditions would apply:'

This second judgment of the trial court was affirmed by the Supreme Court of the State; an additional opinion being delivered by the court, and a dissent by a different justice. 101 Colo. 73, 70 P.2d 849. An appeal to this Court was allowed by the Acting Chief Justice of the State. [Footnote 3] Pursuant to the Act of Congress, August 24, 1937, c. 754, 50 Stat. 751, 28 U.S.C.A. 401, 349a, 380a and note 17 and note, the attention of the Attorney Gen-

[Page 304 U.S. 92, 103]

Kansas v. Colorado and was adjudged untenable. Further consideration satisfies us that the ruling was right.'

And in New Jersey v. New York, 283 U.S. 336, 342, 343 S., 51 S.Ct. 478, 479, the Court said of an interstate stream: 'It offers a necessity of life that must be rationed among those who have power over it. New York has the physical power to cut off all the water within its jurisdiction. But clearly the exercise of such a power to the destruction of the interest of lower States could not be tolerated. And on the other hand equally little could New Jersey be permitted to require New York to give up its power altogether in order that the river might come down to it undiminished. Both States have real and substantial interests in the River that must be reconciled as best they may.'

The decree obviously is not res judicata so far as concerns the State of New Mexico and its citizens who claim the right to divert water from the stream in New Mexico. As they were not parties to the Colorado proceedings, they remain free to challenge the claim of the Ditch Company that it is entitled to take in Colorado all the water of the stream and leave nothing for them. [Footnote 4]

[Page 304 U.S. 92, 106]

ment of the water of interstate streams have been common. [Footnote 11]

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section 237(a). Rust Land & Lumber Co. v. Jackson, , 39 S.Ct. 424. The appeal must therefore be dismissed. But in holding that the State Engineer and his subordinates should be enjoined from taking action required by the Compact the State Court denied an important claim under the Constitution which may be reviewed on certiorari by this Court under section 237(b), as amended, 28 U.S.C.A. 344(b). For the decision below necessarily rests upon the premise that at the time the compact was made Colorado was absolutely entitled to at least 58 1/4 cubic feet of water per second regardless of the amount left for New Mexico. The judgment cannot stand if this determination is erroneous. For whether the water of an interstate stream must be apportioned between the two States is a question of 'federal common law' upon which neither the statutes nor the decisions of either State can be conclusive. State of Kansas v. Colorado, 206 U.S. 46, 95, 97 S., 98, 27 S.Ct. 655; Connecticut v. Massachusetts, 282 U.S. 660, 669, 671 S., 51 S.Ct. 286, 289; New Jersey v. New York, 283 U.S. 336, 342, 343 S., 51 S.Ct. 478, 479; Washington v. Oregon, 297 U.S. 517, 528, 56 S.Ct. 540, 545. Jurisdiction over controversies concerning rights in interstate streams is not different from those concerning boundaries. These have been recognized as presenting federal questions. [Footnote 12]

[Page 304 U.S. 92, 111]

parties to this suit and cannot be made so. The contention is unsound. The cases are many where title to land dependent upon the boundary between States has been passed upon by this Court upon review of judgments of federal and of State courts in suits between private litigants. [Footnote 13]

REVERSED.

Mr. Justice CARDOZO took no part in the consideration or decision of this case. Footnotes

[Footnote *] Rehearing denied 59 S.Ct. 55, 83 L.Ed. --.[ Hinderlider v. La Plata River & Cherry Creek Ditch Co. (1938) ]

Footnote 1 The Compact had its inception in 1921 when the legislature of each state authorized the appointment of a commissioner who shall represent the State 'upon a Joint Commission ... to be constituted by said states for the purpose of negotiating and entering into a compact or agreement between said states, with consent of Congress, respecting the future utilization and disposition of the waters of the La Plata River, and all streams tributary thereto, and fixing and determining the rights of each of said states to the use, benefit and disposition of the waters of said stream, provided, however, that any compact or agreement so entered into on behalf of said states shall not be binding or obligatory upon either of said states or the citizens thereof, unless and until the same shall have been ratified and approved by the Legislatures of both states, and by the Congress of the United States.' Colo.Session Laws, 1921, p. 803, 1; Session Laws of New Mexico, 1921, c. 147, p. 323, 1.

The compact drafted by the commissioners was ratified by the General Assembly of New Mexico on February 7, 1923, Session Laws of New Mexico, 1923, c. 7, p. 13, and by the General Assembly of Colorado on April 13, 1923, Colorado Session Laws, 1923, p. 696. The consent of Congress was granted by Act of January 29, 1925, 43 Stat. 796.

Footnote 2 Colorado Constitution, art. 16, 5, provides: 'The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.' Article 16, 6, provides in part: 'The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose.' For the law of New Mexico, see its Constitution, art. 16, 2 and 3.

Footnote 3 The first judgment in the trial court was entered June 16, 1930; the first judgment of the Supreme Court of Colorado on July 3, 1933; the dismissal by this Court of the first appeal on March 12, 1943; the second judgment in the trial court on May 12, 1936; the second judgment of the Supreme Court of Colorado on July 6, 1937.

