Title: Equitable Apportionment
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003090/00001
 Material Information
Title: Equitable Apportionment
Physical Description: Book
Language: English
Publisher: President's Water Resourses Policy Commission
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collection - Equitable Apportionment
General Note: Box 12, Folder 9 ( Water Resources Law - Vol #3 - 1950 ), Item 8
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003090
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

Couirt hweve left unascertained the scope of the general-wel-
fate' power.2 In the recent Ge&i ch case, the Court nItdd
congress hasa substantive power to tax "nd appropriate
ftr the general welfare, limited only by Qhe requirement
,that it shall be exercised for the common benefit as dis-
tinguished from some mere local purpose.
And then it asserted: 255
Thus the power of Congress to promote the general wel&
fare through large-scale projects for reclamation, iirigai-
tion, and other internal imprvement, is now ea clear
aa4 ample, itspower to accomplish the same results
directly through resort to strained interpretation of
the power overpavigation (italics supplied),
The italicized words render the dictum somewhat enigmatic.
The statement nevertheless seems to lean toward a view that
such projects may be validly authorized under the general-
welfare power. wstanf event, the sole test, indicated is that
the power must be exercised "for the common benefit as dis-
tinguished fromsome mere local purpose."
Equitable Apportonitent

!i i, riverr sis more:than an amenity,,i iis a treasure. "it
; offers a necessity of life that must be rationed amoag
; those who have power over it. ,Both;sXt
have real and substantial interests in the-River that
;must be reconciled as best they may b;?, 'T-aredieret
traditions and practices in different parts of the country
may lead to varying results, but the effort always is to
secure an 'equitible apportionment without quibbling
pver formulas.'
S, 297 8. at.8. .
2H United States V. GerlapkUAve Stock (Yo., 339 U. S. 725, 738 (1950), citing
Helvering v. Dai, 301 U.S. 619, 640 (1937).
839 I. 8. at 788.
Net Jersey v. Neb Yiorkc 288 t. A. 8.6, 842-343 (1931).

y#Th. id Mr, JusTtice Holme characterize the Suprei~ e court's
objective in disposing o complex cpatoversies over waters
of interstate streams in suits between states.
The uonstitition of the Ujnited States provides that: -
:- The judicial Power of the United States, shall be vested
in one supreme Court, and in such inferior Courts as the
S Congress may from time to time ordain and establish.
Moreover, the Supreme Court has origiia and exclie juris-
diction of "All ciitrovarsies between two or more States." s
The Court has passed upon a number of water'controversies
between states, most of them involving disputes concerning the
diversion and use of water from intestate streams." Disposi-
tion of these controversies has been based upon the principles
'o equitable app6rtionment. On the basis of equality of rights,
this doctrine fitd the decision to the facts of the controversy,
without adherencee to any particular formula. The doctrine
stems from the -907 opin ion in Kansas v. Colorado." Kansas
claimed the right to have the water o the :Arkansa River
flow into Kansas undiminishedj4 quantity and unim-
paired in quality.'" On the other hand, Colorado, denied
that it had in any substantial manner diminished the flow of
the Arkansas River into Kansas.62 The Court found that,
while Colorado had diminished the flow into Kansas by appro-
priation for irrigation purposes, the result had been reclamation
of large areas in Colorado, and that the ensuing diminution in

rU., S. DOosT.;.dAt. IIJ, i
"A!et of June 25; 1948, i1, 62 Stat. 889,927,28 U. S. 1251(a) (1) and
note following (SippIIH) ; U. 8. CoNST., Art. III, 2.
O"Other disputes Include: alleged interference with navigation-ooOthf
Carolina v. Georgia, 98 U. S. 4 (1876) and Wisconsr n v. Iinois, 278 U. S.
a7 (1929), 281 U.S. 179 (1980) ; alleged pollution--Mssourit Iinois,
180 UT. S. 208 (1601), 200 U 8. 496 (1906) and New York v. New 'erOgy,
249 U. S. 202 (1919), 256 U. S. 298 (1921); alleged flood damage--North
Dakota v. Minnesota, 256 U. S. 220 (1921), 263 U. S. 365 (1928).
S"206 U. S. 46 (1907).
m 206 U. S. at 50-52.
m206 U. S. at 66.

flow had caused little if any detriment in Kansas.2 Accord-
ingly, the Court refused to enjoin Colorado, saying:2
We must consider the effect of what has been done upon
the conditions in the respective States and so adjust the
dispute upon the basis of equality of rights as to secure
as far as possible to Colorado the benefits ofirrigation
without depriving Kansas of the like beneficial effects of
a flowing stream.
A few years later, Wyoming sued Colorado to enjoin a pro-
posed diversion of water out of the basin of the Laramie River
which rises in Colorado and flows northward into Wyoming."
After noting that both litigants adhered to the doctrine of prior
appropriation, the Court stated: "
We conclude that Colorado's objections to the doctrine
of appropriation as a basis of decision are not well taken,
and that it furnishes the only basis which is consonant
with the principles of right and equity applicable to
such a controversy as this is. The cardinal rule of the
doctrine is that. priority of appropriation gives superi-
ority of right. Each of these States applies arid enforces
this rule in her own territory, and it is the one to which

206 U. S. at 113-114, 117.
206 U. S. at 100. However, it was made clear that Kansas would be
free to return to the (Iourt for relief if Colorado's diversions increased to a
point where Kansas might Justly say that there is no longer an "equitable
division of benefits." 206 U. S. at 117. In subsequent litigation between
the two States, Kansas claimed that the water users in Colorado had in-
creased their use and sought a decree allocating the flow of the Arkansas
River. But relief was again denied on the grounds that Kansas had failed
to prove that the users .in:Colorado had so increased their use as to'work
serious detriment to user 'in Kansas. Colorado v. Kansas, 320 U. S. 383,
400 (1943).
Wyoming v. Colorado, 259 U. S. 419 (1922).
259 U. S. at 470. Compare Bean v. Morris, 221 U. S. 485 (1911) involv-
ing a water-right dispute in which there was a prior appropriation in Wyo-
ming and an alleged interference by diversion in Montana. There, the Court
said, "We know no reason to doubt, and we assume, that subject to such
rights as the lower State might be decided.by this court to have, and to vested
private rights, if any, protected by the Constitution, the State of Montana
has full legislative power over Sage Creek while it flows within that State."
221 U. S. at 486.

intending appropriators naturally would turn for guid-
Sance. The principle on which it proceeds is not less ap-
plicable to interstate streams and controversies than to
others. Both States pronounce the ule just and reason-
able as applied to the natural conditions in that region;
and to pOevent any departure from itthe people of both
incorporated it into their constitutions: It originated
S in the customs and usages of the people before either
S State catne into existence, and the courts of both hold
that their constitutional provisions are to be taken as
recognizing the prior usage rather than as creating a new
rule. These considerations persuade us that its applica-
tion to such a controversy as is here presented cannot be
S other than eminently just and equitable to all concerned.
Any suggestion, however, that the relative rights of contend-
ing states must depend upon the rules of law applied in such
states was negated iA Connecticut v. Massachusetts8." Con-
necticut sought to enjoin Massachusetts from diverting water
from the watershed of the Connecticut River for domestic pur-
poses, Both States recognized the common-law doctrine that
riparian owners have the right to the undiminished flow of the
stream free froeacontamination.2 After noting that the Court
will not exert its extraordinary power to control the conduct of
one State at the suitof another, unless the threatened invasion
of rights is of serious; magnitude and established by clear and
convincing evidence, the Court said: 26
For the decision of suits between States, federal, state
and international law. are considered and applied by this
Court as the exigencies of the particular ease may re-
S quire. The determination of the relative rights of con-
Stending States in respect of the use of streams flowing
through them does not depend upon the same consider-
ations and is not governed by the same rules of law that
are applied in such states for the solution of similar
questions of private right. And, while the mu-
2282 U. S. 660 (1931).
"282 U. S. at 662.
6 282 U. S. at 670.


nicipal law relating to like questions between individuals
is to be taken in to account, it is not to be deemed to have
Controlling weight. As was shown in Kansas v, Colo-
rado, *,' r*: ruch disputesware to be settled on the
basis of equality of right. BIrt this is not to say that
theremustibean equal divisidonof the waters of an inter-
state stream among the States through which it flows.
It means that the principles of right and equity shall
be applied having regard to the "equal level or plane
on which all the States staid, in point of power and
right, under our constitutional system" aid that, upon
the consideration of all the pertinent laws of the con-
tending States and all other relevant facts, this Court
will determine what is an equitable apportionment of
the use of suc. waters.
Shortly thereafter, the rule of equitable apportionment was
again followed in deciding New Jersey v. New York.0 limit-
ing the extent of diversion of waters of the Delaware River by
New York, the Court inserted that its effort in such edntro-
versies "always is to secure an equitable apportionment with-
out quibbling over forimulas." 27 :::
Still more recent~ ity,the doctrine was reaffirmed in Hinadr-
liderv. La Plata Rier' -& Cherry- Cteek Ditch Co."m Stating
that the "rule of equitable appdrtioniment wa settled by
Kansas v. Coqorado the Court declared that: *'
Whether the apportionment of the water of an inter-
state stream be made by compact between the lower and
upper States with the consentdf Congress or by a decree
of this Court,ithe apportionment is binding upon the
citizens of each State and all water claimants, even'-
where the State had granted the water rights before it
entered into the compact.
Passing note should be made of wo cases indicating situa-
tions where the Court will not intervene in interstate water
283 U. S. 336 (1931).
"283 U. S. at 342-343.
804 U. S. 92 (1938).
S304 U. S. at 102, 106.