Footnote 4 Washington v. Oregon, 297 U.S. 517, 528, 56 S.Ct. 540, 545. Compare Fowler v. Lindsey, 3 Dall. 411, 412; Arkansas v. Tennessee, 246 U.S. 158, 176, 38 S.Ct. 301, L.R.A.1918D, 258.

Footnote 5 Nine colonial boundary agreements are listed by Frankfurter and Landis, The Compact Clause of the Constitution-A Study in Interstate Adjustments (1925) 34 Yale L.J. 685, 730-732.

Footnote 6 Five agreements made under the Articles of Confederation have been found. See Frankfurter and Landis, supra note 5, at 732-734.

Footnote 7 Nine compacts were apparently executed in this period (although five of these were without express Congressional consent). See Frankfurter and Landis, supra note 5, at 735-737, 749-752. See also Ely, Oil Conservation through Interstate Agreement (1933) 371, 372, 389-391; (June 1936) 9 State Government 118; Dodd, Interstate Compacts (1936) 70 U.S.L. Rev. 557, 574. The agreement between New Jersey and New York in 1833 put an end to the boundary suit begun in 1829. New Jersey v. New York, 3 Pet. 461; Id., 5 Pet. 284; Id., 6 Pet. 323.

Footnote 8 See, also, Connecticut v. Massachusetts, , 51 S.Ct. 286; Id., 283 U.S. 789, 51 S.Ct. 356 (Connecticut River); New Jersey v. New York, 283 U.S. 336, 51 S.Ct. 478; Id., 283 U.S. 805, 51 S.Ct. 562 (Delaware River); Wyoming v. Colorado, 286 U.S. 494, 52 S.Ct. 621; Id., 298 U.S. 573, 56 S.Ct. 912 (Laramie River); Washington v. Oregon, 297 U.S. 517, 56 S.Ct. 540 (Walla Walla River). Three other water approtionment suits are pending in this Court. Colorado v. Kansas, Original No. 6 (Arkansas River); Nebraska v. Wyoming, 295 U.S. 40, 55 S.Ct. 568, Original No. 9 (North Platte River); Texas v. New Mexico, Original No. 11 (Rio Grande River).

Footnote 9 The long drawn out irritating boundary litigation, Rhode Island v. Massachusetts, 7 Pet. 651; Id., 11 Pet. 226; Id., 12 Pet. 657; Massachusetts v. Rhode Island, 12 Pet. 755; Rhode Island v. Mass., 13 Pet. 23; Id., 14 Pet. 210; Id., 15 Pet. 233; Id., 4 How. 591; was finally settled by a Compact. See Frankfurter and Landis, supra note 5, at 696, 737, 738.

Footnote 10 'We cannot withhold the suggestion, inspired by the consideration of this case, that the grave problem of sewage disposal presented by the large and growing populations living on the shores of New York Bay is one more likely to be wisely solved by co-operative study and by conference and mutual concession on the part of representatives of the states so vitally interested in it than by proceedings in any court however constituted.' At page 313 at 256 U.S., 41 S.Ct. 492, 498.

Footnote 11 Congress has consented to 15 such compacts, of which 5 have been ratified by two or more of the contracting States. See State Government, supra note 7, at 120-21. See, also, Ely, supra note 7, at 381-88; Dodd, supra note 7, at 574-78.

Footnote 12 Cissna v. Tennessee, 246 U.S. 289, 295, 38 S.Ct. 306; Compare Rust Land & Lumber Co. v. Jackson, 250 U.S. 71, 76, 39 S.Ct. 424. In Howard v. Ingersoll, 13 How. 381, this Court reversed the Supreme Court of Alabama's decision, 17 Ala. 780, locating the Alabama-Georgia boundary, which depended upon the construction of a cession of territory by Georgia to the United States in 1802. Compare Coffee v. Groover, , 8, S.Ct. 1. The decisions are not uniform as to whether the interpretation of an interstate compact presents a federal question. Compare People of N.Y. v. Central R.R., 12 Wall. 455; with Wedding v. Meyler, 192 U.S. 573, 24 S.Ct. 322, 66 A.L.R. 833, and Wharton v. Wise, 153 U.S. 155, 14 S.Ct. 783.

Footnote 13 Compare Handly's Lessee v. Anthony, 5 Wheat. 374; Howard v. Ingersoll, 13 How. 381; Poole v. Fleeger, 11 Pet. 185; Coffee v. Groover, 123 U.S. 1, 8 S.Ct. 1; St. Louis v. Rutz, 138 U.S. 226, 11 S.Ct. 337; Moore v. Maguire, 205 U.S. 214, 27 S.Ct. 483; Cissna v. Tennessee, 246 U.S. 289, 38 S.Ct. 306; Marine Ry. & Coal Co. v. United States, 257 U.S. 47, 42 S.Ct. 32; Smoot Sand & Gravel Corp. v. Washington Airport, 283 U.S. 348, 51 S.Ct. 474.