disputes. Summarizing the circumstances involved in Wash-
inrton v: Oregon, the Court said: :*
SThe casecomes dovn to this: The cotirt is asked
upon uncertain evidence of prior right and still more
uncertain evidence of damage to destroy possessory in-
terests enjoyed without challenge for over half a cen-
ttry. ii such circumstances a~ injunction would not
iSiue if theionitest wert between private parties; at odds
About a boundary. Still less will it issue here in a con-
test between states, a contest to be dealt with in the large
iand ample way that alone becomes the dignity of the
litigants concerned.
And when the Court denied the relief sought in Arizona v. Cali-
fornia, it said that "there is no occasion for determining now
Arizona's rights to interstate or local waters which have not
been, and which may never be, appropriated." P27
While litigation is one method of settling complicated inter-
state water controversies, this method has obvious shortcom-
ings. It has been said that "Continuous and creative adminis-
tration is needed; not litigation, necessarily a sporadic process,
securing at best merely episodic and mutilated settlements,
which leave the central problems for adjustment unsolved."*
Moreover, litigti itn between states is often subject to serious
and retracted delayss: And the Court itself has suggested
that interstate Water disputes might better be solved by com-
pa1.t, saying:,

m 297 U. S. 517, 29 (19886).
"'288 U. 8. 428, 4684M (1831); see also Arszoma V. Caltfornia, 298 U. 8.
558 (196).
"Frankfurter and Landis, The Compact Clause of the Constitution, A
Study it Interstate Adjustments, 34 YALE L. J. 685, 707 (i925).
*Id. p. 705, n. 87.
m Colorado v. Kansas, 320 U. S. 38, 392 (1943). Similarly, In New York v.
Nep Jersey, the Court said, "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 cooperative 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 how-
ever constituted." 256 U. 8. 296, 813 (1921)..

S The reason for judicial caution in adjudicating the rela-
tive rights of States in such cases is that, while we have
jurisdiction of such disputes, they involve the interests
of quasi-sovereigns, present complicated and delicate
questions, ard,Tdue to the possibility of future change of
.conditions, necessitate expert administration rather than
judicial imposition of a hard and fast rule. Such con-
troversies .may appropriately be composed by negotia-
tion and agreement, pursuant to the compact clause of
the federal Constitution. We say of this case, as the
court has said of interstate differences of like nature,
that such mutual accommodation and agreement should,
if possible, be the medium of, settlement, instead of in-
vocation of our adjudicatory power.

.Interstate Compacts

The Constitution of the United States provides that:2
No State shall, without the consent of the Con-
gress, enter into any Agreement or Compact
with another State *
The Supreme Court has said that it discerns no difference be-
tween "compact" and "agreement," except that the former is
generally used with reference to more formal engagements.
Compacts and agreements cover "all stipulations affecting the
conduct or claims of the parties." 80 Nor does the Constitu-
tion "state when the consent of Congress shall be given,
whether it shall precede or may follow the compact made, or
whether it shall be expressed or may be implied." 2 8
Noteworthy in this connection is the fact that, in 1911, Con-
gress gave blanket consent to the states for compacts "for'the
"U. S. Co(sT., Art. I, 110, cl. 3. This pirovsion apparently seemed 'le
sirable to the framers of the Constitution and evoked little comment, either
in the Convention debates or in The Federalist papers. See Barror v.
Baltimore, 7 Pet. 243, 248 (U. S. 1833) ; I Bryce, THE AMERICAN COMMON-
WEALTH, 326 (1941) ; Madison in THE FEDERAIST, No. 44.
Virginia v. Tennessee, 148 U. 8. 503, 520 (1893).
S148 U. S. at 521. See also W.Thrtot Wise, 153 U. S. 155, 173 (1894).

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